Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.No.36/2019 Order
MHCC01-000075-2019 Presented on : 04.01.2019
Registered on : 04.01.2019
Decided on : 02.07.2025
Duration : 06 06 00
Years Months Days
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT BOMBAY
NOTICE OF MOTION NO.36 OF 2019
(CNR NO. MHCC01-000075-2019)
IN
SHORT CAUSE SUIT NO.3005 OF 2018
Smt. Hasina Aslam Tamboli,
Aged 43 years, Oc: Housewife,
Indian Inhabitant
residing at room no.2, adm.10’X20’ sq.ft.with
mezzanine floor Chawl D-2, Jeavan Sangram
Soc. Hanuman Gymnashiam, Shiv Shakti
Nagar Tunga Village, Sakivihar Road, Powai,
Mumbai – 4000 72. ...Plaintiff.
Versus
1 Mr. Rahim Mumbarak Attar,
Aged 37 years, Oc: Driver,
Indian Inhabitant,
2 Mr. Aamin Mumbarak Attar,
aged 32 years, Oc: Service,
Indian Inhabitant,
Both are residing at room no.09, Maharashtra
Chawl, near sakinaka transport rikshaw union
Office Saki vihar Road, opp. L & T gate no.03,
Milind Nagar, Powai, Mumbai-400072. ...Defendants.
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 02
DATE : 02.07.2025
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N.M.No.36/2019 ... 2 … Order
Appearances: -
Advocate Mr. Akash Singh for plaintiff.
None for defendants.
ORDER
(Dictated and pronounced in open Court)
This Notice of Motion is taken out by the plaintiff.
2. Heard her Advocate Mr.Akash Singh. He submitted that
suit is for declaration and perpetual injunction. The suit premises
is room no.2 admeasuring 10 X 20 ft. situate in Chawl no.D-2,
Jeaven Sangram C.H.S. Shiv Shakti Nagar, Tunga Village, Sakivihar
Road, Powai, Mumbai. The suit premises were purchased by the
late mother of plaintiff in her childhood. After the demise of her
mother, her father became the owner. After marriage also she
resided in the suit premises alongwith her husband and her
parents. Her father executed an affidavit on 12/4/2013, thereby
transferring the suit premises in her favour. Thus, she has become
owner of the suit property. She is having ration card, electricity
bills, Aadhar card, Voter ID as well as bank passbook to show her
residence in the suit premises.
3. He further argued that her father died on 02/04/2016.
Thereafter, defendants started giving threats to her to dispossess
her from the suit premises. NCs also came to be lodged.
Thereafter, she was constrained to file the present suit against
them.
4. He prayed that pending the hearing and final disposal of
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N.M.No.36/2019 ... 3 … Order
the suit, defendants may be temporarily restrained from
dispossessing her from the suit premises, without following the
due process of law. He prayed to make the Notice of Motion
absolute in terms of its prayers.
5. Inspite of giving ample opportunity, defendants failed to
file their affidavit in reply. Therefore, my learned Predecessor
passed an order on 20/6/2024 that this motion to proceed without
their reply.
6. Following Points arise for my determination and I record
my findings against each of them for the reasons given below: -
Sr.
No. Points Findings
1 Whether plaintiff has made out the
prima-facie case? :: Yes.
2 In whose favour the balance of
convenience lies? :: In favour of
Plaintiff.
3 To whom an irreparable loss would be
caused in case the reliefs claimed in
the Notice of Motion are granted or
refused? ::
To the plaintiff, if
the reliefs
claimed in the
NM are not
granted in her
favour.
4 Whether plaintiff is entitled for the
reliefs claimed in the Notice of
Motion? :: Yes.
5 What order? Notice of Motion
is allowed as per
final order.
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N.M.No.36/2019 ... 4 … Order
REASONS
Points No. 1 to 3 -
7. Alongwith plaint, plaintiff has produced on record all the above
referred documents i.e. affidavit and general power of attorney
executed by her father in her favour dated 12/4/2013. Thereby he has
given his no objection for transfer of all of his ownership rights in the
suit premises in her favour and to transfer ration card, electric meter
and all the other documents in her favour.
8. All the above referred documents show her possession over the
suit premises on the date of filing of the suit. N.C. complaint filed with
the police on 28/8/2017 also shows obstruction to her possession in the
suit premises at the hands of defendants.
9. In spite of giving ample opportunity, defendants have failed to
file their affidavit in reply. Thereby it can be said that impliedly they
have admitted all the adverse allegations levelled against them in the
Notice of Motion.
10. Plaintiff has made out the prima-facie case in her favour.
Obviously, therefore, balance of convenience also tilts in her favour
only. She only would suffer an irreparable loss, if the reliefs claimed in
the Notice of Motion are not granted in her favour and vice-a-versa. In
the result, I answer Point no. 1 in the affirmative and Points no. 2 & 3
accordingly.
Point No.4 -
11. In view of affirmative finding to Point no.1 and findings
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N.M.No.36/2019 ... 5 … Order
accordingly to Points no. 2 & 3, plaintiff is entitled for the reliefs
claimed in the Notice of Motion. In the result, I answer this Point
also in the affirmative.
Point No.5 -
12. In view of my affirmative findings to Points no. 1 & 4,
Notice of Motion deserves to be allowed. Hence, the following
order.
O R D E R
1. Notice of Motion No.36/2019 is allowed and is made
absolute in terms of its prayer clause (a).
2. Costs in the cause.
3. Accordingly, Notice of Motion No.36/2019 stands disposed
off.
DATE: - 02.07.2025 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
GR. MUMBAI.
Dictated on : 01.07.2025
Transcribed on : 02.07.2025
Checked on : 02.07.2025
Signed on : 02.07.2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATE 02.07.2025.
UPLOAD DATE AND TIME Mrs. S.S.Sawant.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. R. D. DESHPANDE
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
02.07.2025.
JUDGMENT/ORDER signed by P.O.
on
02.07.2025.
JUDGMENT/ORDER uploaded on 02.07.2025.
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