Iresh REPORTABLE IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 354 OF 2019 IN NOTICE OF MOTION NO. 3914 OF 2008 IN SUIT NO. 2855 OF 2008 WITH NOTICE OF MOTION NO. 5 OF 2020 IN APPEAL NO. 354 OF 2019

1. Mehboob Ayub Khan, Age: 49 years, of Mumbai, Indian Inhabitant, Having his address at Mehboob Studio, 100, Hill Road, Bandra (West), Mumbai 400 050.

2. Yasmin Khan, Age: 51 years, of Mumbai, Indian Inhabitant, Having her address at Mehboob Studio, 100, Hill Road, Bandra (West), Mumbai 400 050.

3. Farida Ayub Khan, Age: 71 years, of Mumbai, Indian Inhabitant, Having her address at Mehboob Studio, 100, Hill Road, Bandra (West), Mumbai 400 050. …Appellants ~ versus ~

1. Afzal Khan, Age : 48 yrs, of Mumbai, Indian Inhabitant R/at: 501, “Poseidon” “B”

Wing, off Panch Marg, Yari Road, Versova, Andheri (W), Mumbai 400

2. Aslam Ayub Khan, Age: 51 yrs, of Mumbai, Indian Inhabitant, R/at: Kamdhenu Co-

operative Housing Society Ltd., 1st Cross, Road, Lokhandwala Complex, Andheri (W), Mumbai – 400 061

3. Arafat Ayub Khan, Age: 27 years, of Mumbai, Indian Inhabitant, Having his address at Mehboob Studio, 100, Hill Road, Bandra (West), Mumbai 400 050.

4. Mukul Taly, Age: Adult, of Mumbai, Indian Inhabitant, having address at C/o. M/s.

S. Mohamed bhai & Co. Advocates & Solicitors, 36, Tamarind, Lane, Fort, Mumbai – 400 023.

5. Yasmin Mamoom Lukhmani, Adult of Mumbai, Indian Inhabitant, C/o. Farida Ayub Khan having her address at Mehboob Studios, 100, Hill Road, Bandra (W), Mumbai – 400 050.

6. Mehboob Productions Pvt Ltd, A Company Incorporated under the provisions of the Comapnies Act 1913, and a Company registered under The provisions of the Companies Act, 1956, having its registered office at Mehboob Studio, 100, Hill Road, Bandra (W), Mumbai – 400 050.

7. Shaukat Khan, Age: 67 years, of Mumbai Indian, Inhabitant, having his address at Sonawala Building, Marine Drive, Mumbai. …Respondents

8. Iqbal Khan, (Since Deceased) Age: 72 years, of Mumbai Indian, Inhabitant, having his address at Mehboob Studio, 100, Hill Road, Bandra (W), Mumbai – 400 050. Deleted.

APPEARANCES for the appellants Mr Haresh Jagtiani, Senior Advocate, with Vandana Mehta, i/b Siddhesh Bhole for the Appellants.

for the respondents Mr Anilkumar Patil, i/b Jitendra P.

Gaikwad, for Respondent No. 1.

Ms KR Daviervala, with YP Jijina, i/b Mulla & Mulla for Respondents Nos. 6 & 7.

CORAM : G.S.Patel &

Gauri Godse, JJ.

DATED : 17th August 2022.

ORAL JUDGMENT ( Per GS Patel J) :-

1. The Appellants are original Defendants Nos. 1, 2 & 3 to the Suit. They have come up in appeal against an order of 26th March 2019 dismissing their Notice of Motion No. 3914 of 2008. By that Motion, Defendants Nos. 1, 2 & 3 sought an order of dismissal of the Suit saying that it had been instituted contrary to the provisions of Order II Rule 2 read with Order II Rule 1 of the Code of Civil Procedure, 1908 (“CPC”), also read with Section 9. The interim relief sought in the Motion was for a stay of the Plaintiff’s Notice of Motion No 3384 of 2008 for interim relief.

2. The CPC violation alleged was that the High Court Suit was instituted during the pendency of a previous Suit No. 726 of 2008 filed by these very Plaintiffs in the City Civil Court. No leave under Order II Rule 2 was sought before instituting the High Court Suit. That leave was obtained only after the later suit was filed in the High Court, and the High Court suit contains reliefs that could have been sought in the City Civil Court as well.

3. For more convenient reference, we will take the array of parties as they stand in the High Court suit. The two Plaintiffs, Afzal and Aslam are the sons of Ayub Mehboob Khan, since deceased, from his wife Rahat. The 3rd Defendant, Farida, is the deceased Ayub’s second wife. The 1st Defendant, Mehboob, is Ayub and Farida’s son, and the 2nd Defendant, Yasmin, is their daughter. Afzal, Aslam, Mehboob and Yasmin are all children of Ayub, but from different mothers.

4. The 4th Defendant, A