Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010126252019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4602 OF 2019
IN
S.C. SUIT NO.1527 OF 2016
M/s. Savla Constructions and others. ...Applicants
(Original Defendants nos.1 to 3)
In the matter of
Mr. Vilas Vasant Lad. ...Plaintiffs.
V/s.
M/s. Savla Constructions and others. ...Defendants.
Appearance:
Adv. Mr. E.A. Sasi for Plaintiff.
Adv. Mr. Taher Habshee i/b Taurus Legal for defendant no.1, 2 and 3.
Adv. Ms. Chaitra Rao for defendant no. 9 and 10.
CORAM : HIS HONOUR JUDGE
Anand P. Kanade
COURT NO.2
DATED : 6th December, 2023
ORAL ORDER
The present notice of motion is taken out by the defendant no.1
to 3 for rejection of plaint under order VII rule 11 of the C.P.C.
According to defendants, defendant no.2 and 3 are the proprietors of
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defendant no.1. Defendant nos.2 and 3 are the brothers. According to
defendants the plaintiff has filed the present suit on false, baseless and
untenable grounds. It is the case of defendants that as per plaintiff’s
own case as set out in the plaint it reveals that the subject matter of
present case has already been adjudicated by the Hon’ble Small Causes
Court at Gr. Bombay in R.A.D. Suit no.261/2010. The plaintiff has
already obtained an Order and Decree in respect of the same subject
matter. Plaintiff has for reasons best known to him failed and neglected
to apply for execution of the decree passed by the Small Causes Court,
and filed the present suit to adjudicate on the same cause of action.
Hence suit is barred by the principle of res judicata. As per averment in
the plaint cause of action has arisen in the year 2007 but the plaintiff
has filed the present suit in the year 2016. Hence this suit is barred by
the law of limitation. Plaintiff has undervalued the present suit and not
paid the appropriate Court fees. On the aforesaid grounds defendant
prayed to reject the plaint.
2. The plaintiff has filed his affidavit in reply and denying in toto all
the averments in the notice of motion. According to plaintiff the notice
of motion filed by the defendants is after thought and same is not
maintainable. According to plaintiff, defendant no.9 is the Company
which at present claims to be the owner of the suit building; and the
defendant no.10 is its Managing Director. The defendant no.9 and 10
started claiming to be the owner of the suit building after the decree
passed by the Small Causes Court. The issue involved in the present suit
was never an issue in the previous suit before Small Causes Court. The
cause of action for filing the present suit has arisen in March 2016 when
the plaintiff came to know about transfer of the suit building by
defendant no.1 to 8 to defendant no.9 and 10. Hence the present suit is
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not barred by the principle of res judicata and law of limitation.
According to plaintiff in order to delay the proceeding the defendants
have taken out this notice of motion. According to plaintiff in order to
defend the decree passed by the Hon’ble Small Causes Court defendant
no.1 to 8 are transferring the ownership of suit building to defendant
no.9 and 10. According to plaintiff he is a ready to pay the Court fees if
the Hon’ble Court comes to the conclusion that the present suit is under
valued. On the aforesaid grounds plaintiff prayed to reject the notice of
motion.
3. Heard both sides. Perused papers on record. It is the contention of
defendants that the present suit is barred by the principle of res judicata
hence suit is liable tobe rejected. After going through the papers on
record it reveals that the plaintiff had filed RAD Suit no. 261/2010
before the Hon’ble Small Causes Court at Bombay and that suit was
decided on 18.06.2013. In that suit plaintiff is declared as lawful tenant
in respect of the suit property and the defendants in that suit were
directed to execute necessary agreement with the plaintiff to provide
him permanent alternate premises of not lesser than the area presently
occupied by the plaintiff, in the newly constructed building in place of
old suit building. After going through the papers on record it reveals
that subject matter in the previous suit i.e., RAD Suit no. 261 of 2010
and in the present suit is same. The plaintiff has pleaded that he came
to know that defendant no.1 to 8 transferred the suit building to
defendant no.9 and 10. Hence he has filed the present suit against the
defendants. In the written statement defendant no.9 and 10 have
pleaded that by registered agreement dated 30.12.2008 and registered
assignment dated 04.12.2009 defendant nos.1 and 2 have transferred,
assigned and conveyed all their rights in the plot bearing City Survey
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no.1/583, Wadala Market, Katrak Road, Wadala Mumbai, including
developments rights thereto to Balaji Corporation Pvt. Ltd. (formerly
known as “High Hill Earth Infracon and farms Pvt. Ltd.”). The said
Balaji Corporation Pvt. Ltd. has vested rights in the said property and
has undertaken redevelopment of the said property and as such is a
necessary party to the present suit. Defendant no.9 and 10 further
averred that defendant no.9, is a separate entity and has no rights
whatsoever over the suit building or the suit property and has been
unnecessarily impleaded as a party defendant in the present suit. Hence
the suit is bad for misjoinder of parties. After going through RAD suit
no.261 of 2010 it reveals that the present defendant no.9 and 10 were
not the parties to that suit. Considering the averment in the written
statement of defendant no.9 and 10 and the fact that the defendant
no.9 and 10 were not parties to the previous instituted suit I am of the
view that the suit is not barred by the principle of res judicata.
4. Another contention of defendant is that the present suit is barred
by law of limitation and is liable to be rejected. According to defendants
as per the claim it reveals that cause of action to the present suit has
arisen in the year 2007 but the plaintiff has filed the suit for declaration
in the year 2016. Hence suit is barred by law of limitation. It is settled
that the question of limitation can be decided on the admitted facts. It
can be decided as a preliminary issues under Order 14 Rule 2(2)(b) the
Code of Civil Procedure. Once facts are disputed about limitation the
determination of the question of limitation also can not be made under
Order 14 Rule 2(2)(b) of the C.P.C. as a preliminary issue or any other
such issue of law which requires examination of the disputed facts.
Issue of limitation is a mixed question of law and facts. After going
through the pleadings in the plaint it reveals that the plaintiff has filed
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the present suit mentioning the cause of action that in or about March
2016 he came to know about the transfer of suit building by defendant
no.1 to 8 to defendant no.9 and 10. Considering the pleading in the
plaint I am of the view that the suit is not barred by the law of
limitation.
5. Another contention of defendant is that the suit is not properly
valued in and on that count suit is liable to be rejected. After going
through the pleading on record it reveals that the plaintiff has filed the
present suit for declaration. He valued the suit at Rs.1,000/- for the
purpose of Court Fees and Jurisdiction. Plaintiff has valued the suit
under section 6 of the (iv) (j) of the Maharashtra Court Fees Act.
Considering that fact I am of the view that the plaintiff has properly
valued the suit. I am of the view that defendants have not the made out
any ground for the rejection of the plaint as prayed. Hence I pass the
following order.
ORDER
Notice of Motion No. 4602 of 2019 is rejected with no order as to
costs.
(Anand P. Kanade)
Judge
City Civil Court, Gr.Mumbai
Date : 06.12.2023
Typed on : 08.12.2023
HHJ signed on : 02.01.2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 02.01.2024, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. Anand P. Kanade
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
06.12.2023
JUDGMENT/ORDER signed by P.O.
on
02.01.2024
JUDGMENT/ORDER uploaded on 02.01.2024
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