Final Order 1

Order Details: Notice of Motion
Pdf Text: Contempt NM No.605/2019 ..1.. S.C. Suit No.3486/1997
CNR No. MHCC01-001550-2019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CONTEMPT NOTICE OF MOTION NO. 605 OF 2019
IN
S. C. SUIT NO.3486 OF 1997
Saifee Nazimuddin Khambhati. .. Plaintiff
Versus
Mulla Shoebbhai Saifuddin Baldiwalla
(Since deceased) and others. .. Defendants.
AND
Bharmal Co-operative Housing Society Ltd.,
having office at 5/546, Sitafal Wadi,
Mazgaon, Mumbai. ..Respondent.
Advocates
Parmar for the plaintiff.
Narvekar for defendant no.7.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 29th February, 2020
ORAL ORDER
Present notice of motion is taken out on behalf of the plaintiff
against defendant no.1, 7 and respondent, Bharmal Co-operative
Society Ltd., (society) for breach of injunction order dated 04.03.1996.
2. Advocate for defendant no.7 filed reply and opposed notice of
motion. Perused notice of motion, affidavit in support of it, reply to
notice of motion and proceedings of the case.
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Contempt NM No.605/2019 ..2.. S.C. Suit No.3486/1997
3. Advocate for the plaintiff submitted that original plaintiff is
expired and his daughter is brought on record. Plaintiff filed the suit for
declaration that he is allottee of flat no.1 (now renumbered as flat
no.71(A) in building of respondent society. Originally suit was filed
against defendant no.1 to 5 as builders and promotors. Defendant no.6/
respondent is a society. Suit is dismissed against defendant no.6 on
22.08.2000. Plaint was amended on 02.09.1996 and name of defendant
no.1 to 5 are deleted. Defendant no.8 is expired and his legal heirs are
brought on record.
4. Plaintiff had taken out notice of motion no.1169/1996 and vide
order dated 06.03.1996, defendant no.1 to 6 were restrained from
selling, transferring, alienating or putting any party in possession of suit
flat. According to the plaintiff, defendant no.7 found in occupation of
suit flat since 2007. Building was completed and defendant no.1
breached injunction order dated 06.03.1996 by putting defendant no.7
in possession of suit flat. Hence prayed for making absolute notice of
motion in terms of prayer clause (a) by sending defendant no.1 and 7 to
civil prison.
5. Advocate for defendant no.7 submitted that when injunction
order was passed against defendant no.1 to 6, at that time defendant
no.7 was neither party to the suit nor party to notice of motion
no.1169/1996. Defendant no.7 is added as party on 07.08.1996. Hence
notice of motion is not tenable against defendant no.7. Plaintiff by
amending plaint, claimed relief against defendant no.7. Thus he prayed
for dismissal of notice of motion.
6. From the perusal of proceedings of the case, it appears that
plaintiff had filed notice of motion No.1169/1996 for injunction against
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Contempt NM No.605/2019 ..3.. S.C. Suit No.3486/1997
defendant no.1 to 6. At that time suit was bearing stamp no.697/1996
and not registered. Present respondent was defendant no.6 in the suit.
Injunction order was passed in above notice of motion on 06.03.1996
restraining them from alienating or giving possession of suit flat to
Ismail Mohd. i.e., defendant no.7. At that time, defendant no.7 was
neither party to the suit nor to notice of motion. Defendant no.7 was
added as party to the suit on 07.08.1996. This fact is not in dispute.
Then defendant no.7 appeared before the Court. Defendant no.1 to 7
raised objection as to the jurisdiction of the Court and preliminary issue
was framed. As per order dated 22.08.2000, suit is dismissed against
defendant no.6 Society/Respondent in this motion for want of
jurisdiction. Plaintiff did not prefer appeal against order dated
22.08.2000.
7. Though plaintiff claims that defendant no.7 found in possession
of suit flat since the year 2007 but plaintiff failed to plead on which
date, defendant no.1 put defendant no.7 in possession of suit flat. So
also present notice of motion is filed after more than 12 years even after
plaintiff got knowledge of possession of defendant no.7 in suit flat in
the year 2007. Pleadings regarding breach of injunction order by
defendant no.1 and 7 is vague and general. Admittedly defendant no.7
was not party to the suit or notice of motion when injunction order
dated 06.03.1996 was passed against defendant no.1 to 6. Name of
defendant no.1 to 5 are deleted. Suit is dismissed against defendant
no.6 on 22.08.2000 for want of jurisdiction. Basically suit is for
possession of suit flat which is in possession of defendant no.7 and
plaintiff already claimed released against defendant no.7 by way of
amendment in the plaint. As defendant no.1 is expired and his name is
deleted and suit is dismissed against defendant no.6/respondent, there
is no question of taking action against them. Plaintiff failed to make out
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Contempt NM No.605/2019 ..4.. S.C. Suit No.3486/1997
any case against defendant no.7 for breach of injunction order dated
06.03.1996. Under the facts and circumstances, present contempt
notice of motion is liable to be dismissed. In the result, following order.
ORDER
Contempt Notice of Motion No.605 of 2019 is dismissed and
accordingly disposed of.
(Sunil T. Soor)
Judge
Date : 29.02.2020 Gr. Mumbai.
Typed on : 29.02.2020
HHJ signed on : 29.02.2020
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Contempt NM No.605/2019 ..5.. S.C. Suit No.3486/1997
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.02.2020, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
29.02.2020
JUDGMENT/ORDER signed by P.O.
on
29.02.2020
JUDGMENT/ORDER uploaded on 29.02.2020
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