Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
CHAMBER SUMMONS NO.1819 OF 2019
(CNR NO. MHCC01-010313-2019)
IN
L.C.SUIT NO.4343 OF 2009
1. Jitendra Ashok Gangan & Anr. …. Plaintiffs
V/s.
1. Smt. Sundra @ Nanda Ashok Gangan & Ors. ...Defendants
CORAM: HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. MUMBAI
DATE : September 6th,2023
Adv. S. M. Suryawanshi for plaintiff.
Adv. Amar Ghodke for defendant Nos.1 to 3.
Adv. Ms.Deepali Patil for the defendants/BMC.
ORAL ORDER
1. This chamber summons is taken out by defendant
No.1 under Order VII Rule 11(b) of the Code of Civil
Procedure for rejection of plaint on the ground that plaint is
barred by law.
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2. Read Chamber summons, reply filed by the plaintiff.
Heard both the sides.
3. By this chamber summons defendant No.1 seeks
rejection of plaint mainly on following grounds:-
(a) Notice under section 527 of the MMC Act is
issued by advocate on the instruction of Smt.
Asawari Ashok Gangan, who is not plaintiff of
the suit. Hence, suit is hit by provisions of
section 527 of the MMC Act.
(b) Suit is not filed within limitation as prescribed
under sub clause (b) of Sub-section 1 of
Section 527 of the MMC Act.
Hence, I would like to discuss above points raised
by the defendant no1. For rejection of plaint as follows:-
4. Before discussing above points, it is necessary to
mention here that for deciding application under Order VII
Rule 11(d)of the Code of Civil Procedure, only averments in
the plaint are necessary and permitted to be taken into
consideration. The defence or contrary plea raised by the
defendant is not permitted to be taken into consideration
while deciding application under Order VII Rule 11(d)of the
Code of Civil Procedure. On minute perusal of averments in
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para- No. 14 of plaint it appears that plaintiff specifically
averred, “ they have given notice dated 09.08.1999 to MMC as
per provision of section 527 of the MMC Act.
5. It is the contention of defendant no.1 that alleged
notice is issued by Smt. Asawari Ashok Gangan, who is not
plaintiff to the proceeding. Therefore, notice issued by
plaintiff is bad in law. Secondly, it is submitted by defendant
no.1 that even if considering the notice as a valid the suit is
barred by limitation. Defendant no.1 placed his reliance in the
case of Akash Impex, Mumbai Vs. Municipal Corporation of Gr.
Mumbai reported in (2014 (1) MH.L.J. 498).
6. On the other hand, it is contended by plaintiff that
notice is valid. Question of limitation is mixed question fact
and law. Plaintiff placed his reliance in the case of Salim D.
Agboatwala and Ors. V/s. Shamalji Oddhavji Thakkar and Ors
( Civil Appeal No. 5641 of 2021 decided by Hon'ble Supreme
Court on 17.09.2021)
7. On going through the rival submissions and on
perusal of title clause of the suit it appears that plaintiff no.2
Nivedita is a minor. Present suit is instituted under the
guardianship of mother Smt. Subhadra @ Asawari Ashok
Gangan. In para Nos. 2, 4 and 5 of plaint, it is specifically
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averred by the plaintiff that maiden name of plaintiff's mother
was Kum. Subhadra Anant Pagare. After marriage her name
changes to Asawari Ashok Gangan from Kum.Subhadra Anant
Pagare. Present suit is instituted by minor through guardian
accordingly, notice under section 527 of the MMC Act is issued
by Guardian of plaintiff. Therefore, at this juncture, it cannot
be said that the suit is bad for want of notice under section
527 of the MMC Act.
8. Secondly, it is averred by defendant that suit is not
instituted within limitation. As per record and averments in
para No.14 of plaint after giving notice dated 09.08.1999
under section 527 of the MMC Act present suit is instituted by
minor plaintiffs on 10 t h January, 2006 but having verification
dated 10.12.2008. It is necessary to mention here that plaintiff
seeks declaration that they are tenants of the suit premises
with specific shed well mentioned in clause (a) of prayer
alongwith mesne-profit, mandatory injunction and perpetual
injunction. It is not the contention of defendant No.1 that
defendant no.5 BMC issued notice and same is under
challenged in the present suit. As per averments in the plaint ,
there is no notice issued by BMC is under challenged. It also
gathered from averments in para No.6 of plaint that the suit
premises is allotted by BMC on monthly rental basis. The case
laws relied by defendant No.1 is not supporting to his
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contention because in the present suit notice under section
354A of the MMC Act is not under challenged before this
Court. Dispute is not in respect of unauthorized construction.
The facts , circumstances and ratios laid down in the case laws
relied by the defendant No.1 is different from the present facts
and circumstances of the case. On the other hand, in the case
laws relied by the plaintiff is helpful to his case.
9. In the present case, at this juncture and as per the
averments in the plaint, it is gathered that suit is instituted by
issuing notice under section 527 of the MMC Act by the
guardian of the plaintiff. When the plaintiff claims that he
gain knowledge of the essential facts gives rise the cause of
action at a particular point of time. Apart from this, limitation
comprising of essential facts which moves from one hand to
another, as to the cause at a particular point of time for which
evidence of both the parties is necessary. Issue in respect of
limitation can be separately dealt with alongwith other issues.
Hence, at this juncture, it cannot be said that present suit is
bad for want of limitation. Accordingly, I proceed to pass
following order.
ORDER
1. Chamber summons No.1819 of 2019 is rejected.
2. Both the parties to take note of this order.
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3. Cost in cause.
4. Chamber Summons No.1819 of 2019 is disposed off.
Date-06/09/2023 (R. B. Parvekar)
Ad-hoc Judge, City Civil Court
Gr. Mumbai
D i c t a t e d o n : 0 6 / 0 9 / 2 0 2 3
Ty p e d o n : 0 6 / 0 9 / 2 0 2 3
s i g n e d o n :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08.09.2023 11.35 a.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. B. Parvekar (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
06.09.2023
JUDGMENT/ORDER signed by
P.O.on
08.09.2023
JUDGMENT/ORDER uploaded on 08.09.2023
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