1 NMS223.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 223 OF 2010 IN SUIT NO. 1047 OF 1980 Smt. Laila w/o. I.A. Bharucha & Ors. ... Plaintiffs. V/s. Nirmala Kantilal Shah & Anr. ... Defendants. Mr. R.S. Ghadge i/b. Nandlal Kothari and Sabir for the Plaintiffs. Ms. Aparna Muralidharan i/b. P.G. Lad for Defendant 1. CORAM : R.Y. GANOO, J. DATED : 3rd DECEMBER 2010. P.C. :- The affidavit in reply is filed by Defendant No.1. Same is taken on record. Defendant No.2 has expired. Hence, this Motion would survive as against Defendant No.1 only. 2. The Plaintiffs secured an order of injunction dated 26th March 1990 whereby, in principal the Defendants were restrained from creating third party rights and/or parting with possession in regard to the property including factory premises open plot of land more particularly, described in prayer clause (a) of the said Motion No.961 of 1990. 2 NMS223.10.sxw 3. I have heard learned Counsels on both sides. The Plaintiffs has in paragraph 15 summarized the various allegations which in the opinion of the Plaintiffs constitute contempt. The Plaintiffs have annexed photographs which according to the Plaintiffs indicate the violation of the order. The Item Nos. (a) to (g) described in the para 15 are of absolutely general nature and there is no prima-facie material for the purposes of accepting the allegations levelled by the Plaintiffs against Defendant No.1 against whom this Motion survives. In clause (h) it is alleged that M/s. Batco Transport Co. is inducted for Warehousing in factory premises of M/s. Janata Enamal Works. Except this allegation, there is no material in support of that. 4. Learned Counsel appearing for the Plaintiffs had drawn my attention to Exhibit ‘C’ to this Motion. She prepared a chart of receipts showing certain amount paid by M/s. Everglow Lighting Industries. Text of the receipts are not annexed to the affidavit in support. Said receipts were produced before the Court. According to the Plaintiffs, these receipts are issued by the Power of Attorney of Defendant No. 1. A perusal of these receipts would go to show that Power of Attorney of Defendant No.1 has received warehousing charges for certain period from certain parties. Even if these receipts are accepted as it is, it would at the most would go to show that Defendant No.1 is carrying on business of warehousing. Reading of the order would clearly go to show that the 3 NMS223.10.sxw Defendants are not restrained from doing so. This is very much clear because the words ‘dealing with’ appearing in prayer clause has been excluded. This will mean that Defendant No.1 can use the premises for business and allow the premises to be used as warehousing. 5. Learned Counsel for the Plaintiffs had drawn my attention to page 18 of the affidavit in support which depicts 2 photographs. It was argued that by levelling the road, the tube-well has been closed. Even if this argument is accepted, that does not violate the order of the Court. 6. My attention was drawn to photographs appearing on pages 19,20 and 21 to point out that some activities are being carried out as also some construction is put up. Accepting these photographs as it is, it may at the most show that some structure is being put up or has already been put up. Here again, the order passed against the Defendant does not restrain them from putting up any structure. These photographs won’t help the Plaintiffs to support their stand in this Motion. If it is the desire of the Plaintiffs that the Defendants should not carry out any construction on the suit plot, they are free to apply to have the appropriate orders from the Court. In substance, the Plaintiffs have not been able to make out a prima-facie case showing that the Defendants have violated the order passed on 26th March 1990. Hence, the Plaintiffs’ Motion cannot be entertained and the same is required to be dismissed. 4 NMS223.10.sxw 7. Hence, following order is passed to dispose of the Motion :- (i) The Motion is dismissed. (ii) There shall be no order as to costs. (R.Y. GANOO, J.)