Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.73 OF 2020
(CNR NO.MHCC010001662020)
IN
S. C. SUIT NO.2043 OF 2019
Mr. Rajesh Bhikaji Salve )..Plaintiff
V/s.
Smt. Usha Machhindra Salve & Anr. )..Defendants
Appearances :
Ld. Adv. Pratap Singh for plaintiff.
Ld. Adv. Preshit Bagul for defendant No.1.
Ld. Adv. Noman Jafri for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 01/03/2023.
ORDER
1 This notice of motion is taken out by the plaintiff for
restraining defendant No.1 from alienating the suit property or creating
third party interest as well as directing defendant No.2 to pay the transit
rent. It is the contention of the plaintiff that he has right in the suit
property, being the legal heir of late grandfather Devram Gangaram
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Salve in the flat/room premises No.4570, situated at Nehru Nagar Vishal
Cooperative Housing Society Limited, Building No.136, Nehru Nagar,
Kurla (East), Mumbai – 400 024. It is further contended that the suit
property is under redevelopment as per the provisions of MHADA and
the defendant No.1 is shown the sole occupant, the defendant No.2 is
also intending to pay the rent of alternate accommodation and to reallot
the new flat after the redevelopment to defendant No.1. Inconsequence
to denial of share of the plaintiff, he filed instant suit and this notice of
motion for Interim relief.
2 In response to the suit summons, the defendants appeared
and filed their replies respectfully, denying the allegations made by the
plaintiff. The defendant No.1 has denied the right of plaintiff in the suit
property and prayed for rejection of notice of motion. Defendant No.2
has denied the necessity to array it as party to the suit and submitted
that the suit is not tenable against them. Defendant No.2 further
submitted that it is Society under the Maharashtra Cooperative Societies
Act, plaintiff is not its member and prayed for rejection of notice of
motion.
3 Heard rival parties at length.
4 During the course of argument, the Ld. Counsel for
defendant No.1 submitted that defendant No.1 is not intending and
willing to alienate or create third party interest in the suit property.
Such submission is also taken on record as per the roznama dated
08/10/2022. The Ld. Counsel for defendant No.2 has submitted that the
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suit against defendant No.2 is not tenable, however, it is the contention
of plaintiff that defendant No.2 is intending to pay the rent for alternate
accommodation to defendant No.1 during the process of re
development. Being entitled for share in the suit property, the plaintiff
is also entitled for share in the rent which is intended to be paid to
defendant No.1.
5 The relief sought against defendant No.2 is in respect of
payment of rent which is monetary relief, thus, the relief against
defendant No.2 may be calculated in terms of money. Therefore, there
cannot be any irreparable loss to the plaintiff. In case the plaintiff
establishes the right in the suit property, he may claim recovery of rent
to the extent of his share, which may be calculated in terms of money.
Therefore, I am of the view that there is no irreparable loss in respect of
the relief claimed against defendant No.2, consequently no relief can be
granted against defendant No.2.
6 Defendant No.1 has already submitted that she is not going
to alienate the suit property, therefore, the notice of motion deserves to
be disposed by accepting the submission of defendant No.1. Hence, the
following order :
O R D E R
1. Notice of Motion No.73/2020 in S.C. Suit
No.2043/2019, is hereby party allowed.
2. Defendant No.1 is hereby restrained from
alienating or creating third party interest in
the suit property, till pendency of the suit.
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3. Notice of Motion is disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 01/03/2023 C.R. No.03, Gr. Mumbai
Dictated on : 01/03/2023
Transcribed on : 02/03/2023
Signed on :
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“Certified to be true and correct copy of the original signed order”.
02/03/2023
at about 5.45 p.m.
(Ms. Sonali S. Sawant)
Stenographer (GradeIII.)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 01/03/2023
Order signed by Hon'ble Judge on : 02/03/2023
Order uploaded on : 02/03/2023
at about 5.45 p.m.
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