Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.146-18 in L.C.SUIT no.770-11
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 146 OF 2018
(CNR no. MHCC010004892018)
IN
L.C. SUIT NO. 770 OF 2011
(CNR no. MHCC010009782011)
Ms. Meena Phehlajdas Multani ]..Plaintiff
Versus
1. Mr. Mahesh Ramchandra Multani & anr. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 18th February, 2019.
Mr. H. K. Menghani, advocate for plaintiff.
Mr. Amit Munde, advocate for defendant no. 1
Defendant no. 2 in person.
ORDER
1. The defendant no. 2 has taken out this motion seeking
temporary injunction for restraining the plaintiff and defendant no. 1
from disposing off or alienating the suit premises in any manner till the
disposal of the suit.
2. The defendant no. 2 by filing written submissions
submitted that the plaintiff and defendant no. 1, in collusion, are trying
to dispose off the suit premises by violating the rights of defendant no.
2 therein. Earlier, by order dated 07.05.2011, the defendants are
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2 NM no.146-18 in L.C.SUIT no.770-11
restrained from dispossessing the plaintiff for obstructing her possession
of the suit premises. According to her, the plaintiff does not have any
right, title or interests in the suit premises. A collusive suit has been
filed in order to deprive the defendant no. 2 from her rights in the
property left by her deceased father. From reliable sources the
defendant no. 2 came to know that the plaintiff is trying to create third
party interests. Lastly, it is submitted that if temporary injunction is
granted it will not cause harm and prejudice to either of the parties.
3. The learned advocate for the plaintiff submitted that the
motion is not tenable under Order XXXIX Rule 1 or 2 of the Code of
Civil Procedure (C.P.C.). According to him, the defendant no. 2 should
file separate suit seeking such reliefs. Even, the present motion is based
on bare apprehension. She has no right, title or interests in the suit
premises. He lastly, submitted that the plaintiff has acquired rights in
respect of the suit premises on the basis of the will executed by her
brother, who was the father of defendants and in that respect a
testamentary suit is pending.
4. The learned advocate for the defendant no. 1 submitted
that the affidavit in reply be considered as his arguments. He denied
having any collusion inter se defendant no. 1 and plaintiff. On the
contrary, a criminal case is pending against the plaintiff on the count of
commission of forgery etc. He further submitted that the defendant no.
1 resides in the suit premises.
5. The suit has been instituted for injunction simplicitor for
restraining the defendants from obstructing plaintiff's possession to the
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3 NM no.146-18 in L.C.SUIT no.770-11
suit premises. The plaintiff claims to be in exclusive possession of the
suit premises on the basis of a will executed by her brother. Issues are
framed in this suit on 30.01.2012.
6. So far as, the contention raised by the learned advocate for
the plaintiff that the motion is not tenable in view of the provisions of
Order XXXIX Rule 1 or 2 of the C.P.C., as held by the Hon'ble High
Court of Bombay in the case of Nanasaheb vs. Dattu, reported in
1991 Mh.L.J. 685, the reliefs provided under sub Rule (a) of Rule 1 of
Order XXXIX of the C.P.C. are available to both the plaintiff and
defendants, whereas the reliefs provided under sub Rule (b) & (c) of
Rule 1 and the Rule 2 are available only against the defendant. Sub
Rule (a) provides that where a property in dispute in a suit is shown by
affidavit or otherwise in danger of being wasted, damaged or alienated
(emphasis supplied) by any party to the suit or wrongfully sold in
execution of a decree, the plaintiff or the defendant would be entitled
for temporary injunction. Under such circumstance, considering the
relief claimed by defendant no. 2 for temporary injunction for
restraining the plaintiff and defendant no. 1 from alienating or
disposing off the suit premises, it can not be said that the motion is not
tenable and therefore, there is no water in the submissions made by the
learned advocate for the plaintiff.
7. Apart that, the plaintiff has not placed on record anything
except the bare words and affirmations to show any overt act on the
part of either the plaintiff or defendant no. 1 to show prima facie any
attempts made by either of them to dispose off or alienate the suit
premises in any way. On the contrary, a testamentary suit is pending in
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4 NM no.146-18 in L.C.SUIT no.770-11
respect of the alleged bequeath of the suit premises and the parties are
contesting the same. Therefore, the motion being taken out merely on
apprehension is not tenable and required to be dismissed with a further
directions to the parties to bear their own costs of the motion. Thus, the
following order is passed:
ORDER
1. The Notice of Motion no. 146 of 2018 is dismissed.
2. Parties to bear their own costs of the motion.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 18.02.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 18.02.2019
Checked by HHJ on : 20.02.2019
Signed by HHJ on : 20.02.2019
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5 NM no.146-18 in L.C.SUIT no.770-11
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.02.2019 at 3.45 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
18/02/2019
JUDGMENT/ORDER signed by
P.O. on
20/02/2019
JUDGMENT/ORDER uploaded
on
20/02/2019
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