Defendant filed a notice of motion claiming the specific relief suit was time-barred. The single judge dismissed the notice as misconceived, holding limitation should be decided during the suit's trial and that prima facie the suit appears within the six-month period.
Notice of motion is misconceived and liable to be dismissed.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.2137 OF 2006
IN
SUIT NO.4261 OF 1998
Balkrishna Bapu Khadang.. Plaintiff
Versus
Ashabai Kashid.. Defendant
Mr.Shailesh Redekar i/b. Mr.Karande for plaintiff
Mr.V.Y.Sanglikar for defendant.
CORAM :S.C.DHARMADHIKARI, J.
DATE:9th February 2009.
P.C.
.Heard learned Counsel appearing in
support of the notice of motion.
2.This is a defendant’s notice of motion
for dismissal of the suit on the ground that the
claim therein is ex facie time barred.
3.The plaintiff has filed an affidavit in
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reply and opposed this contention, essentially on
the ground that such a plea was raised earlier
and considered by this Court. It was negated
and, therefore, the same plea cannot be raised
again. I have perused the notice of motion and
the affidavit in support and reply. Mr.Sanglikar
appearing for defendant contends that the suit
was filed earlier in the City Civil Court. The
suit was filed on 15th October 1992. Thereafter,
the Court passed an order holding that it has no
jurisdiction and, therefore, the plaint was
returned for presentation to proper court. The
plaint has been presented on 7th August 1998. He
submits that the alleged dispossession is of 31st
July 1992 and hence, the claim is ex facie time
barred. He relies on a decision of the Supreme
Court reported in 2006(1) S.C.C. 364 (Harshad
Chimanlal Modi Vs. DLF Universal Ltd. Anr.)
4.In my view, it is not the case of the
defendant, at this stage, that the suit as filed
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was not within the period of six months which is
the period prescribed by section 6(2)(a) of the
Specific Reliefs Act, 1963. The submission in
the notice of motion is that dispossession
allegedly took place on 31st July 1992 and the
suit was filed on 15th October 1992 in the City
Civil Court. However, once the plaint is
directed to be returned to this Court, then, as
far as limitation is concerned, the date of
presentation to this Court would be the relevant
date.
5.Such a period is not stipulated by
section 6 but what has been pressed into service
is the Supreme Court decision. Therein, the
Supreme Court was considering an application
which was made by the defendant to the suit. It
is stated that the plaintiff filed a suit on the
Original Side of Delhi High Court for specific
performance of an agreement for sale, possession
and permanent injunction. The suit was filed in
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1988, written statement was filed by the
respondent- defendant in 1989 contesting the
claim on merits but without raising any objection
as to the jurisdiction. The suit was then
transferred to the District Court of Delhi in
1993. In 1997 issues were framed, which did not
include the issue of jurisdiction. After more
than eight years, an application was filed
seeking an amendment to the W.S. for raising
objection to the jurisdiction. The application
was allowed and on the basis of amended W.S.
additional issue was framed. Thereafter, the
plaint was returned for presentation to proper
court. Thus, in these facts and circumstances
noticed in paras 3 and 4 that the observations
relied upon by Mr.Sanglikar have been made. In
my view, at this stage, it cannot be decided as
to whether the claim is time barred.
Mr.Sanglikar would urge that the date of
presentation to this Court must be taken as the
period of limitation. In my view, this
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controversy can be decided at the hearing of the
suit. It is not necessary that this Court must
pronounce on the issue of limitation raised at
this stage. More so, when the plaintiff states
that the suit is filed within the period of six
months stipulated by law.
6.The reliance on para 4 of the affidavit
in reply, at this stage, can be said to be well
founded. Whether the law laid down in the
Supreme Court decision would be applicable and
that too in a case of dispossession forcibly and
without due process of law to a suit under
section 6 of the Specific Relief Act need not be
decided at this stage. All pleas in that behalf
are open for being raised when the suit is tried.
It is not necessary to go into the pleas raised
by Mr.Sanglikar today.
7.Having noticed that the suit was filed
within the period of six months of alleged
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dispossession, prima facie, the issue raised will
require further investigation. It is desirable
that it is decided at the stage of hearing of the
suit. Notice of motion is, therefore,
misconceived and is liable to be dismissed. It
is accordingly dismissed.
8.However, this order does not prevent the
defendant from applying for other reliefs and
more particularly of reduction in the amount of
royalty/ compensation fixed by the Court Receiver
and all pleas in that behalf are kept open.
(S.C.Dharmadhikari, J)
2 issues framed by the court
Whether the defendant's notice of motion for dismissal on limitation grounds is maintainable at the pre-trial stage.
Whether the date of presentation to the proper court or the original filing date determines limitation for a suit returned to a different court.
Colour shows how this judgement treated each authority
Harshad Chimanlal Modi Vs. DLF Universal Ltd. Anr.Referred¶15
2006(1) S.C.C. 364 (Harshad Chimanlal Modi Vs. DLF Universal Ltd. Anr.) · Who else cites this
1 provisions across 1 enactments
S.C. Dharimadhikari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court