Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010021052018
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.554 OF 2018
IN
S.C.SUIT NO.257 OF 2018
Jawahar Karsandas Gori …Plaintiff
Versus.
Bhupendra Jamndas Parekh … Defendant.
Appearance :
Adv. Amit Jaiswal for plaintiff.
Adv. Patel for defendant present.
CORAM : HIS HONOUR JUDGE
R.R.Patare
COURT NO.2
DATED : 11th October, 2022.
ORAL ORDER
Perused pleading. Heard advocate for the parties. Plaintiff has
filed suit for decree of injunction restraining the defendant from causing
obstruction in his right to use lift facility in building i.e., 61/63, Uttam
Manek Chambers, Kazi Sayed Street, Masjid (West), Mumbai.
2. Brief facts of the plaintiff case are as under :-
The plaintiff is residing at 4th floor of suit building. The
defendant is also one of the occupant of said building. The suit building
consist of 5th floors having lift facility since beginning. In the year 2017
-- 1 of 5 --
ORDER ..2..
the lift facility was not working. The plaintiff on his own repair the lift
installed in the suit building. It is alleged that the defendant started
obstruction in the right of plaintiff to use lift facility. It is alleged that
the defendant is deliberately preventing plaintiff from using the lift
facility available in the suit building.
3. The defendant contended that the plaintiff has not explained as
to in what capacity he has claiming right to use lift facility. The lift
facility is available only to the owners of building who are residing at 4th
and 5th floor and not to other occupants and tenants of suit building. It
is contended that defendant’s brother namely Niranjan Parikh was
occupant of 4th floor and was using the lift facility, however, he shifted
at Gujarat. It is contended that plaintiff is not entitled to use lift facility
as it is only for the family of defendant. It is further contended that
premises at 4th floor is used as manufacturing unit. The plaintiff wants
to transfer material at 4th floor and therefore, false suit is filed to
pressurize the defendant. Defendant has denied the right of plaintiff to
use the lift facility available in the suit building.
4. From the above contentions of parties, following points are
framed and I have recorded my findings against each of them for the
following reasons.
Sr.
No.
POINTS FINDINGS
1. Whether plaintiff has made out prima
facie case ? In the affirmative
2. Whether balance of conveyance lies in
favour of plaintiff? In the affirmative
3. Whether plaintiff will suffer irreparable
loss ? In the affirmative
4. What order and decree? As per final order.
-- 2 of 5 --
ORDER ..3..
REASONS
AS TO POINT NO.1 TO 3:-
5. From the pleading and evidence on record it is seen that
previously the brother of defendant was residing at 4th floor of suit
building. The deed of conveyance dated 31.07.2018 suggest that
plaintiff has acquired right in the premises at 4th floor of suit building.
The defendant in his written statement has alleged that the plaintiff is
having intention to lift material up to 4th floor for manufacturing unit.
The pleading and the evidence on record shows that the plaintiff is
occupying 4th floor of suit building. The defendant has specifically
pleaded in his written statement that lift facility is available to the
occupants of 4th and 5th floors of suit building. However, he further
contents that the said facility is available only for the family members of
the defendant. The defendant tried to suggest that plaintiff is not from
his family and therefore, he has not entitled to use the lift facility.
Admittedly the lift facility is available to the occupants of 4th and 5th
floor of suit building, therefore, the defendant cannot prevent plaintiff
from using lift facility only on the ground that he is not member of his
family. The defendant may take legal action for misused of lift facility by
plaintiff but cannot prevent plaintiff from utilizing the lift facility. The
plaintiff has made out prima facie case for grant of order of injunction.
The plaintiff is deprived of his right to use the facility of lift, therefore in
case of refusal of order of injunction the plaintiff will suffer irreparable
loss. The balance of conveyance also lies in favour of plaintiff. In the
result point no.1 to 3 are answered in the affirmative and following
order is passed.
ORDER
Notice of Motion No.554 of 2018 is hereby allowed with no
order as to costs in the following terms .
-- 3 of 5 --
ORDER ..4..
a. Defendant is hereby directed not to obstruct and interfere in the
right of plaintiff to use lift facility at suit building till the final decision
of suit.
(R.R.Patare)
Judge
City Civil Court, Gr.Mumbai
Date : 11.10.2022
Typed on : 11.10.2022
HHJ signed on : 11.10.2022
-- 4 of 5 --
ORDER ..5..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 11.10.2022 , 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.R.Patare
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
11.10.2022
JUDGMENT/ORDER signed by P.O.
on
11.10.2022
JUDGMENT/ORDER uploaded on 11.10.2022
-- 5 of 5 --