Important Point—No amount of clever drafting can be allowed to disguise the real cause of action in the suit.

1. Originally, there were two defendants to this suit. The original 1st Defendant, Navnitlal Ratanji Shah, died. The Plaintiff amended his plaint, and deleted Navnitlal as a defendant. The original 2nd Defendant is now the sole defendant to the suit. This Notice of Motion is by the 2nd Defendant. She has not yet amended the title to her Notice of Motion. She will do so, deleting the name of the original 1st Defendant, before 10th February 2017. The registry will not insist on re-verification. The full title to this order show the correct title in the suit with the name of the original 1st Defendant deleted.

2. On 24th November 2014, R.D. Dhanuka J. framed a preliminary issue under Section 9A of the Code of Civil Procedure 1908 (“CPC”). The issue was of limitation and it was raised specifically in paragraphs 13 to 16 of the Defendant’s Affidavit in Support of their Notice of Motion No. 1469 of 2014. Dhanuka J framed the following issues:

“(1) Whether any part of the relief is barred by limitation?

(2) What orders?”

3. The Plaintiff desired to lead evidence. The Court issued directions for filing his Affidavit of Evidence, Affidavit of Documents, statements of admission and denial, and other pre-trial formalities on the preliminary issue. The Plaintiff filed two Affidavit in lieu of Examination-in-Chief The first is dated 21st April 2015. The second, additional, Affidavit in lieu of Examination-in-Chief is dated 4th September 2015. The Plaintiff also put in evidence seven documents separately compiled as Exhibits “P1” to “P7”. The Plaintiff was cross-examined on commission on 3rd March 2016, after which he closed his case.

4. The Plaintiff led no other witness. This was not for want of trying: he filed Chamber Summons (L) No. 46 of 2017 for leave to lead further evidence and to introduce further documents, despite his counsel having closed his case before the Commissioner. I dismissed the Chamber Summons on 13th January 2017, not only because he had closed his case but also on merits. I held the Plaintiff could not compel production by the Defendant of unspecified documents to shore up his case. I am told today the Plaintiff has appealed the order of 13th January 2017. Mr. Sancheti sought an adjournment for that reason. He said, in fairness, the Appeal Court has not yet admitted his appeal, nor stayed further hearings on the preliminary issue. I declined the request. Mr. Sancheti’s adjournment request was unnecessary for, having heard him and Mr. Shah for the Defendants, and for the reasons that follow, I have found the existing material sufficient to hold for the Plaintiff on the preliminary issue.

5. What is the case with which the Plaintiff has come to Court? What is it that he seeks in the Suit? The issue of limitation cannot be decided only on legal submissions. It is a mixed question of fact and law. The evidence led lends context and texture to the pleadings. We learn of the parties’ transactions, their relationships, and how they conducted themselves over time.

6. Consider first the parties to the suit. The suit was originally brought against two Defendants. For convenience, I refer to the parties by their names from this point onward. The original 1st Defendant, Navnitlal Ratanji Shah (“Navnitlal”), since deceased, was the father of the Plaintiff, Chetan Navnitlal Shah (“Chetan”). The original 2nd Defendant, Fizza Navnitlal Shah (“Fizza”) is Navnitlal’s second wife, Chetan’s stepmother. Navnitlal died on 13th June 2015. He was then deleted as a defendant; the plaint was amended. The contest is now between Chetan and Fizza. But this array of parties tells us only part of the story. The narrative in the Plaint is about the relations and transactions between Chetan and Navnitlal during the latter’s lifetime, and the discord between Chetan and Fizza when she entered Navnitlal’s life. Today, I am not asked to assess t