Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No. 670 of 2020 1
MHCC010017422020
Presented on : 10-02-2020
Registered on : 10-02-2020
Decided on : 23-02-2024
Duration : 04Y, 00M,13D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 670 OF 2020
IN
S. C. SUIT NO. 270 OF 2020
Mrs. Rita Joan Gomez ...Plaintiff
Versus
John Peter Fernandes and another ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.65).
DATE : 23rd February, 2024.
Ld. Advocate Shri. Amol Tembe for the plaintiff.
None for defendants No.1 and 2.
ORDER
1. The plaintiff has filed the notice of motion for relief of
temporary injunction and mandatory injunction.
2. Perused affidavit in support, affidavit in reply filed by
defendant No.1 and additional affidavit filed by the plaintiff. I have
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Notice of Motion No. 670 of 2020 2
also gone through the suit proceeding. Heard Ld. Counsel Shri. Amol
Tembe for the plaintiff.
3. Defendant no.1 is brother-in-law of the plaintiff. Defendant
No.2 is sister of plaintiff. The plaintiff has claimed exclusive possession
over the suit premises consisting of entire 2nd floor in the building
named Mativia having built up area 141.92 sq.mtrs situated land
bearing Plot No. 238/C of Suburban Scheme No.III of Chembur( for
short, ‘ suit premises’). As the defendants are trying to evict the plaintiff
from the suit premises, she has approached to the court for interim
reliefs. Ld. Counsel Shri. Amol Tembe submitted that the suit premises
was allotted as per Lease Deed Exh-B annexed to the plaint in favour of
deceased Mathew and Flavia. The suit building was constructed on the
said land. The deceased Mathew and Flavia had handed over possession
of the suit premises to the plaintiff being their daughter. Another
daughter of Mathew and Flavia namely Priscilla married with defendant
No.1 and she continued to occupy one room alongwith her son Croydon
as gratis licensee. The plaintiff has also given particulars regarding as to
how the plaintiff and defendants have acquired rights in respective
portions in the suit building in para 8 to 11 of the plaint. In short, the
plaintiff has set out the case regarding her rights in the suit premises by
virtue of Gift Deed dtd. 15-01-2016 executed by deceased Mathew and
Flavia. She had given suit premises on leave and license basis as per
agreement Exh.T annexed to the plaint. The plaintiff was also receiving
license fees. The plaintiff resides in Australia. The plaintiff has also
given details of obstruction on 29-12-2019, which had provided cause
of action to file the suit. As defendants No.1 and 2 tried to take control
of the building by obstructing the proposed licensee of the suit premises
as referred para 6 of additional affidavit on 06-12-2023, the plaintiff is
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Notice of Motion No. 670 of 2020 3
justified in seeking interim relief. Defendant No.2 has already refused to
file reply as mentioned in roznama dtd. 13-10-2021. Defendant No.1
has filed affidavit in reply to which several photographs are annexed. It
is contended that there is no alleged dispossession on 19-12-2019. In
short, the defendants have not disputed rights of the plaintiff in the suit
premises. Considering all these aspects, the plaintiff cannot be
prevented from accessing and enjoying the suit premises. If interim
relief is granted, no prejudice would be caused to the defendants.
Considering the aspects of prima facie case, balance of convenience and
grater hardship tilt towards the plaintiff, she is entitled to temporary
injunction and mandatory injunction as prayed. Hence, I pass following
order:
-ORDER-
1. Notice of Motion No. 670 of 2020 is made absolute in
terms of prayer clauses (a) to (f).
2. Proceeding of Notice of Motion No. 670 of 2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.65)
Mumbai.
Date : 23/02/2024.
Dictated on : 23/02/2024.
Typed on : 23/02/2024.
Signed on : 23/02/2024.
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Notice of Motion No. 670 of 2020 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/02/2024. 5.00 p.m. K.M.Rana
Name of the Judge (with Court Room
no.65)
HHJ Shri R.R.Bhagwat.
(Court Room No.65).
Date of Pronouncement of Judgment/Order 23/02/2024
Judgment/Order signed by P.O. on 23/02/2024.
Judgment/Order uploaded on 23/02/2024.
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