Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 795-18 in Suit No. 1102-18
CNR NO.MHCC0100283418
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 795 OF 2018
IN
L.C. SUIT NO. 1102 OF 2018
Shaikh Abdul Malik Abdul Rub & Ors. …...Plaintiffs
Versus
Shaikh Kifayatullah Karamatullah & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 27th November, 2019.
Appearance:
Ld. Adv. Ghaswala for plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
Ld. Adv. Mr. Gatte for defendant No. 1.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from assigning, disposing,
creating third party interest in respect of properties and shares of the
plaintiff in respect of the suit property.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The plaintiffs are the brothers and the sisters of deceased
Fehmida Kifayatullah Shaikh who died on 27.12.2017. The plaintiffs
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2 NM 795-18 in Suit No. 1102-18
claim to the legal heirs and equally entitled for share with defendant
No. 1 as per Muslim Hanafi Law. Admittedly, the suit is for partitions.
It needs to be mentioned that the plaintiffs had prayed for perpetual
injunction in the suit and had not sought declaration of their right in
the suit property.
The main relief which ought to have been sought was declaration
of right in the suit property and the ancillary relief ought to have been
for perpetual injunction. Assuming for a while, if the suit is decreed,
now, what the plaintiff would get its a perpetual injunction restraining
the defendant from dispossessing or creating third party interest in the
suit property. The injunction cannot be continued in perpetually
without declaration of right title interest.
In the light of relief claimed by the plaintiff, the notice of motion
cannot be entertained.
The plaintiff has failed to make out the primafacie case in his
favour. The balance of convenience does not lies in favour of the
plaintiff. The plaintiff would not be put to irreparable loss, if the
temporary injunction is refused. In the result, following order is passed.
ORDER
The Notice of Motion No. 975/2018 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 27.11.2019 City Civil Court, Mumbai.
Dictated on : 27.11.2019
Transcribed on : 27.11.2019
Signed by HHJ on : 29.11.2019
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3 NM 795-18 in Suit No. 1102-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.11.2019 at 5.30 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
27.11.2019
JUDGMENT/ORDER signed by
P.O. on
29.11.2019
JUDGMENT/ORDER uploaded
on
29.11.2019
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