Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3841-19
MHCC010104582019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.3841 OF 2019
IN
SUIT NO. 7420 OF 1980
1(a) Amrish J. Agarwal and Ors. … Plaintiff
V/s
1. K.K. Jain and Ors. … Defendants
Appearances :
Adv. M.K. Tanna a/w Adv. Rahul Vyas for plaintiff.
Adv.Vinayak D. h/f Adv. Rahul Singh for defendant Nos.8 and 9.
Adv. Faiz Ali Khan for defendant No.13.
Adv. Swati Panjwani i/b Adv. Harshad Bhadbhade for defendant
Nos.29(a) to 29(c).
Adv. Hima Chavan h/f Adv. Makrand Raut for defendant No.14(b).
CORAM : D. R. DESHPANDE
JUDGE,
(C.R.NO.02)
DATE : 1st August, 2026
ORDER
1. This Notice of Motion has been taken out by the plaintiff
for interim injunction restraining defendants No.13 to 17 and 32(a) to
32(f) and respondent No.1 from creating third party interest or parting
with possession of the suit property, for appointment of receiver in
respect of the constructed portion on the suit property for taking
possession and for direction of accounts of earnings and for
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compensation earned by them.
2. Grounds of motion : In Notice of Motion No.385 of 1980 by
order dated 26.11.1982, the Hon’ble High Court has granted relief in
terms of prayer clause (b) of the Motion restraining then defendants
from creating third party interest or disposing of the suit property or
from creating any tenancy in respect thereof. Lateron, Release Deed
dated 19.01.2012 was executed by predecessor of defendants No.13 to
17. The plaintiff came to know that Leave and License dated
22.06.2016 was executed by defendant No.14 and his wife as licensor in
favour of Heritage Hospitality Services for 60 months for commercial
purposes commencing from 01.06.2016 to 31.07.2021. Thus,
defendants No.11 to 17 as well as defendants No.32(a) to 32(f) have
deliberately committed breach of the order dated 26.11.1982, regarding
which, appropriate motions have been taken against them. Considering
this conduct of defendant in creating license in favour of stranger and
inducting third parties in possession, the reliefs in the motion are
essential to be granted.
3. Grounds in resistance : The defendants No.14(b), 13 and
16 have resisted motion on the ground that there is no brach of order of
injunction of the court. The original suit does not consist of any prayer
for recovery of possession of the suit property or any part thereof or any
fixture thereupon, so that the suit is under the presupposition that
plaintiff is in possession of the suit property inducted by the vendors
defendants No.1 and 2, against whom, plaintiff is claiming Specific
Purpose of Contract. The defendant No.14(b), against whom, relief in
the motion as prayed for, is not party to the suit and even the alleged
Licensee in possession is not the party. Suit is filed in the year 1980;
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whereas the present motion is of 2019. Even assuming the license to
have been executed by the deceased defendant No.14 and his wife, the
same has come to an end in the year 2021 so that the cause of action in
the motion on the basis of the fact of inducting licensee in possession
has come to an end. The direction for accounts and compensation
against defendant No.14(b) are beyond the scope of suit as plaintiff has
never amended the plaint alleging the loss of his possession.
4. Consideration : Heard all the concerned. In view of the
submissions at bar and the record, the following are the points for
determination alongwith my findings thereon for the reasons ensuing;
Sr. No. Points Findings
1. Whether plaintiff is entitled to the interim
injunction, appointment of receiver and
direction for account against the respondent
in the Notice of Motion as prayed ?
No
2. What order ? As per final order
Reasons :
5. At the outset, it has to be stated that the suit is for Specific
Performance of Contract for Sale averred to be executed by defendants
No.1 and 2, in whose favour, defendants No.3 to 25 had executed an
agreement for sale. It has been pleaded that, defendants No.3 to 25 put
defendants No. 1 and 2 in possession and defendants No.1 and 2 put
plaintiff in possession. Hence, once plaintiff is presupposing himself to
be the party in possession of the suit property, there can be no question
of grant of any relief against any party restraining him from parting
with the possession of the suit property or any direction for receiver to
assume possession of the property not pleaded to be in possession of
any person other than plaintiff, in the suit.
