Almas Banoo Kadri vs Fahim Abdul Rehman Dalvi
2024 Latest Caselaw 24834 Bom

Bombay High Court

Almas Banoo Kadri vs Fahim Abdul Rehman Dalvi on 27 August, 2024

                                                       53-sast-21483-2024-ia-11619-2024.doc




varsha              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                          SECOND APPEAL(ST) NO. 21483 OF 2024
                                             WITH
                          INTERIM APPLICATION NO. 11619 OF 2024
                                               IN
                          SECOND APPEAL(ST) NO. 21483 OF 2024


          Almas Banoo Kadri                           ... Appellant/Applicant
                         vs.
          Fahim Abdul Rehman Dalvi                    ... Respondent
          Mr. A.H. Khatri, for Appellant.
          Mr. Sandeep Mishra, for Respondent.


                                            CORAM : GAURI GODSE, J.
                                            DATED : 27th AUGUST 2024


          ORDER:

1. Heard the learned counsels for the parties. The Second

Appeal raises the following substantial questions of law:

I) Whether the plaint could have been rejected on the

ground that the suit was barred by limitation though there was

a specific cause of action pleaded in paragraph no. 26 of the

plaint which indicates that according to the plaintiff the cause

of action arose on 24th July 2022?

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II) Whether in view of the pleadings in the plaint the point

of limitation would amount to a mixed question of law and fact

which could have been decided on the application filed for

rejection of plaint under Order VII, Rule 11 of the Civil

Procedure Code, 1908?

III) Whether the reasons recorded in the impugned

judgment would amount to misappreciation of the facts and

the relevant applicable law regarding the issue of limitation?

2. Issue notice for final disposal at admission stage on the

above questions of law. Notice is made returnable on 18th November

2024.

3. Mr. Mishra, waives notice on behalf of the sole Respondent.

4. The learned advocate for the appellant shall file private paper-

book within a period of four weeks from today.

5. Learned counsel for the respondent opposes continuation of

ad-interim protection. He submits that there is already an order of

eviction against the appellant passed by the Competent Authority

under the Maharashtra Rent Control Act, 1999. He therefore

submits that as a condition for granting protection to the appellant's

possession, the appellant be put to terms directing her to make

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payment towards some amount.

6. Learned counsel for the appellant submits that as per the suit,

the agreement of total consideration for the transaction was

Rs. 20,00,000/- out of which the appellant has paid Rs. 15,00,000/-.

He submits that he will take necessary instructions regarding

securing the balance amount of Rs. 5,00,000/-.

7. Learned counsel for the respondent disputes that the

appellant has paid an amount of Rs. 15,00,000/-. Learned counsel

for the appellant seeks time to take instructions regarding securing

the amount of balance consideration.

8. The respondent is at liberty to file an affidavit-in-reply

opposing grant of any interim relief. Though the appeal is directed to

be listed for final disposal at the admission stage on 18th November

2024, the grant of interim protection will be heard on 25 th September

2024. Hence, list the application for extension of interim relief on

25th September 2024.

9. Till next date, ad-interim protection already granted to

continue.

(GAURI GODSE, J.)

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