1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION CIVIL REVISION APPLICATION NO. 569 OF 2011 IN NOTICE OF MOTION EXHIBIT 3 IN SHORT CAUSE SUIT NO.159 OF 2009 Mr.Nawman Amin Malik ...Petitioner Versus Bhagat Housing Development (Pvt) Limited ...Respondents Mr.H.N.Thakaore i/b. Thakore Jariwala & Associates for the Petitioner Mr.Abhay Khandeparkar i/b. S.S.Khera for the Respondents CORAM:- R.Y.GANOO, J. DATED:- 7th SEPTEMBER, 2011. P.C. 1. Rule. 2. Rule made returnable forthwith. Learned Counsel appearing on behalf of the respondents waives service. By consent, petition is taken up for hearing. 3. The petitioner is defendant in the aforesaid Suit NO.159 of 2009 in 2 City Civil Court at Bombay. The petitioner had taken out the aforesaid Notice of Motion Exhibit 3 praying for preliminary issue as regards jurisdiction under Section 9A of the Code of Civil Procedure, 1908 be framed and be decided on merits. In support of this motion, affidavit of Mr.N.A.Malik, affirmed on 13th February, 2009 before the notary public was sought to be relied upon. Thereafter the learned Judge of the City Civil Court decided the aforesaid motion by order dated 22nd June, 2011 and dismissed the said motion, in a way by observing that the City Civil Court has pecuniary jurisdiction to try and entertain the said suit. Being aggrieved by this order dated 22nd June, 2011 the petitioner has filed this Civil Revision Application. 4. As the Civil Revision Application was taken up, learned Advocate appearing on behalf of the respondents pointed out that affidavit in support of the Notice of Motion dated 13th February, 2009 could not have been read by the court as the same was not properly affirmed in as much as though the affidavit was affirmed before the Notary Public, it was not bearing the serial number of the notary register at which the said affidavit was recorded. Learned Counsel appearing on behalf of the respondents pointed out that this aspect of the well 3 settled position in law was brought to the notice of the learned Judge of the City Civil Court and that the learned Judge of City Civil Court in paragraph 3 of the said Order came to the conclusion that since the matter requires decision on legal points, the formalities of execution of the affidavit before the notary public, though not fulfilled would not be a bar to entertain the notice of motion. 5. Learned Advocate appearing on behalf of the respondent submitted that the objection raised by him goes to the root of the matter and if the learned Judge would have considered the said objection in the proper perspective, he would have no alternative but to hold that the notice of motion is not properly filed and as such it would not have been decided on merits. 6. Learned Advocate appearing on behalf of the petitioners before this Court tried to justify the reasoning given in paragraph 3 of the impugned order. I have perused the sme. I am not inclined to accept the said arguments advanced by the learned Advocate on behalf of the petitioners. 7. I have perused the copy of the affidavit in support of the intimation dated 30th February, 2009 which is appearing at page 87 of the compilation of this petition. The said affidavit nowhere shows that 4 the serial number of the notary and the register is found on the said affidavit. If this is so, the said affidavit is not properly executed and therefore it does not constitute an affidavit in support of the notice of motion and as such procedural requirements for filing the notice of motion are not fulfilled and the learned Judge could not have entertained the said notice of motion. The view taken by the learned Judge appears to be of a practical nature. However, the requirements of affirming the affidavit before the notary public are actually of great importance and ought to be fulfilled in order to se that proceedings are filed in proper manner before the Court. In view of the aforesaid discussion, I hold that the notice of motion itself filed in the present format along with affidavit in support of notice of motion dated 30th February 2009 was not properly filed. Hence the order passed in the said notice of motion will have to be treated as non-est. 8. Even though I have observed that this notice of motion will have to be treated as not properly filed, order dated 22nd June, 2011 will have to be treated as non-est. This view ofcourse would not bar the petitioner from filing a fresh notice of motion only after complying with the procedural and legal formalities. Hence liberty to that extent can be given to the petitioner. Needless to mention that the learned 5 Judge before whom the said notice of motion shall be taken up shall not go by what is stated in order dated 22nd June, 2011. 9. For the reasons mentioned aforesaid, following order is passed to dispose of this Civil Revision Application. ORDER i) It is observed that the notice of motion Exhibit 3 is not properly filed and is not maintainable. Hence order dated 22nd June, 2011 passed in Notice of Motion Exhibit 3 is set aside. ii) Liberty is given to the petitioner to file a fresh notice of motion for the relief similar to the one asked in notice of motion Exhibit 3. If at all the petitioner is interested in taking out such notice of motion he can take it out on or before 3rd October, 2011. iii) If such notice of motion is taken out, the learned Judge before whom the notice of motin will appear shall hear and dispose of the same within six weeks from the first returnable date of the notice of motion. The learned Judge of the City Civil Court shall not look to order dated 22nd June, 2011 for the purpose of deciding the new 6 motion which may be filed by the petitioner. iv) This Court has also not expressed any view on the merits raised by the petitioner in this petition. v) In view of the above, Civil Application No.463 of 2011 is disposed of with no order as to costs. (R.Y.GANOO, J.)