MUBARAKUNNISA Vs. MOINUDDIN MOHAMMAD USMAN KHAN

JUDGEMENT

(1.) THE appellant (original plaintiff) took out the notice of motion claiming compensation at the rate of Rs. 7,000/- per month from the original defendant Nos. 1 to 7. The suit itself was filed in the year 1987 by the plaintiff claiming 88 paise share in the property alleged to have been left by the plaintiffs father. The appellant-plaintiff claims in the suit that his father was a partner alongwith some of the defendants in three different Bakeries and she had 1/5th share. The plaintiffs father died some time in the year 1955 at which time the plaintiff was minor. The plaintiff attained majority in the year 1959. The suit came to be filed in the year 1987 and the notice of motion was taken out in the year 1993.

(2.) THE learned Single Judge, after reciting the facts has prima facie found that the relief in the notice of motion was to be denied for two reasons. First, that though the suit itself was filed in the year 1987 (lodged in the office of the Prothonotary in the year 1985), the notice of motion was taken out in the year 1993. The learned Single Judge rejected the explanation for this delay on the ground that there was no male member in the family. Secondly, the learned Single Judge points out that the defendants case is that after the death of the plaintiffs father the accounts had been settled and the share falling to plaintiff was given to defendant No. 8, the mother of the plaintiff and since the defendant No. 8 had not raised any dispute or made any claim against the other defendants, the plaintiff could only get her share after the suit was decreed. On this reasoning, the learned Single Judge was of the view that no case was made out for granting the reliefs in the notice of motion. Being aggrieved, the plaintiff is in appeal before us.

(3.) WE have perused the record and heard Mr. Maniar in support of an appeal. Mr. Maniar pointed out that the plaintiff had taken out Notice of Motion No. 115 of 1989 in the suit which was decided by Jhunjhunuwala J. , on 1st April, 1991. In the said notice of motion the learned Single Judge took the view that the assets and properties described in Exhibit A to the plaint were required to be preserved and protected during the pendency of the suit and the notice of motion was made absolute in terms of prayer Clause (b) by which the defendants 1 to 7 were directed to maintain full and true accounts in respect of the assets and properties specified in Exhibit A" to the plaint. Mr. Maniar, learned Counsel for the appellant, stated that this order was challenged in Appeal No. 978 of 1991 and the appeal was dismissed by an order dated 13th April, 1993 (Per Pendse and Cazi, JJ. ). In view of this development, Mr. Maniar contended that the second reason given by learned Single Judge in the order under Appeal was erroneous. Even if we assume this contention of Mr. Maniar to be correct, the fact remains that the suit was lodged in the year 1985 and the notice of motion seeking monthly compensation of Rs. 7,000/- per month was taken out only in the year 1993. Therefore, we too are not satisfied by the explanation given for this delay and latches. We also notice that, in the plaint no such relief had been sought substantive or by way of interim relief. Obviously, there were no pleadings to justify such a prayer.