1 AO No.559/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.559 of 2009 Amratlal Balubhai Mehta & ors. ... Appellants versus Dhirajlal Balubhai Mehta & ors. ... Respondents ... Mr. Sanjeev Gorwadkar i/b Mr.Pradeep Ramchandani for the appellants Mr.Roshan Pinto with Mr.Nikhil Karnavat for respondent no.1. CORAM : D.G. KARNIK, J DATED : 15th December 2010 P.C. 1. Learned counsel for the appellant prays for deleting respondent nos.2 and 3. Request is granted. Appeal disposed of against respondent nos.2 and 3 as not pressed. 2. Heard counsel for the appearing parties. 3. The appellants are the original defendant nos.1 to 10. Respondent no.1 is the original plaintiff. 2 AO No.559/10 4. Respondent no.1 and appellant nos.1 to 10 are the co-owners of the suit property. Apprehending that appellants were transferring the suit property to a third person without his consent and apprehending that they were also transferring the tenancies of the tenants (respondent nos.2 and 3) by receiving illegal gratification, the respondent no.1 filed a suit against the appellants for an injunction restraining them from alienating the suit property or transferring the tenancies of the tenants in favour of third persons. In the suit, respondent no.1 made an application for interim injunction. By an order dated 15 April 2009, the trial Court allowed the application and restrained the respondents from creating any third party interest in the suit property till the disposal of the suit. That order is impugned in this appeal. 5. Learned counsel for the appellant submitted that since the appellant was claiming injunction restraining the transfer of the tenancies of the tenants and/or accepting the surrender of the tenancies of the tenants, the City Civil Court had no jurisdiction to try the suit and only the Rent Court had the jurisdiction to entertain and try the suit in view of section 33 of the Maharashtra Rent Control Act. Section 33 of the Maharashtra Rent Control Act says that the suits for recovery of the rent or possession would be exclusively triable by the Rent Court. The present suit is not a suit for recovery of possession by a landlord against a tenant but by a co-landlord restraining his co-landlord from alienating the 3 AO No.559/10 property or transferring the tenancies. Prima facie jurisdiction of a Civil Court to try such suit is not barred. Hence, the contention that “no injunction” could have been granted as Civil Court had no jurisdiction cannot be accepted. Needless to say that the view that the Civil Court’s jurisdiction is not ousted is only a prima facie view and would not be binding on the trial court at the hearing of the suit on merits. The view is only expressed for the purpose of repealing the contention of the appellant that respondent no.1 had not made out a prima facie case. 6. Mr.Gorwadkar then submitted that there cannot be any injunction restraining the appellants from transferring their share in the property as they are admittedly the co-owners. In view of the provisions of section 6 of the Transfer of Property Act which provides that property of every kind can be transferred, there cannot be an injunction restraining the appellants from transferring their share in the property. However, they cannot transfer the entire property or share of the respondent no.1. In the suit property. Subject to this clarification and modification, no oher order is necessary in the appeal. Hence, I pass the following order: O R D E R 7. Appeal is partly allowed. 4 AO No.559/10 8. Appellant nos.1 to 9 who are the co-owners of the suit property (original defendant nos.1 to 9) are restrained from selling, alienating or transferring the share of the respondent no.1 (original plaintiff) in the suit property. It is clarified that this order does not prevent them from transferring their share in the suit property. (D.G.KARNIK, J)