Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4459-19
MHCC010122012019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.4459 OF 2019
IN
SUIT NO. 1362 OF 2018
Bismillah Waqar Khan … Plaintiff
V/s
Mohd. Salim Rahimtullah Shaikh and Ors. … Defendants
Appearances :
None for plaintiff.
Adv. Jitendra Patel h/f Adv. R.D. Thorat for defendants.
CORAM : D. R. DESHPANDE
JUDGE,
(C.R.NO.02)
DATE : 15th JULY, 2026
ORDER
1. This Notice of Motion has been taken out for temporary
relief of injunction against alienation of the suit property, directions for
accounts in respect of money / amount received by the defendants earn
from lending the suit property or by disposing of the part of the suit
properties and for mandatory injunction to deposit the said amount in
the court.
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2. According to the plaintiff, he and defendants are brothers
and sisters and legal heirs of Late Lakhpati Rahmtulla Shorab @
Rahmtulla Shaikh, who left behind these properties and the legal heirs
as plaintiff and defendants.
3. Admittedly, the suit property (Number of properties) was in
the hands of the deceased father of the parties, who had settled shares
in properties by family arrangement. According to him, claims of other
issues from the wedlock of deceased father with Khatija and Zubeda, his
wives, were settled by giving them other properties in the State of Uttar
Pradesh, and therefore, they have no claim in the suit properties so that,
upon the demise of plaintiff’s father, plaintiff and defendants No.1 and
2 herein are the only parties entitled to the suit properties. According to
the plaintiff, certain properties have been alienated by the defendants
and deprived plaintiff of his rightful claim in the suit property and
certain properties have been let out by the defendants.
4. According, to the defendant, while admitting in Para No.8
regarding family arrangement and previous partition prior to demise of
father, he has admitted that alongwith plaintiff, defendants have right in
the suit property situated in the city of Mumbai, the legal heirs of two
wives of the deceased having given the property at Uttar Pradesh.
According defendants, another wife Mrs.Banubegam and his legal heirs,
who were given the properties in the city of Mumbai, ought to have
been parties to the suit, without whom suit can not proceed. According
to her, the suit is not maintainable for the want of relief of partition and
the motion for injunction is belated after 7 years of the filing of the suit,
which obliterates the apprehension of injury.
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5. Heard both the sides.
6. In view of the submissions at bar and the record, following
are the points for determination alongwith my findings thereon for the
reasons ensuing:
Sr. No. Points Findings
1. Whether plaintiff is made out prima facie
case ?
No.
2. Whether balance of conveyance still in
favour of granting of injunction ?
No
3. Whether irreparable loss to the plaintiff
upon refusal of injunction ?
Nos
4. What order ? As per final order
Reasons :
7. At the outset, it has to be stated that there is no dispute
regarding family arrangement having been taken place prior to the
demise of the prepositus, through whom, all the parties are claiming as
pleaded in Para 8 of the plaint. According to the plaintiff himself, the
issues from the wedlock of wives of the deceased propositus Khatija
and Zubeda were given properties in the State of Uttar Pradesh and
they had no claim in the suit property, which are in Mumbai, and thus,
upon the death of the father, the plaintiff and defendants herein are
entitled to the said premises.
8. Thus, there is no dispute that defendants as well as plaintiff
are entitled to the suit properties according to the case of the plaintiff
himself. Plaintiff has, thus, never been claiming any right to the
property to the exclusion of defendants No.1 and 2 so that claim of
plaintiff is based upon joint property. The plaintiff has pleaded that
some of the properties have been sold out and some of them have been
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leased out and he has been deprived of the usufruct of the suit property,
which he has been claiming as a joint onwer. Thus, pleadings in effect
make out the concrete case of
“ouster” so as to give to plaintiff cause of
action for the
suit for partition and the same cause of action has been
picked up for filing the suit for injunction, perpetual as well as
mandatory. Thus, the relief of partition can be said to be a substantial
relief, which is
“equally efficacious remedy” within the meaning of
Section 41(h) of the Specific Relief Act, 1963, for the omission to
canvas for which remedy, no injunction can be granted. Furthermore,
although no declaration is prayed for in the suit, the plaint is pregnant
of the said relief implicit and
“further relief” of partition not having
been prayed for in furtherance of claim to co-ownership so that the
implicit declaration is barred by virtue of Section Proviso of 34 of Code
of Civil Procedure, 1963.
9. Moreover, the mandatory relief of calling for accounts of
proceeds obtained by the defendants either upon the sale or upon lease
of the properties is nothing but to reddress the
“ouster” caused in
depriving the plaintiff of his share in the said property,to which,
plaintiff, according to his pleadings, is entitled, which clearly brings
about the cause of action for suit for partition, for the omission of
which, relief of injunction simplicitor is not maintainable. The relief of
mandatory injunction for accounts being the relief, which can be
granted only at the final stage, can not be granted at interim stage.
Furthermore, plaintiff has slept over suit / Motion almost for 8 years.
Moreover, the conduct of plaintiff in omitting substantial relief squarely
falls under Section 41 (l) of the Specific Relief Act, 1963 so as to dis-
entitle him to injunction even at the final stage. The same principles
governing the grant or refusal of injunction set-out under Section 41
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and 42 of the Specific Relief Act, 1963, which are applicable while
granting or refusing decree for injunction, are equally applicable to the
grant or refusal of temporary injunction pending the suit.
10. In these circumstances, plaintiff can not be said to have
made out
prima facie case nor can it be said that balance of
convenience tilts in favour of granting injunction. Needless to say,
irreparable loss would be caused to the defendants in case of grant of
injunction at belated stage as the suit is mature for being heard on
merits and evidence.
Accordingly, the findings are recorded.
In the result, I pass the following order :
ORDER
Notice of Motion No.4459 of 2019 is dismissed.
(D.R. Deshpande)
Judge,
City Civil Court,
Date: 15.07.2026 Gr. Bombay.
Dictated on : 15.07.2026
Transcribed on : 15.07.2026
Signed on : 15.07.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
15.07.2026 At 6.20 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
15.07.2026
Judgment/Order signed by P.O.
on
15.07.2026
Judgment/Order uploaded on 15.07.2026
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