Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 3962020 in Suit no.1520 of 2015
MHCC010009572020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.396 OF 2020
IN
SUIT NO.1520 OF 2015
Jamirullah Din Mohd. Khan ...Plaintiff
V/s
Ishaq Saheb Sarguro ....Defendant.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 7th DAY OF SEPTEMBER, 2022
: Appearance:
Learned Adv. O.P. Singh for the plaintiff
Learned Adv. Patil for the defendant
ORAL ORDER
The plaintiff has taken out the present notice of motion
for claiming reliefs interalia that by mandatory injunction the
defendant be directed to hand over the possession of the suit
premises; for appointment of Court receiver High Court Bombay and
for mesne profit at the rate of Rs.20,000/ per month from the day of
dispossession of the plaintiff and for other reliefs.
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2 Ord. in NM no 3962020 in Suit no.1520 of 2015
2. In short, it is contention of the plaintiff that, he was
tenant of the suit premises. That during the pendency of the suit the
defendant has forcibly taken possession of the suit premises. It is
contended that inspite of pending of the suit, the defendant obtained
decree in respect of the suit premises and took possession of the suit
premises in the execution proceeding. It is contended that the
plaintiff was wrongfully dispossessed of the suit premises and hence
by way of mandatory injunction, the possession of the suit premises
be handed over to the plaintiff with other reliefs as claimed. Hence
the notice of motion.
3. The defendant strongly opposed the notice of motion by
filing reply on affidavit. It is contention of the defendant that the
plaintiff has taken out notice of motion no.2612 /2015 for temporary
injunction to protect his possession. However, at the time of
argument, the learned advocate for the plaintiff make a statement
that defendant has taken possession of the suit premises. Therefore
the notice of motion no. 2612/2015 is disposed of as became
infructuous.
4. It is further contention of the defendant that, he had
obtained the possession of the suit premises by fighting for 18 years
through the Court process. He has decree of Small Causes Court in his
favour. Thus, question of taking forcible or illegal possession of the
suit premises does not arises. Hence, the notice of motion is not
maintainable and needs to be dismissed.
5. Heard both the learned advocates for respective parties.
Perused the record.
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3 Ord. in NM no 3962020 in Suit no.1520 of 2015
6. Following points arise for my determination to which I
record my findings with reasons as follows:
Sr.
No.
Points Determination.
1. Whether the plaintiff is entitled for the
reliefs claimed in the notice of motion? No
2. What order ? As per final order.
REASONS
As to point no.1:
7. It is to be seen that, the defendant has filed suit for
possession and eviction before the Small Causes Court, Mumbai
bearing suit no.368/745 of 1997. In which decree came to be passed
on 31.07.2006 in his favour. The said decree was confirmed by the
Hon'ble High Court of Bombay on 13.09.2015. Accordingly it came
to be executed in November, 2015. Now in the year 2020 the
plaintiff has taken out the present notice of motion for claiming the
possession of suit premises by way of mandatory injunction. As
admitted by the plaintiff himself that the defendant has obtained the
possession of suit premises through executing Court, therefore
question of taking of forcible or wrongful possession of the suit
premises does not arises at all. Hence the plaintiff failed to establish
three basic ingredients for claiming temporary/ interim mandatory
injunction in his favour i.e. prima faice case, balance of convenience
and irreparable loss. The defendant obtained possession of suit
premises through court procedure. There is no eminent danger to suit
property, hence question of appointing court receiver does not arise
at all. Hence , my answer to point no.1 is in the negative.
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4 Ord. in NM no 3962020 in Suit no.1520 of 2015
As to point no.2:
8. In view of the above discussion, I pass the following
order:
ORDER
Notice of motion no.396/2020 is dismissed.
Notice of motion is disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.07.09.2022 (C.R. No.1)
Dictated on : 07.09.2022
Transcribed on : 08.09.2022
Signed on : 08.09.2022
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5 Ord. in NM no 3962020 in Suit no.1520 of 2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 13.09.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 07.09.2022
JUDGMENT/ORDER signed by P.O. on 08.09.2022
JUDGEMENT/ORDER uploaded on 13.09.2022
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