Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 205-20 in S.C.SUIT no.170-16
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 205 OF 2020
(CNR no. MHCC01-000522-2020)
IN
SHORT CAUSE SUIT NO. 170 OF 2016
(CNR no. MHCC01-000071-2016)
Mr. Zaid Zubair Shaikh
Aged 32 years, Occ : Business
Address at Dalal House Room No.03, First Floor,
Santsavta, 3rd Cross Lane, Chandi Bazar,
Byculla (East), Mumbai- 400027.
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Plaintiff
Versus
1. Mr. Zahid Zubair Shaikh
Aged about 30 years, Occ : Business
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2. Miss Iqrazubair Shaikh
Aged about 27 years
Both residing at 3rd Floor, 1, Dalal House,
3rd Santsavta, X Lane, Chandi Bazar,
Byculla (East), Mumbai-400027.
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3. Mrs. Sabah Mujahid Maniyar
Aged about 28 years Occ: House Wife
Residing at Flat No.602, 6th Floor, ‘A’ Wing,
Highland Court Co-Op. Hsg. Society Ltd.,
Bazar Road, Bandra (West), Mumbai-400050.
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4. Mrs. Sajida Zubair Shaikh
Aged about 48 years, both residing at 3rd
Floor, 1, Dalal House, 3rd Santsavta,
X Lane, Chandi Bazar,
Byculla (East), Mumbai-400027.
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Appearances:-
Ld. Advocate Mr. V. K. Gupta for the Plaintiff.
Ld. Advocate Mr. R. D. Thorat for Defendants.
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2 NM no. 205-20 in S.C.SUIT no.170-16
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 2nd March, 2020.
O R A L O R D E R
1. By instant Notice of Motion, the plaintiff has prayed for
punitive action under The Contempt of Court act, 1971 or
punishment to defendant no.1 with jail for willful disobedience of
this Court’s Order dated 23.06.2016 in Notice of Motion No.853 of
2016.
2. Since the foundation of this application Notice of Motion
No.853 of 2016, it is It will be useful to reproduce prayer clause (a)
of Notice of Motion No.853 of 2016 which reads as under :-
(a) Pending the hearing and final disposal of the present suit
this Hon’ble Court be pleased to pass temporary order of
injunction restraining the Defendants, their agents,
servants, representatives and/or any other person or
persons, claiming through or under them from
obstructing and disturbing the plaintiff’s peaceful use,
occupation and possession over the suit premises viz.
Dalal House, 3rd Sant Savta X Lane, Byculla (East),
Mumbai-400 027, admeasuring area about 1200 sq.ft.
Mumbai and/or obstructing the plaintiff and his family
members from entering in to remaining in and using and
occupying the suit premises.
This prayer was granted by the court vide order dated
23.06.2016. In this Notice of Motion it is alleged by the plaintiff
that the defendants are not obeying the said order, they harassed
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3 NM no. 205-20 in S.C.SUIT no.170-16
and created nuisance in the suit premises and due to harassment the
plaintiff had to approach police Station on 06.01.2020. The
defendants have denied these allegations.
3. After careful reading of the plaint, the defendants no.1
to 3 and the plaintiff are brothers and sisters
inter se and defendant
no.4 is mother of the plaintiff. Upon perusal of cause title of the
plaint, it is apparent that the defendants are staying at the first floor
and the plaintiff is residing at ground floor of Dalal House. It is
claimed in the plaint that the plaintiff is co-tenant of the suit
premises with defendants no.1 to 3 but they are denying this right
of the plaintiff. It is material to note that Room No.3 on the first
floor is the suit premises in the plaint and the plaintiff is residing
on ground floor of the said building. This is important because the
words “First floor” were not mentioned in the Notice of Motion
No.853 of 2016. In other words, the entire premises in possession of
both the parties was mentioned without specifying room number,
floor number. If that was the case then the suit premises in that
Notice of Motion was the premises in possession of both the parties
i.e. ground floor and first floor of Dalal House and in the said
backdrop, Notice of Motion was made absolute in terms of prayers
clause (a) and (b). In this Notice of Motion, the plaintiff alleges that
he is not permitted to enter into the area on the first floor of Dalal
House. As discussed herein above, the plaintiff is occupying ground
floor of the building and it is not his case that he was obstructed by
the defendants in using the ground floor premises. Therefore, from
the averments in this Notice of Motion, it is not clear how the order
dated 23.06.2016 was breached.
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4 NM no. 205-20 in S.C.SUIT no.170-16
4. Ld. Advocate for the defendant has cited judgments in
Radha Kishan Vs. Navaratan Mal Jain [AIR1990 Rajasthan 127] and
Rampyaribai Sukhdeo Daga Vs. Niladevi Narayandas Jakhotiya [ALL
MR 2007(5) 95]. In those cases, it is clearly held that the application
for breach of injunction should be tried after framing appropriate
issues and recording oral evidence is also important to ascertain
whether the breach was committed or not. In this matter, the
plaintiff has not adduced any oral evidence in support of his
allegations of breach of injunction order and he has relied only upon
the photographs and affidavits. On this ground also the Notice of
Motion fails.
5. For the reasons given above, I do not find that the
defendants have committed willful disobedience of the order of
injunction dated 23.06.2016. Therefore, the Notice of Motion is
liable to be dismissed. Hence, following order:
ORDER
1. Notice of Motion No. 205 of 2020 is dismissed.
2. Costs in cause.
sd/-
(C. V. Marathe)
Judge,
Date : 02.03.2020. City Civil Court, Gr. Mumbai.
Dictated on : 02.03.2020
Transcribed on : 05.03.2020
Signed by HHJ on : 09.03.2020
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5 NM no. 205-20 in S.C.SUIT no.170-16
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.03.2020 at 11.11 a.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
02/03/2020
JUDGMENT/ORDER signed by
P.O. on
09/03/2020
JUDGMENT/ORDER uploaded
on
11/03/2020
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