Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3448 OF 2019
(CNR NO.MHCC01009408 2019 )
IN
SUIT NO. 3334 OF 2018
Peer Mohd. Gafoor Mohd Shaikh )
(Since deceased) through his legal heirs )
1a. Mrs. Nazneen Shaikh And Ors )..Plaintiffs
V/s.
Mrs. Saeeda Anwar Khan ).. Defendants
Appearances :
Ld. Adv. M. A. Parab for plaintiff.
Ld. Adv. Suresh Gole for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 16/09/2022.
ORDER
1 This motion is taken out by defendant contending that the
plaint discloses the relationship of plaintiffs and defendant as gratuitous
licensee and landlord, therefore, this Court has no jurisdiction to try
and decide the suit. Consequently, prayed for framing of preliminary
issue under section 9A of CPC as to whether this Court has jurisdiction
to try and decide this suit.
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2 The plaintiff resisted the contention by filing reply
contending that the provisions of Section 9A of Code of Civil Procedure
has been deleted by virtue of Code of Civil Procedure (Amendment)
Ordinance 2018. He also denied the contention of defendant that
defendant is gratuitous licensee but claiming him a trespasser and
prayed for dismissal of motion.
3 It is not disputed that now the provision of Sec.9A of Code
of Civil Procedure, came to be deleted. However, as per law laid down
by the Hon'ble Supreme Court in a case of, Nusli Neville Wadia V/s.
Ivory Properties & others, reported in MANU/SC/1376/2019 and by
the Hon'ble Bombay High Court, in a case of, Shabbir Ibrahim
Mestry & another V/s. Anjum Rahim Mestry & others, reported in
2020(2) MLJ 374, the preliminary issue, which is framed by the Court
before date the commencement i. e. 27/06/2018 of an amendment of
Code of Civil Procedure (Amendment) Act, 2018, are to be decided as
if, the provisions of section 9A of Code of Civil Procedure has not been
deleted. And if, any petition pending for framing for preliminary issue
on date the commencement i. e. 27/06/2018 of an amendment of Code
of Civil Procedure (Amendment) Act, 2018, same may be disposed off
adding the issue of jurisdiction with the other issues. In the instant
matter, the motion for framing preliminary issue is filed on
16/09/2019, consequently, the motion for framing preliminary issues as
per the provisions of section 9A of Code of Civil Procedure is not
tenable.
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4 At the most, while framing issues, the issue regarding the
jurisdiction may be included. After framing of issues the defendant is at
liberty to apply for deciding the issue of jurisdiction as preliminary issue
under Order 14 Subrule 2 of Code of Civil Procedure.
5 In view of legal position of law, the motion deserves to be
dismissed. Hence, I proceed to pass the following order.
ORDER
1. Notice of Motion No.3448 of 2019 in Suit No.3334
of 2018 is hereby dismissed.
2. Notice of Motion stands disposed off accordingly.
(Order dictated & pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Gr. Mumbai
Dated : 16/09/2022 C.R. No.03,
Dictated on : 16/09/2022
Typed on : 16/09/2022
Signed on :
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“Certified to be true and correct copy of the original signed order”.
20/09/2022 ( Vidya Abhijit Mande)
at about 5.00 p.m. Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 16/09/2022
Order signed by Hon'ble Judge on : 17/09/2022
Order uploaded on : 20/09/2022
at about 5.00 p.m.
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