Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.46218 in SC SU No.78618
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.462 OF 2018
(CNR No.MHCC010018462018)
IN
SC SUIT NO.786 OF 2018.
(CNR No.MHCC010001252018)
Mrs. Mohini Brahmanand Gupta }...Plaintiff.
Versus
Krishna Brahmanand Gupta & Ors. }..Defendants.
Shri.Babita Pandey, learned advocate for the plaintiff.
Shri.J.P.Mishra, learned advocate for defendant Nos.1 & 2.
CORAM : HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 20/12/2018)
1. This Notice of Motion is taken out by the plaintiff vide
which, relief is claimed to temporarily restrain defendant No.1 from
selling or disposing of in any other manner the suit premises bearing
room No.208 described in detailed in the plaint, pending final disposal
of suit. Relief is also claimed to restrain defendant No.3 from removing
the name of plaintiff on electric meter installed at the suit premises.
Read the reply. Heard learned Smt.Babita Pandey, advocate for the
plaintiff and learned Shri.J.P.Pandey, advocate for defendant Nos.1 & 2.
Perused the entire record.
2. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether primafacie case lies in favour of the
plaintiff? ...No.
ii)Whether balance of convenience lies in favour
of the plaintiff? ...No.
iii)Whether irreparable loss will cause to the
plaintiff if injunctions as prayed are not granted? ...No.
iv)What order? ...As per final order.
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R E A S O N S
AS TO POINT Nos.(i) TO (iii):
3. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that plaintiff is maintaining the suit
premises even though plaintiff herself is not residing therein but
defendant No.1 is fraudulently trying to get the suit premises
transferred in his name. She argued that electric meter was transferred
previously in the name of defendant No.1 by defendant No.3 but on
complaints by the plaintiff, it is again transferred in the name of the
plaintiff. She argued that police has made inquiry as per the directions
issued by the Hon'ble High Court but any action is not taken by the
police against the defendants. She argued that defendant No.1 was a
minor boy at the time of death of his father hence, he was not in a
position to earn any income that time due to which, it can not be
accepted that defendant No.1 himself has contributed any amount for
acquiring the suit premises. She further argued that defendant No.1 is
trying to transfer the electric meter in his name on the basis of
fabricated document with an intention to create third party interest in
the suit premises and if defendants succeed in their those attempts, it
will cause an irreparable loss to the plaintiff due to which, it is
necessary to grant temporary injunctions in favour of plaintiff pending
final disposal of the suit.
4. As against this, learned advocate for defendant Nos.1 and 2
argued that plaintiff has not produced sufficient material to show her
rights in the suit premises hence, any relief can not be granted in her
favour. He argued that defendants are not interested in creating third
party interest in the suit premises and on that count any relief in that
regard can not be granted in favour of the plaintiff. He argued that all
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the statements made by the plaintiff are false hence, Notice of Motion is
liable to be rejected.
5. It is not in dispute that defendant No.1 is son of plaintiff
and defendant No.2 is the wife of defendant No.1. It also does not
appear in dispute that the suit premises was standing in the name of
Brahmanand Gupta & upon death of said Brahmanand Gupta in the
year 2007, plaintiff got married to one Vaikunthanath Jagannath Gupta
on 04/01/2010. Admittedly, plaintiff has filed the suit by mentioning
her name as Mohini Brahmanand Gupta & not as Mohini Vaikunthanath
Gupta even though she has performed marriage with Vaikunthanath
Gupta after demise of her husband Brahmanand Gupta. It meas that
plaintiff has not come before the court with clean hands. May that it be
so, the question for consideration is whether plaintiff has produced
sufficient material for accepting at this stage that defendant Nos.1 and 2
are trying to create third party interest in the suit premises and to
remove the name of plaintiff from the electric meter installed at the suit
premises as is alleged?
6. It is apparent from the averments made in the supporting
affidavit itself that defendant No.1 has disconnected electric connection
on the ground floor of the suit premises. Learned advocate for plaintiff
argued that it is necessary to issue direction to defendants to restore
electric connection as the same is disconnected illegally. Said argument
is beyond the prayers made in the Notice of Motion hence, the prayer
made in that regard orally by the learned advocate for plaintiff during
her argument, can not be accepted.
7. So far as the prayer made for restraining the defendants
from removing the name of plaintiff from the electric meter is
concerned, copy of electric bill shows that electric connection is in the
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name of the plaintiff. Plaintiff herself has contended that her name was
removed from the electric meter but thereafter, her name is again
mentioned on the electric meter by defendant No.3. Copy of application
filed by plaintiff with defendant No.3 shows that she has already
informed defendant No.3 that electric meter should not be transferred
in name of anybody else without her prior permission. There is no
material for accepting that defendant No.3 has thereafter also taken any
action for removing the name of plaintiff from the electric meter hence,
in absence of any material in that regard, relief of temporary injunction
cannot be granted in favour of plaintiff.
8. Even though prayer is made by the plaintiff that defendant
Nos.1 and 2 are trying to create third party interest in the suit premises,
she has nowhere given details as to in whose favour the transfer is
sought to be made by defendant Nos.1 & 2. Again, learned advocate for
defendant Nos.1 & 2 has made a statement at the bar that those
defendants are not interested in creating third party interest in the suit
premises. Allegation is made that defendant Nos.1 & 2 have joined
hands with defendant No.3 for creating third party interest. Said
allegations against defendant No.3 is not appearing to acceptable as it is
the own contention of the plaintiff that on the basis of her complaint,
defendant No.3 has removed the name of defendant No.1 & put the
name of plaintiff again on the electric meter. Thus, the allegations made
in the Notice of Motion being not supported by proper material & in
view of the statement made at the bar by learned advocate for
defendant Nos.1 & 2, there appears no substance in the contention of
the plaintiff that defendants are trying to create third party interest in
the suit premises.
9. For all those reasons, I hold that neither primafacie case
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nor balance of convenience do lie in favour of the plaintiff. In the result,
there is no question of causing any irreparable loss to the plaintiff if
injunctions as prayed are not granted in her favour hence, holding that
plaintiff is not entitled for the reliefs claimed, I answered Point Nos.(i)
to (iii) accordingly and pass the following order.
O R D E R
Notice of Motion No.462 of 2018 stands rejected.
Date:20/12/2018 (P. P. RAJVAIDYA)
Dictated on : 20/12/2018. Judge, C.R.No.12,
Transcribed on : 27/12/2018. City Civil Court,
Signed on : 27/12/2018. Gr. Bombay.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
31/12/2018 at 12.15 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 20/12/2018.
Order signed by P.O. on 27/12/2018.
Order uploaded on 31/12/2018.
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