Final Order 1

Order Details: Notice of Motion
Pdf Text: Noting dt. 25.01.2023 C.R. No.03
25.01.2023
Sr. No. 52
SU 1278/20
NM 2784/21
NM 212/21
NM 1583/20
Exh.07
Exh.07A
CORAM : H.H.J. SHRI SHAIKH AKBAR SHAIKH JAFAR (CR. 03)
Adv. Narayan Sahu a/w Adv. Shraddha Khandhdia for plaintiff
present.
Defendant Nos. 1 and 2 in person present.
Heard the advocate of plaintiff and defendants in person.
K.B.
Heard the advocate of plaintiff and defendant Nos.1 and 2 in person
on the point of passing decree as per the provisions of Order 12 Rule
6 of CPC.
During the course of argument, the advocate of plaintiff is insisting
for passing order on this motion alongwith judgment of this suit.
The plaintiff has filed NM No.212/2021 claiming that the
defendants have committed breach of injunction order and prayed
that they should be dealt with as per the provisions of Order 39 Rule
2A of CPC. However, I am of the view that the proceeding under
Order 39 Rule 2A of CPC is a separate proceeding required to be
tried separately by framing appropriate points. It is an independent
proceeding of criminal nature. The principle of deciding the suit is
based on pleadings of the parties and decision on the issues arose
out of the pleadings which is totally different proceeding from the
application under Order 39 Rule 2A of CPC. Therefore, it should not
be decided alongwith the suit.
I am fortified by the judgment of the Hon'ble Bombay High Court
in the case of Rampyaribai Wd/O Sukhdeo Daga V/s Niladevi
Wd/O Narayandas reported in 2007 (4) Mh.LJ 213 where the
Hon'ble High Court has directed that the proceeding under Order 39
Rule 2A of CPC has to be registered as separate proceeding as
miscellaneous judicial case. Thus, as per the provision of Para
No.337 of Civil Manual, the motion is required to be registered as
miscellaneous proceeding.
The proceeding of the motion, under Rule 187 of Bombay City Civil
and Sessions Court Rules, are mainly provided for seeking interim
injunction in the pending suit which is totally different from the
proceeding initiated under Order 39 Rule 2A of CPC. Therefore, this
motion deserves to be disposed off as not maintainable, however,
plaintiff is at liberty to initiate appropriate proceeding. Hence, NM
No.212/2021 stands disposed off accordingly.
Judgment. Exh.07.
Operative part. Exh.07A.
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Noting dt. 25.01.2023 C.R. No.03
O P E R A T I V E P A R T O F T H E J U D G M E N T
1. S. C. Suit No.1278/2020, is hereby partly decreed.
2. It is declared that the plaintiff is entitled for 1/3rd
share in the suit property.
3. The defendants do deliver 1/3rd share of the
plaintiff in the suit property.
4. The defendants are hereby permanently restrained
from creating third party interest in the suit
property to the extent of 1/3rd share of the
plaintiff.
5. The plaintiff is directed to initiate final decree
proceeding as required by law, forthwith.
6. The Notice of Motion No.2784/2021 and
1583/2020 are hereby disposed off in terms of
final order.
7. Preliminary decree to be drawn up accordingly.
Judge
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