Final Order 1

Order Details: Notice of Motion
Pdf Text: N. M. No. 270/2018 Order
MHCC010010892018 Presented on : 19.01.2018
Registered on : 19.01.2018
Decided on : 18.01.2025
Duration : 06 11 30
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
NOTICE OF MOTION NO. 270/2018
IN
SHORT CAUSE SUIT NO. 78/2018
(CNR NO. MHCC010010892018)
Mrs. Gita Milind Tambe
Aged: 36 years, Occupation: Business,
Adult, Hindu, Indian Inhabitant of Mumbai
Having temporary address at Worli B. D. D.
Chawl, 62, Backside Chawl, Room No.10,
Worli, Mumbai - 400018
And Permanent Address at Ambedkar Nagar,
Opp. Kalyan Nagar, Saki Naka Pipeline, Near
Tata Power House, Saki Vihar Road, Saki Naka,
Mumbai - 400072. … Plaintiff
Versus
1 Mr. Shabbir Abdul Shaikh
Aged 34 years, Occupation: Not known
Adult, Indian Inhabitant,
Residing at Kazim Manzil Chawl, Murujanwadi
RT Mehta Company, Behind House of Mr. Dhuri
Saki Vihar Road, Saki Naka, Powai, Mumbai -
400072
2 Mr. Kalu Lokbahadur Singh,
Aged 35 years, Occupation: Not known,
Adult, Indian Inhabitant,
Residing at Jai Bhawani Chawl, Kalyan Nagar
Saki Naka Pipe Line, Near Tata Power House
Saki Vihar Road, Saki Naka, Powai, Mumbai -
400072
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N. M. No. 270/2018 ... 2 … Order
3 Mr. Shahzad Mohsin Khan,
Aged 35 years, Occupation: Not known,
Adult, Indian Inhabitant,
Residing at Ambedkar Nagar, Opp Kalyan
Nagar Saki Naka Pipe Line, Near Tata Power
House, Saki Vihar Road, Saki Naka, Powai,
Mumbai 400072 … Defendants
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 18.01.2025
Appearances: -
Adv. Siddhi Vadake h/f Adv. Khushi Bhadricha 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 Adv. Siddhi Vadake. She submitted that
plaintiff is an owner of the suit premises admeasuring 10 x 15 feet,
situate at Ambedkar Nagar near Tata Power House, Saki Naka,
Mumbai and was in peaceful possession of the same. However, on
08.09.2017 the defendants and their hirelings came to the suit
premises, assaulted plaintiff and her husband and have illegally
dispossessed them from the suit premises. Plaintiff approached
police, but they refused to take any action against defendants.
Only NC came to be registered against them and their hirelings.
3. She further argued that, since plaintiff is illegally
dispossessed from the suit premises, she prayed that during
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N. M. No. 270/2018 ... 3 … Order
pendency of this suit, the Court Receiver may be appointed
directing him to remove the defendants from the suit premises and
to hand over its vacant and peaceful possession to the plaintiff as
an agent of the Court Receiver. Defendants may further be directed
to reasonably compensate the plaintiff for her wrongful
dispossession. Interim mandatory order may also be issued against
the defendants to restore vacant and peaceful possession of the
suit premises to the plaintiff and they may also be temporarily
restrained by an order of injunction from parting with possession
of the suit premises or creating any third-party rights therein. She
prayed that Notice of Motion may be made absolute in its terms.
4. In spite of giving ample opportunity, defendants No.1
and 2 did not file their reply. Therefore, Motion proceeded without
their reply and arguments.
5. 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? :: Partly yes.
2 In whose favour the balance of
convenience lies? :: Partly in favour of
plaintiff.
3 To whom an irreparable loss would
be caused in case the temporary
injunction is granted or refused? ::
Partly to the plaintiff,
if temporary
injunction is not
granted.
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N. M. No. 270/2018 ... 4 … Order
Sr.
No. Points Findings
4 Whether plaintiff is entitled for
temporary injunction as prayed? :: Partly yes.
5 What order? :: Notice of Motion is
partly allowed as per
final order.
REASONS
Points No.1 to 3: -
6. Upon perusal and comparison of the prayers sought by
plaintiff in the Notice of Motion as well as in the main suit, it is
seen that those are exactly same by word to word. The suit is
under Section 6 of the Specific Relief Act, 1963 for restoration of
possession. Law is settled by catena of decisions that the final relief
which is prayed in the plaint should not be granted at any interim
stage. Otherwise, it would be just like to decree the suit at an
interim stage itself, without putting the parties to the trial.
7. Law is also settled that interim mandatory injunction is
to be granted only if the strong prima-facie case of higher standard
which is required for grant of temporary injunction, is made out by
the plaintiff. So far as reliefs regarding mandatory injunction
against the defendant to vacate the suit premises and to restore its
possession to the plaintiff are concerned, those are to be
considered at the time of conclusion of the trial and by recording
evidence of both the sides. Therefore, those prayers cannot be
considered at this juncture.
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N. M. No. 270/2018 ... 5 … Order
8. But so far as prayer Clause No.(f) is concerned, it can
certainly be considered by this Court. Because as on the date of the
filing of the suit, defendant admittedly is in possession of the suit
premises. Therefore, if directions are given to him not to create
any third party rights in the suit premises or not to part with its
possession then no loss as such would be caused to him. Because
by remaining in the possession of the suit premises, he can very
well use it. But if such temporary injunction is not granted in
favour of plaintiff then purpose behind filing the suit would get
frustrated and it would also pose to create multiplicity of
proceedings.
9. As such, plaintiff has partly made out prima-facie case
in her favour. The balance of convenience also partly tilts in her
favour. In the result, I answer Point No.1 partly in the affirmative
and Points No.2 and 3 accordingly.
Point No.4: -
10. In view of my partly affirmative finding to Point No.1,
plaintiff is entitled for the temporary injunction against the
defendants but only in respect of prayer Clause (f) in the Notice of
Motion and not for other reliefs. In the result, I answer this Point
also partly in the affirmative.
Point No.5: -
11. In view of my partly affirmative findings to Points No.1
and 4, Notice of Motion deserves to be partly allowed. Hence, the
following order:-
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N. M. No. 270/2018 ... 6 … Order
ORDER
1. Notice of Motion No.270/2018 is partly allowed and made
absolute in terms of its prayer Clause (f) only.
2. Other reliefs claimed in the Notice of Motion stand rejected.
3. Costs in the cause.
4. Accordingly, Notice of Motion No.270/2018 stands disposed
off.
DATE: - 18.01.2025 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 15.01.2025
Transcribed on : 15.01.2025 and 16.01.2025
Checked on : 18.01.2025
Signed on : 18.01.2025
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N. M. No. 270/2018 ... 7 … Order
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 23.01.2025, AT 03.05 P. M. Siddhesh Shankar Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
no.)
: SHRI R. D. DESHPANDE
C.R.NO.61.
Date of pronouncement of
Judgment/order
:
18.01.2025
Judgment/order signed by the P. O.
on
:
18.01.2025
Judgment/order uploaded on : 23.01.2025
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