Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 716/2020
MHCC010018852020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 716 OF 2020
IN
SUIT NO. 374 OF 2020
Noor Mohd. Sultan Ansari … Plaintiff
Vs.
1. Mohd. Hamza Noor Mohd
& Another … Defendant
Appearance
Learned Adv. Mr. Madhusudan Joshi for the plaintiff
Learned Adv. Ayushi Soni for the defendant No.1
CORAM : HHJ V. M. Pathade
(C.R.NO.62)
Date : 3rd April, 2024
O R D E R
The plaintiff by this notice of motion is seeking interim
mandatory injunction directing the defendants to vacate or remove
themselves alongwith their children, luggage, belongings from the
mezzanine floor of Room No.13, 1st floor, Noorani Chawl No.6, Saadi
Bazar, Madanpura, Maulana Azad Road, Mumbai and also prohibitory
injunction restraining the defendants from disturbing the plaintiff in
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any manner whatsoever of the suit room i.e. Room No.13 on 1st floor,
Noorani Chawl No.6, Saadi Bazar, Madanpura, Maulana Azad Road,
Mumbai. From the perusal of affidavit in support filed by the plaintiff,
it is seen that he is 62 years old. The present suit has been instituted on
17.01.2020 and the present notice of motion is registered on
13.02.2020. Though the defendants are duly served with writ of
summons, notice of motion and other documents annexed therewith
and they entered appearance in the suit, they failed to file their written
statement and also reply to this notice of motion. Hence, by the order
dated 14.06.2023, suit is directed to proceed without written statement
and the notice of motion without reply of the defendant.
2. Heard the learned Counsel for the plaintiff who would
make submission on the lines of the averments made in the plaint, in
the notice of motion and the affidavit in support.
3. From the perusal of the averments in the plaint and the
affidavit in support it is prima facie seen that the defendant No.1 is a
son whereas defendant No.2 is a daughter in law of the plaintiff. The
defendant No.1 and 2 are husband and wife of each other respectively.
It also appears that the plaintiff has acquired tenancy rights in
residential Room No.13 with mezzanine floor thereto situate on the 1st
floor of the building known as Noorani Chawl, Saadi Bazar, Madanpura,
Maulana Azad Road, Mumbai. M/s. Baacha Estate owned by Mr. Ansari
Hayat Ahmed, was the landlord of the said room. It is stated that the
said Ansari sold the entire property to D.B.Realty Ltd. Since after the
death of the wife of the plaintiff long back, he is living his life alone.
Defendant No.1 and 2 along with their three minor children are
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residing in the mezzanine floor of the said Room No.13, without any
legal right when the said defendants are not paying any license fees for
use and occupation of the said premises. The defendants do not extend
any support to the plaintiff. The defendant No.1 is running the business
of sending Indian man power to overseas employers. The defendants
neglected to maintain the plaintiff who has no source of income. Thus,
the plaintiff wants to evict defendant Nos.1 and 2 alongwith their
children and belonging so that he would sub-let the mezzanine floor
premises to the licensee on license fee around Rs.15,000/- per month to
earn his livelihood. Ultimately, the plaintiff has taken out the present
notice of motion.
4. Since, it is apparent that the present notice of motion and
the suit are pending for last four years, defendant No.1 is the son
whereas defendant No.2 is daughter in law of the plaintiff and vide
order dated 14.06.2023, the suit is directed to proceed without written
statement of the defendant and also a fact that the plaintiff is seeking
interim injunction directing the defendant to vacate or remove
themselves alongwith their children and belongings from the suit
premises, which is the main relief claimed in the suit, it would not be
just and appropriate to grant interim mandatory injunction, which
would amount to granting of final relief at interim stage. So far as
interim relief to restrain the defendant from disturbing the plaintiff, a
senior citizen in his occupation of Room No.13 till the disposal of the
present suit is concerned, same will have to be granted. I therefore,
find that the plaintiff has made out a prima facie case with respect to
interim injunction in terms of prayer clause (c) is concerned and
balance of convenience lies in his favour in that respect. I would also
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find that the plaintiff would suffer irreparable loss if the interim
injunction in terms of prayer clause (c) is refused. In the result, notice
of motion will have to be partly allowed to the extent of prayer clause
(c). Hence, I proceed to pass following order
O R D E R
1. The Notice of Motion No. 716 of 2020 is made absolute in terms of
prayer clause (c).
2. Prayer clause (a) and (b) stand refused.
3. Notice of Motion No. 716 of 2020 stands disposed of accordingly.
Date : 03.04.2024 (V. M. Pathade)
Dictated on : 03/04/2024 Judge,
Transcribed on : 04/04/2024 City Civil Court,
Signed on : 05/04/2024 Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.04.2024 at 11.05 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. V.M. PATHADE
(C.R.No.62)
Date of pronouncement of Order 03.04.2024
Order signed by P.O. on 05.04.2024
Order uploaded on 06.04.2024
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