rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4507 OF 2006 NOTICE OF MOTION NO. 4507 OF 2006 NOTICE OF MOTION NO. 4507 OF 2006 IN IN IN SUIT NO. 1861 OF 2002 SUIT NO. 1861 OF 2002 SUIT NO. 1861 OF 2002 Rashi Shivaji Chheda & Ors. ..Plaintiffs V/s. Dhirajlal Raishi Chheda & Ors. ..Defendants Mr. J.G.Shukla for Plaintiffs. Mr. A.V.Anturkar a/w.Mr.P.A.Sarvankar i/b.G.S.Bhat for Defendant Nos. 1 and 2 and in support of Notice of Motion 4507 of 06. CORAM: S.J. VAZIFDAR J. CORAM: S.J. VAZIFDAR J. CORAM: S.J. VAZIFDAR J. DATE : 26TH FEBRUARY,2008. DATE : 26TH FEBRUARY,2008. DATE : 26TH FEBRUARY,2008. P.C. : P.C. : P.C. : . The Notice of Motion is taken out by Defendant Nos. 1 and 2 for striking out the pliant under Order VI, Rule 16, Section 151 of the Code of Civil Procedure and under Article 215 of the Constitution of India. Defendant Nos. 1 and 2 also sought an order rejecting the plaint as being barred by limitation and for dismissing the suit as being not maintainable. Lastly, Defendant Nos. 1 and 2 has sought an order recalling certain earlier orders passed by this Court and by the Division Bench. : 2 : 2. It was contended that the suit is not maintainable in so far as it pertains to prayers (i) and (j). 3. In prayer (i), an order is sought directing the first Defendant to vacate and hand over possession of certain premises. In prayer (j), the Plaintiff has sought an order against the first Defendant for mesne profits in respect of the said premises. 4. It was contended that originally in paragraph 4 of the plaint, it was stated that the first Defendant and his wife and children were allowed by the first Plaintiff to use the said premises. By an amendment, paragraph 7.5.1 was introduced. Mr.Anturkar submitted that in view of paragraph 7.5.1, it is clear that a licensor and licensee relationship and/or landlord and tenant relationship is admitted. 5. The submission is not well founded. What is pleaded in paragraph 7.5.1 is that the first Defendant had relied upon two M.O.Us of lease both : 3 : dated 25th June, 1993. It is averred that the same had been signed on an understanding based on the writings dated 1st January, 1992 and 4th February, 1992 where first Defendant agreed to make certain payments within the time stipulated. It is also averred that the terms was incorporated in a family settlement signed by the Plaintiff on 1st June, 1993. It is important to note, however, that the Plaintiff’s case is that the documents relied upon by the first Defendants are fabricated and that the genuine documents in this regard have been suppressed. It is also contended that these documents have been got signed by the first Defendant on a misrepresentation and fraudulently. 7. These averments are hardly an admission of any landlord and tenant or licensor and licensee relationship. They are in fact contrary thereto. Whether the averments are true or whether they will be established or not is another matter. The suit cannot be dismissed at this stage on the ground that it is not maintainable in view of the above submission. 8. The next contention is that the suit is barred by limitation. It is true that the documents : 4 : challenged in this suit are dated more than three years prior to the date of the filing of the suit. It is also true that in the paragraph pertaining to limitation namely paragraph 23 of the plaint, there is no explanation as to how the bar of limitation is saved. 9. However, the plaint ought to be read as a whole. It would, no doubt have been better if the pleading had been cleat upon this aspect in paragraph 23 itself. The plaint read out as a whole, however does not warrant in a dismissal of the suit on the ground of limitation at this stage. In paragraph 7 of the plaint, the documents have been set out. It is stated that the first Defendant was in a position to dominate the will of the Plaintiff’s; that the first Defendant dishonestly abused his position and had the said documents executed; that the same has done fraudulently and through false representation; and that in the course of correspondent prior to this suit and in Suit No. 1452 of 2002 and 2420 of 2002 filed by the first Defendant against the third Plaintiff in the Bombay City Civil Court and that the said documents in possession of the first Defendants, had been produced. : 5 : 10. In that event this suit which was filed on 15th May, 2007 may not be barred by limitation. It is a point which must be decided at the stage of final hearing 11. The document was also challenged in the suit itself when it was filed in the year 2002. By an amendment granted in Chamber Summons No. 896 of 2006, further grounds were pleaded. It is true that in the order dated 14th September, 2006 allowing the Chamber Summons the learned Judge stated that the amendment would be on the date of the amendment and will not revert back to the date of filing of the suit. 12 Mr.Anturkar firstly submitted that the limitation therefore ought to be considered from the date on which the amendments were actually and physically carried out namely on 25th September, 2006. I do not agree, the order obviously refers to the date on which the Chamber Summons was filed for amendment viz. 19th July, 2006. A Chamber Summons may take years to be decided. Surely a litigant : 6 : cannot be penalised for the same. This was definitely not the purport of the order either. As the documents were challenged in the plaint as originally filed, the suit cannot be dismissed on the ground of limitation. The effect of the amendments would be one of the facts to be taken into consideration at the hearing of the suit. 13. Mr.Anturkar then submitted that the Plaintiff’s had taken different stands from the date on which the suit was filed. Considering the facts of this case and the pleadings, I am not inclined to dismiss the suit on the ground of being it an abuse of process. The dealings between the parties are considerably involved. Even assuming that there is any inconsistency, it is not possible to state at this stage, at least that the first Plaintiff who is the father of the first Defendant, abused the process of this Court entailing a dismissal of the suit at this stage. 14. In the circumstances, the Notice of Motion is dismissed. *******