1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.605 of 2010 IN Suit No.3091 of 2008 Mrs.Nalini Vinod Mehta & ors. .. .. Plaintiffs v/s. Shaileja Bistesh Sagar & ors. .. .. Defendants Mr.N.V. Walawalkar, Sr.Advocate with Mr.S.M. Shettigar for Plffs. Mr.S.U. Kamdar, Sr.Advocate with Mr.J. Reis, Mr.M.S. Doctor and Mr.Satyam Vora i/by Markand Gandhi & Co. for Deft.Nos.7 to 25. Mr.P.K. Dhakephalkar, Sr.Advocate with Mr.Karwande for Deft.Nos.1 to 4. ---- CORAM : SMT.ROSHAN DALVI, J. DATED : 23rd June, 2010 P.C. : 1.In view of the withdrawal of Notice of Motion No.3850 of 2008 and Notice of Motion No.1364 of 2010, it is contended on behalf of the Plaintiffs that since the application for interim relief is no longer pending, it having been withdrawn today, this Notice of Motion would not survive. 2 2.It is contended on behalf of the Defendants that this Notice of Motion would survive since it was taken out pending the interim application which was taken out by the Plaintiffs. The Defendants have also taken out another Notice of Motion being Notice of Motion No.2821 of 2009 for rejection of the Plaint under Order VII Rule 1(d) of the Code of Civil Procedure (CPC), the suit having been barred by the law of limitation. 3.The essence of the dispute between the parties is that the suit is barred by the law of limitation. If the suit is barred, the other issues need not be decided and the Plaint would have to be rejected. There are two distinct reliefs in the CPC, one in the suit when upon a reading of the Plaint, it can be rejected under Order VII Rule 11 of the CPC. The other being a specific provision made by way of an amendment to the CPC in the State of Maharashtra under Section 9A for having the issue relating to the jurisdiction of the Court being decided pending the interim application itself so that if the suit cannot proceed to hearing, the interim application may not be heard and decided on merits. Consequent upon a judgment of the Division Bench of this Court in the case of Foreshore Co- operative Housing Society Ltd. vs. Praveen D. Desai & ors., 2009(1) Bombay C.R. 757 a preliminary issue also 3 is required to be tried as a jurisdictional issue and that would be pending the interim application, if so taken out. When the interim application is withdrawn only the pleadings between the parties remain. The suit would, therefore, have to be heard. 4.Consequently, Order VII Rule 11 of the CPC would be the first step in the suit to consider inter alia the bar of limitation before the suit proceeds to hearing and which can be considered even before the Written Statement of the Defendants on merits of all the issues is filed. That application is already filed and is pending. 5.In view of the above, there shall be no order in this Notice of Motion for considering the limitation issue as a jurisdictional issue under Section 9A of the CPC. 6.The Notice of Motion of the Defendants under Order VII Rule 11 of the CPC shall be heard on 5.7.2010. (SMT.ROSHAN DALVI, J.)