Interim Order 1

Order Details: Notice of Motion
Pdf Text: NM 367/18 in SU 96/18 .. 1 .. Order
CNR No. MHCC010014632018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 367 OF 2018
IN
SUIT NO. 96 OF 2018
MRS. HASMATUNNISHA SHARIF AHMED QURESHI
...Plaintiff.
V/s.
MOHAMMED JAFAR SHARIF AHMED QURESHI & ANR.
...Defendant.
Appearances:
Ld. Adv. Mr. M.A. Edenwala for plaintiff.
None present for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 16th October, 2018.
: ORAL ORDER :
The plaintiff has taken out this Notice of Motion and has
requested to grant interim relief pending, hearing and disposal of the
suit. The interim reliefs sought for is to grant temporary injunction
restraining the defendants No.1 and 2 from dispossessing the plaintiff
and/or her third son Nasir Hussain Qureshi and/or disturbing or
causing hindrance in occupation and possession of the plaintiff and her
son Nasir Hussain Qureshi and his family over the suit premises.
2. The suit premises is sdescribed in the prayer clause (a) of the
Notice of Motion as Room No.39, Pathan Masjid Compound, Balasheth
Madhukar Marg, Near India Bulls Gate No.3, Elphinstone(W), Mumbai
400013 admeasuring about 300 Sq. Feet together with loft as above.
-- 1 of 5 --
NM 367/18 in SU 96/18 .. 2 .. Order
3. The plaintiff's case may be stated as under :
The plaintiff is tenant, occupant and well and sufficiently entitled
to Room No.39 i.e. suit premises. The plaintiff is in occupation of the
suit premises since last more than 40 years, alongwith her family. She
resided therein with her husband and all her children were brought up
at the suit premises. The suit premises was acquired by the plaintiff on
tenancy basis and the rent receipt stands in her name. The suit premises
was acquired by the plaintiff out of the money received from her father.
Defendants No.1 and 2 are her sons. In the year 1989, the defendants
No.1 got married and went to reside alongwith his wife at Malwani,
Malad. The defendant No.1 has his own flat there. The defendant No.2
also acquired a flat in Malad and shifted there alongwith his wife and
children. Presently, the plaintiff is residing in the suit premises
alongwith her third son Nasir Hussain Qureshi and his wife and
children. Mr. Nasir Hussain Qureshi and his family are looking after the
day to day expenses of the entire family including the plaintiff. Thus,
according to the plaintiff, the defendants are not in occupation of the
suit premises nor they have any right to occupy it. However, in the
month of August 2017, the defendants No.1 and 2 came to the suit
premises together and started demanding the plaintiff to sell out the
suit premises and give the sale proceed to them. Thereafter, on
11.11.2017, the defendants No.1 and 2 again came and threatened the
plaintiff to vacate the suit premises and go out alongwith her third son
Nasir Hussain Qureshi. These acts of defendants are continuous.
For all these reasons, the plaintiff has apprehension of being
dispossessed from the suit premises forcefully, without following due
process of law, at the hands of defendants. Therefore, the plaintiff has
filed the instant suit for injunction. By way of the instant Notice of
Motion, the interim relief, as described herein earlier, has been asked
-- 2 of 5 --
NM 367/18 in SU 96/18 .. 3 .. Order
for.
4. The defendants have been served with the Notice of Motion. They
had appeared on 30.01.2018, thereafter, they started remaining absent
and, thus, they have failed to file reply to the Notice of Motion.
Therefore, the Notice of Motion is proceeded without their reply.
5. I have heard arguments advanced by learned Advocate of the
plaintiff. Following points arise for my determination on which I record
my findings as under for the reasons to follow :
POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case for granting the
interim relief as requested in the
instant Notice of Motion ?
In the Affirmative
2. Whether the plaintiff has balance of
convenience in his favour ?
In the Affirmative
3. Whether the plaintiff would suffer
irreparable loss, if temporary
injunction is not granted ?
In the Affirmative
4. What order? The Notice of Motion is
allowed in terms of the
operative order being
passed herein below.
: R E A S O N S :
AS TO POINT NO.1 TO 4 :
6. At the outset, it is noted that the defendants have not opposed or
contested the claim of the plaintiff that she is residing in her premises
alongwith her third son Mr. Nasir Husssain Qureshi. Moreover, the
contentions of the plaintiff in the plaint and in the affidavit in support
of the Notice of Motion are supported by the documents produced by
-- 3 of 5 --
NM 367/18 in SU 96/18 .. 4 .. Order
the plaintiff with the list. Those documents are rent receipt, electricity
bill, Aadhar card of the plaintiff, election card of the plaintiff and her
third son and wife of her third son etc. All these documents are
pertaining to the suit premises. The plaintiff has also filed repair
permission issued by the Corporation in the year 1991. Therefore, I hold
that the plaintiff has prima facie established that she and her third son
are occupying the suit premises and the defendants No.1 and 2
presently out of the suit premises. The contention of the plaintiff that
she has been threatened by the defendants has not been denied by the
defendants by filing affidavit in reply to the present Notice of Motion.
Therefore, the plaintiff has prima facie established that there is
apprehension of her dispossession at the hands of the defendants. If, the
defendants would succeed in dispossessing the plaintiff, she would
suffer irreparable loss. If, the plaintiff would be evicted by the
defendants, the plaintiff would not have any other accommodation for
residence of herself and her third son Nasir Hussain Qureshi and his
family. On the other hand, the defendants are said to have their
separate premises for their residence. Hence, if the temporary
injunction would not granted, the plaintiff would suffer irreparable loss.
The plaintiff has balance of convenience in her favour. Hence, I have
recorded affirmative findings on all the points No.1,2 and 3. In view of
affirmative findings on points No.1,2 and 3, I hold that the plaintiff is
entitled for temporary injunction restraining defendants No.1 and 2
from causing obstruction in occupation and possession of the plaintiff
and her son Nasir Hussain Qureshi and his family as requested in the
prayer clause (a) of the Notice of Motion. Hence, I proceed to pass the
following order.
-- 4 of 5 --
NM 367/18 in SU 96/18 .. 5 .. Order
: O R D E R :
1. The Notice of Motion No.367 of 2018 is hereby
allowed in following terms.
(i) The defendants No.1 and 2 are hereby restrained
pending, hearing and disposal of the suit from causing
obstruction in possession and occupation of the plaintiff and
her son Nasir Hussain Qureshi and his family over the suit
premises without following due process of law.
(ii) In these terms, the Notice of Motion stands disposed of.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 16.10.2018. City Civil Court, Gr. Mumbai
Dictated on : 16.10.2018.
Transcribed on : 17.10.2018.
Signed on : 19.10.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.10.2018, at 11.35 a.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 16.10.2018.
Judgment/order signed by P.O. on 19.10.2018.
Judgment/order uploaded on 19.10.2018.
-- 5 of 5 --