1 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 2 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 3 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 4 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 5 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 6 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)