Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.3958/2019 ..1.. Suit No.2293/2019
CNR No.MHCC010109592019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.3958 OF 2019
IN
SUIT NO.2293 OF 2019
Mr. Nilkant Dattaram Pawar .. Plaintiff
Versus
Mrs. Darshana Krishna Pawar and Ors. .. Defendant
Mr. Suresh Gole, advocate for plaintiff.
Mr. Vikas V. Khanolkar, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 10th January, 2020
ORAL ORDER
Notice of motion is taken out by defendants for rejection of
plaint as per provisions of Order VII Rule 11(d) of Civil Procedure Code.
2. It is the contention of defendants that plaintiff has filed the suit
for the property located at Sewree, Mumbai. Defendants are lawful
tenants of the suit premises and are in exclusive possession of the suit
premises since prior to 1990. Plaintiff has already left the suit premises
prior to year 1990 and living separately at his residence. Plaintiff has
not taken any legal steps to seek redressal against his alleged forcible
dispossession for 12 years. Thus, present suit is not filed within
limitation. More so, he has not filed any legal proceeding under Specific
Relief Act against the suit filed by late husband of defendant No.1. As
per order dated 04.08.2011 passed in Appeal No.224 of 2011 plaintiff
was directed by the Hon'ble High Court to adopt appropriate
proceeding. But instead of challenging the suit filed by her late
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husband; plaintiff only defended the said suit. Plaintiff has not filed any
suit after the said suit was dismissed against him or after he was
instructed to adopt legal proceeding as per order passed by Hon'ble
High Court. It is further contended that in present suit plaintiff has not
mentioned the cause of action as to when it has arose as per provisions
of Civil Procedure Code and therefore, present plaint is to be rejected as
per Order VII Rule 11 (d) of CPC. Accordingly, defendants made prayer
in above terms.
3. Plaintiff filed reply and opposed notice of motion. It is
contended that his claim for possession on the basis of earlier
possession is within limitation period of 12 years in view of Article 64 of
Limitation Act. He also filed additional reply and further contended
that until 2008, he was in enjoyment and possession of suit room viz
Room No.19 in Chawl No.19, Ravji Shojpal Chawl, Bombay. His (late)
brother Krishna dispossessed him and obtained restraint order in suit
No.1828 of 2008. Said suit was disposed of by this Court with findings
that plaintiff was in actual possession of said room and Krishna
dispossessed him and obtained restraint order. Against the said
Judgment and order of this Court, his (late) brother filed First appeal
No.244 of 2011 before Hon'ble High Court. The Hon'ble High Court as
per order dated 04.08.2011 permitted him to adopt appropriate legal
remedy to enter the suit premises. In the meantime, his brother Krishna
expired leaving behind defendants as his heirs. Said appeal was abated.
In above back ground, plaintiff prayed for dismissal of notice of motion.
4. Perused notice of motion, affidavit in support of it, reply and
additional reply of plaintiff and plaint. Heard respective counsel for
parties.
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5. At the outset, I would like to mention that present notice of
motion is taken out by the defendants on the ground that suit is barred
by limitation. In the present case on perusal of plaint it cannot be said
that suit is apparently barred by law of limitation as it is clear from
discussion made in later part. It is settled law that Issue of limitation is
mixed question of law and fact. That being so, that issue has to be
decided after conducting fullfledged trial on adducing evidence by the
parties.
6. On perusal of plaint it is clear that although plaintiff has claimed
relief in the form of injunction but in fact, he has claimed relief of joint
possession of suit premises. In para 7 of plaint, it is specifically averred
that around June, 2008 Late Krishna Dattaram Pawar illegally
dispossessed plaintiff from suit premises. So also, in para 17 it is
mentioned that after order dated 04.08.2011 in CA No.452 of 2011 in
FA No.224 of 2011, plaintiff attempted to resume joint possession of
suit flat. He also mentioned about lodging of complaint on 03.01.2018
with police station RAK Marg police station for police help. It is further
contended in para 18 that in first week of July 2019 plaintiff along with
his family members again went to use, enjoy joint possession of suit flat
but defendants obstructed their entry into suit premises. From the
above averments in the plaint it is clear that plaintiff has specifically
mentioned about cause of action arose for filing of present suit. So, it
cannot be said that plaintiff has not disclosed any cause of action for
filing of suit.
7. It is pertinent to note that suit has been filed on the basis of
previous possession of suit premises claiming joint possession of suit
premises. In such a case, if Article 64 of the Limitation Act is invoked
then period of limitation is 12 years from the date of dispossession. In
present matter as pointed above plaintiff has claimed to be dispossessed
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from the suit premises around June, 2008 and present suit has been
filed in the year 2019 claiming joint enjoyment & use of suit premises.
So, considering above facts apparently it cannot be said that suit is
barred by limitation. May it be so, as discussed earlier issue of limitation
is mixed question of fact and law so same can be determined after
adducing evidence by the parties.
8. It is pertinent to note that from copy of order dated 04.08.2011
in CA No.452 of 2011 passed by Hon'ble High Court it is apparent that
during pendency of suit there was injunction operating against third
respondent i.e. plaintiff herein. Copy of said injunction order is not
placed on record by defendants so as to show nature of temporary
injunction granted by the Trial court. Had there would have been
restraint order against the plaintiff from entering into suit premises then
he could not have filed suit during the period in which such order was
in existence and such period is required to be excluded in view of
section 15 of the Limitation Act while computing the period of
limitation. Therefore, it is matter of evidence as to what nature of
restraint order was passed by the trial Court in the said suit and as to
whether plaintiff is entitled to claim exclusion of any period for the
purpose of computing period of limitation.
9. It is also to be seen whether obstruction if any was caused to the
plaintiff by the defendants from enjoying joint possession of suit
premises after passing of order dated 04.08.2011 by the Hon'ble High
Court in CA No.452 of 2011 and whether if any such act amount to
continuing Civil wrong are to be considered after adducing evidence by
the parties. That being so, question of limitation has to be decided on
merits after adducing evidence by the parties.
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10. From discussion made above I do not find merits in the
contentions of defendants at this stage therefore notice of motion
deserves to be dismissed. Hence, pass following order
ORDER
Notice of Motion No.3958 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 10.01.2020 Gr. Bombay
Typed on :10.01.2020
HHJ signed on :14.01.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
14.01.2020
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
10.01.2020
JUDGMENT/ORDER signed by P.O.
on
10.01.2020
JUDGMENT/ORDER uploaded on 14.01.2020
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