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6. If, at all, it is the case of the plaintiff that he lost possession
pending the suit, this post institution fact ought to have been brought
on record by way of amendment in the plaint, which is not done in this
case. It has been argued that, plaintiff is in possession of open land in
the suit property; whereas fixtures are in possession of defendant
No.14(b). However, plaintiff has not pleaded this fact of existence of
fixture on the suit property being in possession of someone else in the
plaint, or has not incorporated this fact in the plaint by way of
amendment. He has not even sought for the relief of recovery of
possession of fixture, if, according to the plaintiff, those are in
possession of someone else.
7. Hence, if the plaintiff has not sought for any relief
regarding the fixture on the property, which he alleges have to been put
in possession of the licensee in the year 2016, he can not have any right
to claim interim relief of restraining such person from parting with
possession or for appointment of receiver directing him to assume the
possession of the fixture, which plaintiff has not claimed for recovery of
possession by way of decree.
8. It is settled principle of law that, the relief, which has not
been prayed for by way of decree in the suit and can not be granted by
way of decree, can not be granted at an interim stage. That to which
plaintiff is not entitled at final stage, can not indirectly be obtained by
the camouflage of Notice of Motion at the interim stage. Furthermore,
the only ground for moving this motion in the year 2019 (i.e. after the
laps of 39 years of the suit), has been the execution of license by the
defendant No.14 and putting the licensee in the possession in the
breach of order of injunction. However, pending suit, defendant Nos.14
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died and the motion has been taken out against defendant No.14(b) as
the respondent herein without making him defendant in the suit.
Moreover, the motion for breach of injunction order and the contempt
against defendant No.14, 14(b) as well as against other respondents
have been heard and dismissed by this court by ruling that there has
been no breach of order of injunction on the part of those respondents.
Moreover, the term of license has come to an end even assuming the
case of the license so that the cause of action has become infructuous.
9. As it has not been the case of the plaintiff in the suit that
either the defendant or some stranger to the suit are utilizing some part
of the suit property or fixture thereupon and there has been no claim
for such wrongful use or occupation in the suit property, plaintiff is not
entitled to claim the same at interim stage, more so against the stranger
to the suit.
10. Hence, there is no merit in the belated motion taken out
after the lapse of 39 years, which is being adjudicated after 7 years of
the motion. One more fact that needs to be added to the aforesaid
reasoning is that, right in the year 1982, a Notice of Motion for several
interim reliefs were claimed; but the Hon’ble High Court was not
pleased to grant other reliefs in Notice of Motion. Moreover, plaintiff is
claiming for Specific Performance of the Contract for Sale against
defendants No.1 and 2, when, admittedly, the property is belonging to
defendants No.3 to 25, with whom, plaintiff has no privity of contract,
and who are the original owners. Perhaps, this weighed while passing
an order in the erstwhile Notice of Motion, that the motion for the rest
of the reliefs could not find favour with the Hon’ble High Court.
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11. For the aforesaid reasons, the Notice of Motion is liable to
be dismissed.
Accordingly, the findings are recorded.
In the result, I pass the following order :
ORDER
1. Notice of Motion No.3841 of 2019 is dismissed.
2. Costs in main cause.
(D.R. Deshpande)
Judge,
City Civil Court,
Date: 01.08.2026 Gr. Bombay.
Dictated on : 01.08.2026
Transcribed on : 01.08.2026
Signed on : 01.08.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
01.08.2026 At 3.30 P.M. J.S.CHAVAN
UPLOAD DATE AND TIME NAME OF THE STENOGRAPHER
Name of the Judge (With Court
Room Number)
HHJ D.R. DESHPANDE
JUDGE, CITY CIVIL COURT
(C.R.NO.02)
Date of pronouncement of
Judgment/ Order
01.08.2026
Judgment/Order signed by P.O.
on
01.08.2026
Judgment/Order uploaded on 01.08.2026
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