Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3538/2019 in
S.C Suit No.7549/1997. 1 Order.
MHCC010096342019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3538 OF 2019
IN
S.C. SUIT NO. 7549 OF 1997
(H.C. Suit no. 3861 of 1997)
Miss Renuka Tarachand Takumal ... Plaintiff
V/s.
Mr. Ashwin Vallabhdas Mehta ... Defendant
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 08-09-2023
Appearance:-
Ld. Advocate Smt. Nikita Bhavsar, for the plaintiff.
Ld. Advocate Shri. Ishwar Badigannavar, for defendant.
ORDER
1. Defendant has taken out this notice of motion for framing
three additional issues.
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NM No.3538/2019 in
S.C Suit No.7549/1997. 2 Order.
2. Plaintiff filed reply affidavit and strongly opposed the
notice of motion.
3. I have heard advocate for the defendant and advocate for
the plaintiff on notice of motion.
4. Plaintiff has filed present suit for damages of Rs.1 crore
alleging that, defendant No.1 cheated plaintiff by performing fake and
false marriage with her despite his first wife is alive. Plaintiff has
claimed exemption for payment of Court Fees in the suit by virtue of
notification dtd.01.10.1994. Plaintiff has shown date of cause of action
dtd. 21.09.1994 by contending that, she got knowledge of her
deception and fake marriage on 21-09-1994, when Marriage Registrar
informed that no marriage between plaintiff and defendant dtd.
20.04.1993 was registered in record.
5. It appears from contentions in the notice of motion and
reply affidavit as well as the plaint that, plaintiff has alleged that
defendant No.1 allegedly performed registered marriage without
recording the same in the record of Marriage Registrar and also calling
persons purported marriage Registrar on 20.04.1993. Plaintiff is seeking
exemption from Court Fees as per notification dtd. 01.10.1994 issued
for exemption to pay court fees to certain class of women litigants.
Though plaintiff relied on one citation mentioned in Para-37 of the
plaint, but its copy is not placed on record, so as to go through facts and
ratio law laid down in the said ruling.
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NM No.3538/2019 in
S.C Suit No.7549/1997. 3 Order.
6. Advocate for the defendant relied on Girish Kanaiyalal
Munshi V/s. Sudha Girish Munshi and others, 2008 (110) Bom LR
1524. In this ruling, the Hon'ble Division Bench of our parent High
Court has considered various earlier rulings and the subsequent
notification issued by State Government on 23.03.2000 in respect of
women litigants and laid down that, the women litigants are exempted
from payment of Court Fees in respect of “property disputes arising out
or concerning matrimonial matters”.
7. Plaintiff relied upon earlier notification of the year 1994. Said
notification is superseded by notification dtd. 23.03.2000, which
clarified that the women litigants exempted from paying Court Fees in
respect of property dispute arising out of concerning matrimonial
matters. The Hon'ble High Court has clearly observed in clause (d) of
the para- 26 of the ruling of Girish Munshi (supra) that, the term
'matrimonial matters' cannot be replaced by 'matrimonial relationship'.
The matter must be arise out of matrimonial matter and the parties of
matrimonial relationship cannot take benefit of that notification.
8. In the instant case, the plaintiff has filed suit for damages
as a women and asserted that defendant performed fake marriage with
her and same is denied by the defendant. The suit is not for any
property dispute arising out of matrimonial matter and plaintiff is not
claiming herself as wife of defendant. Hence, the additional issues in
respect of exemption from payment court fees and ad valorem fees in
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NM No.3538/2019 in
S.C Suit No.7549/1997. 4 Order.
the suit has to be framed.
9. Ld. Advocate for the defendant sought to frame the 3rd
additional issue in respect of limitation. As noted above, plaintiff has
shown date of accrual of cause of action on 21.09.1994, when she got
knowledge of her deception by way of fake marriage performed by the
defendant. Defendant denied the said date of cause of action in written
statement. Plaintiff contended in her reply affidavit the date 16.09.1997
as date of cause of action on the basis of notice issued to defendant on
30.08.1997 for starting the period of limitation, but it has not been
pleaded in plaint. In view of disputing date of cause of action, issue of
limitation needs to be framed. It appears from the issues framed earlier
in this matter the issue of limitation is not framed. Whether the suit is
within limitation based on knowledge of deception of plaintiff is a
matter of trial. Therefore, issue of limitation needs to be framed.
10. Ld. Advocate for the defendant sought to frame issue of
limitation coupled with plaint liable to be dismissed under Order VII
Rule 11(d) of the CPC. issue of limitation needs to be framed on the
basis of pleadings in plaint. Hence, issue in respect of limitation is not
required to be framed as mentioned in the notice of motion.
11. For above noted reasons, the notice of motion deserves to
be allowed. Accordingly, I pass following order :
ORDER -
1. Notice of Motion No. 3538 of 2019 is partly allowed to the
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NM No.3538/2019 in
S.C Suit No.7549/1997. 5 Order.
extent of prayer clause (a).
2. Additional issues in respect of payment of Court Fees and
limitation are framed separately.
3. Notice of Motion No. 3538 of 2019 is disposed off.
(N.G. Shukla)
Judge
City Civil Court,
Date :08-09.2023 Gr. Bombay.
1. Dictated on : 08-09-2023
2. Transcribed on : 11-09-2023
3. Checked and Signed on : 13-09-2023
4. Delivered to Certified :
Copy Section on
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NM No.3538/2019 in
S.C Suit No.7549/1997. 6 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13-09-2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 08-09-2023
Judgment/Order signed by P.O. on 13-09-2023
Judgment/Order uploaded on 13-09-2023
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