D. K. Deshmukh, J. - (1.) In this Notice of Motion, in view of the provisions of section 9a of the Civil Procedure Code following two issues were framed as preliminary issues :- (i) Does the defendant No. 8 prove that the suit as framed and filed is barred by the law of limitation (ii) Does the defendant No. 8 prove that the suit as framed and filed, in the absence of notice to the Corporation in terms of provisions of section 527 of the Bombay Municipal Corporation Act, is not maintainable
(2.) At the hearing the defendant No. 8 did not press issue No. 2 and therefore, issue No. 2 is answered accordingly.
(3.) The contest between the parties was only on issue No. 1. The facts that are necessary and material for deciding issue No. 1 are that the plaintiff which is a Co-operative Housing Society claims that the entire land which is the subject matter of the suit was assigned to the plaintiff/society by registered Deed of assignment dated 25th March, 1969 by the original lessee of the land. The plaintiff/society is the owner of the building "advent" standing on part of the land. On other part of the land, partly constructed building "divya Prabha" stands. The dispute in a suit relates to this incomplete building "divya Prabha". The construction of that building was commenced by the first defendant, who is the builder and developer, in the year 1966. The construction of the building remained incomplete. In October, 1994 the plaintiff filed B. C. C. Suit No. 6734 of 1994 in the City Civil Court. According to the plaintiff, the suit was filed in the city Civil Court on the basis of apprehension that the defendant No. 7/municipal corporation was considering the proposal for permitting completion of the construction of the structure "divya Prabha". According to the plaintiff, the plaintiff came to know only after filing civil suit in the City Civil Court that the defendants Nos. 1 to 6 have entered into a contract with defendant No. 8 for transfer of right, title and interest of defendants Nos. 1 to 6 in favour of defendant no. 8. During the pendency of the civil suit in the City Civil Court on 28-6-1996, the Municipal Corporation revalidated the building permission for a period of one year. The building permission was again revalidated by letter dated 18th october, 1998 again for a period of one year. Thus, the suit in the City Civil court was filed by the plaintiff mainly for a declaration that the defendants were not entitled to avail of additional FSI and for a declaration that the revalidation of the building permission granted by the Corporation is not valid. In that suit a preliminary issue was framed as to the jurisdiction of that Court to entertain the suit. By order dated 15/16th April, 1999 City Civil Court held that it did not have pecuniary jurisdiction to entertain the suit and returned the plaint to the plaintiff for presentation to the proper Court. The plaintiff challenged that order by filing a. O. No. 400 of 1999 in this Court, but that A. O. was withdrawn by the plaintiff on 5th May, 1999 and the present suit was filed on 18th May, 1999. In this suit, the present Notice of Motion has been taken out by the plaintiff claiming certain interim reliefs.;