Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 110-19 in Suit No. 3260-18
CNR NO.MHCC01 00027619
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 110 OF 2019
IN
L.C. SUIT NO. 3260 OF 2018
Shamim w/o Mohammedali Merchant ....Plaintiff
V/s.
The Municipal Corporation of Greater Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 23rd August, 2019
Appearance:
Ld. Adv. Mr. Parmar for the plaintiff.
Ld. Adv. Meena Dhuri for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks injunction restraining
the defendant corporation from acting upon the notice dated
06.12.2018.
2. Heard Learned Advocate for the plaintiff, Learned Advocate for
the defendant corporation.
3. It is the case of the plaintiff that she is the owner of the suit
premises and had entered into the agreement of leave and licenses in
respect of suit premises with the licensee.
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4. The plaintiff was issued notice under Section 394 of the MMC Act
by the defendant corporation, on the allegation that the plaintiff was
carrying out trade of lodging without health license under Section 394
of the MMC Act.
The Learned Advocate for the plaintiff argued that the plaintiff is
not using the premises as the lodge. He had contended that he had
filed on record the agreements in which the notice had challenged, it
points out the initiation of the prosecution. The plaintiff by way of this
notice of motion is seeking to stop the prosecution.
Section 41 of the Specific Relief Act bar reads as under:
An injunction cannot be granted
a) to restrain any person from prosecuting a judicial proceeding
pending at the institution of the suit in which the injunction is sought,
unless such restraint is necessary to prevent a multiplicity of
proceedings;
b) to restrain any person from instituting or prosecuting any
proceeding in a Court not subordinate to that from which the injunction
is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any
proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would
not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not
reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has
acquiesced;
(h) when equally efficacious relief can certainly be obtained by any
other usual mode proceeding except in case of breach of trust;
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(i) when the conduct of the plaintiff or his agents has been such as to
disentitle him to the assistance of the Court;
(j) when the plaintiff has no personal interest in the matter.
The plaintiff cannot claim injunction as sought by the present
suit. Therefore, the plaintiff is not entitled for temporary injunction as
prayed for. The notice of motion, therefore, cannot be entertained and
deserves to be dismissed.
In the result, following order is passed.
ORDER
The Notice of Motion No. 110/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 23.08.2019 City Civil Court, Mumbai.
Dictated on : 23.08.2019
Transcribed on : 26.08.2019
Signed by HHJ on : 28.08.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 28.08.2019 at 5.10 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
23.08.2019
JUDGMENT/ORDER signed by
P.O. on
28.08.2019
JUDGMENT/ORDER uploaded
on
28.08.2019
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