Interim Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 4273/19 in Suit No. 2447/19. 1 Order.
MHCC010116562019
Presented on : 16-11-2019
Registered on : 16-11-2019
Decided on : 27-06-2023
Duration : 3 years, 7 months, 11 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4273 OF 2019
IN
SUIT NO. 2447 OF 2019
Parween Mohammed Wasif and another )...Applicants
(Org.Def.no.1 & 2)
In the matter of
Mrs. Sadaf Ashfak Jumani )...Plaintiff
Versus
Parween Mohammed Wasif and others )...Defendants
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 27th JUNE, 2023.
Shri Nirav Doshi with Shri Aseem Naphade with Devanshi Bafna,
Advocate for the defendant nos.1 and 2.
Shri Mukesh Dubey, Advocate for the plaintiff.
ORDER
1. The defendant has taken out the present notice of motion
and prayed for rejection of plaint under Order VII Rule 11 of the CPC
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N/m No. 4273/19 in Suit No. 2447/19. 2 Order.
r/w Section 3 of the City Civil Court Act, 1948. The contention of the
defendant that this Court have no pecuniary jurisdiction to entertain or
try the above suit.
2. It is alleged by the defendant that the plaintiff has asked
declaratory relief in respect of the suit property but the valuation of the
suit property is beyond the pecuniary jurisdiction of this Court. It is
alleged by the defendant that this Court have no jurisdiction to try and
decide the suit as the suit property is commercial as well as residential
structure and it's value more than Rs.3,00,00,000/. Hence, prayed for
rejection of the plaint. It is further alleged by the defendant that the
valuation of the suit property as per Government Ready Recknor is also
more than Rs.3,50,00,000/. Thus, this Court has no pecuniary
jurisdiction to try and entertain the suit. Hence, prayed for dismissal of
the suit.
3. The plaintiff opposed the application by filing reply
alongwith the affidavit in support thereof. It is alleged by the plaintiff
that the application is not maintainable. The plaintiff has filed the suit
for declaration. She also prayed for leave under Order II Rule 2 of the
CPC. Therefore, there is no question of calculating the market value of
the property. Therefore, prayed for rejection of application.
4. Perused application, say filed by the plaintiff. Heard both
advocates at length, therefore the following points arose for my
determination alongwith my findings thereon for the reasons
enumerated below :
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N/m No. 4273/19 in Suit No. 2447/19. 3 Order.
SR.NO. POINTS FINDINGS
1. Whether this Court have pecuniary
jurisdiction to try and decide the suit ?
In the Affirmative.
2. What order ? As per final order.
REASONS
6. I have gone through the copy of plaint, documents filed on
record, especially the property extract and other documents. Most
importantly I have gone through the plaint. On going through the
contents of the pleading, it reveals that the plaintiff and defendant are
close relatives. Plaintiff claiming right, title, interest in the subject
matter of the suit. His contention is that the defendants are avoiding to
give her share in the suit property. It is a matter of record that in para
no.13 of the plaint, plaintiff seeks leave under Order II Rule 2 of CPC. I
have gone through the prayer clause of the plaint. It shows that therein
also plaintiff seeks leave under Order II Rule 2 of the CPC. The
contention of the plaintiff is that she is having right, title, interest in the
suit property, defendant be restrained from alienating or creating any
third party interest over the suit premises, as one of the suit property is
shop, therefore the defendant be directed to give accounts of the profit
earned from the suit property. So, in my opinion, the plaintiff can claim
declaration and injunction against the defendant. For that the valuation
of the property according to the ready recknor is not necessary to be
calculated. As the suit is for declaration and injunction, therefore this
Court have pecuniary jurisdiction to try and entertain the suit. Hence, I
answer point no.1 in affirmative and pass following order :
ORDER
1. Notice of Motion No. 4273/2019 stands rejected.
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N/m No. 4273/19 in Suit No. 2447/19. 4 Order.
2. N/m No. 4273/2019 is disposed off.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 27/06/2023. Mumbai.
1. Dictated on : 27/06/2023.
2. Transcribed on : 30/06/2023.
3. Checked on : 10/07/2023.
4. Signed on : 12/07/2023.
5. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12/07/2023. 5.58 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 27/06/2023.
Judgment/Order signed by P.O. on 12/07/2023.
Judgment/Order uploaded on 12/07/2023.
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