Mrs. Zaibunnisa Mohd. Yakub Khan v. M/S. Sayba Home Makers Thr. Partners, Ismail Yakub Payak And Mr. Abdul Rahim I. Payak And ORS.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

SALGAONKAR M M Date: 2022.03.31 16:39:44 +0530 SALGAONKAR M M CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO.756 OF 2022 IN APPEAL FROM ORDER (ST) NO.24499 OF 2021 Zaibunnisa Mohd. Yakub Khan ..

Applicant

Versus

M/s. Sayba Home Makers through Partners & Ors.

..

Respondents ...

Mr.Sagar Batavia h/f Mr.Angad Giri for the Applicant/Appellant.

Mr.Bipin Joshi for the Respondent No.1.

Mr.Dharmesh Vyas with Mr.Om Suryavanshi for the Respondent Nos.2 and 3-MCGM.

...

CORAM: BHARATI DANGRE, J.

DATED : 29th MARCH, 2022 P.C:- 1.

On hearing the learned counsel for the appellant, the delay in institution of the appeal, being of 30 days, deserves to be condoned and it is accordingly condoned. Interim Application No.756 of 2022 is allowed in terms of prayer clause (a).

2.

With the assistance of the learned counsel appearing for the parties, I have perused the impugned order passed by the City Civil Court refusing ad-interim relief in terms of the draft M.M.Salgaonkar

2/2 33 ia-756-22.doc Notice of Motion fled in L.C.Suit (St) No.7981 of 2021. The draft Notice of Motion sought a restraint order against the defendants from granting TDR or acquiring the suit property till disposal of the suit, since the plaintiff claimed that she has right/interest in the suit property, but defendant No.1 has preferred an application to the MCGM to acquire the suit property.

Recording that till date, no order is passed by the MCGM acquiring the land or conferring any TDR and by further recording that MCGM has not taken any decision on the proposal of defendant No.1, it is observed that the Notice of Motion was lacking any cause of action.

The learned Judge, therefore, recorded that Notice of Motion itself is premature and ad-interim relief was rejected, with liberty being granted to the defendants to fle reply to the Notice of Motion.

3.

The reading of the order makes it amply clear that the apprehension expressed by the plaintiff in the draft Notice of Motion is unfounded and the learned Judge has rightly refused to entertain the same. Since the Notice of Motion is still pending, it shall be adjudicated by the learned Judge, upon considering the reply fled by the respondent No.1 and the MCGM.

The impugned order does not warrant any interference and upholding the same, the appeal is dismissed. ( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar