Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 781/2020 in S.C.Suit No. 4962/06. 1 Order.
MHCC010021222020
Presented on : 18-02-2020
Registered on : 18-02-2020
Decided on : 19-09-2024
Duration : 4 years, 7 months, 1 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 781 OF 2020
IN
S. C. SUIT NO. 4962 OF 2006
Mr. Ajay Mohan and others )...Plaintiffs
Versus
Mr. H.N.Rai and others )...Defendants
Shri Zubin Dalal alongwith Yohaan Shah, Advocate for the plaintiffs.
Shri Ramakant Yadav alongwith Shri Himanshu Desai alongwith Adiba
Khan, Advocate for the defendant no.1, 2, 4 to 15.
Abdullah Katlariwala alongwith Tatsat Gore, Advocate for the defendant
no.3.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 19th SEPTEMBER, 2024.
ORDER
1. This notice of motion is filed by defendant no.1, 2, 4 to 15
[In short, ‘applicants’] to restrain plaintiff no.2 and 3 from constructing
or erecting any structure over the suit premises.
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N/m No. 781/2020 in S.C.Suit No. 4962/06. 2 Order.
2. It is the contention of the applicants that the plaintiffs have
instituted this suit for declaration and injunction. They have no right or
interest over land bearing C.T.S.No. 6A and 7/1A of Village Powai,
Taluka Kurla and C.T.S.No. 20 and 22 of Village Tirandaz, Taluka Kurla
in view of Agreement for Sale dated 23/10/1969. Applicants further
contend that plaintiffs failed to seek interim relief in form of injunction
in this suit. The order declining the relief of injunction is confirmed
upto Supreme Court. On casual visit of one of associates of
defendants/applicants it is found that plaintiffs have constructed over
suit land. Applicants have obtained the photos of that structure. It
means plaintiff no.3 have breached undertaking given by him before the
Honourable Supreme Court. Hence it is essential to restrain the
plaintiffs from creating or constructing the structure over the suit
premises. Hence this notice of motion.
3. In reply, plaintiffs contended that plaintiff no.3 is in
exclusive possession of suit land since last several years within the
knowledge of applicants. Plaintiff no.3 is the owner of lands under Deed
of Conveyance dated 23/12/2020 which is registered with the Sub-
Registrar of Assurances. Applicants have not mentioned any specific
date on which plaintiffs have erected construction over the suit plot. It
means applicants have made all vague statements. There is no proof to
support their contention. Hence prayed to reject the notice of motion.
4. It is specific submission of learned advocate for applicants
that plaintiffs since institution of the suit failed to seek any relief in
their favour. However, thereafter the plaintiffs amended the suit and
sought the relief of declaration. It is admitted fact that the plaintiff no.1
had executed Agreement for Sale dated 23/10/1969 in favour of
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N/m No. 781/2020 in S.C.Suit No. 4962/06. 3 Order.
defendant no.1 and others. Hence prayed to allow the notice of motion.
On the other hand, it is specific submission of learned advocate for the
plaintiffs that these applicants had instituted suit before the Honourable
High Court seeking relief of injunction and declaration that Conveyance
Deed dated 23/12/2020 executed in favour of plaintiff no.3 to be null
and void and therefore it was apt for the applicants to apply before the
Honourable High Court. Hence prayed to reject the notice of motion.
5. At the outset, it is necessary to note that it is fact that
plaintiffs had instituted the suit for injunction only. Thereafter plaintiffs
amended the plaint and sought relief in respect of agreement dated
23/10/1969. It is also fact that these applicants particularly defendant
no.11, 13 and 7 have filed another suit before High Court seeking relief
of injunction and declaration that Conveyance Deed dated 23/12/2020
executed in favour of plaintiff no.3 is void and not binding upon them.
Thus, it is admitted fact that plaintiffs have challenged the Agreement
for Sale dated 23/10/1969 and on the contrary applicants have
challenged Conveyance Deed dated 23/12/2020. It is also admitted fact
that no interim relief is granted in favour of the plaintiffs. In such case it
has to see whether applicants are entitled for relief of injunction as
sought.
6. Applicants filed copy of plaint filed before the Honourable
High Court seeking relief of injunction etc. On perusal of plaint, it is
seen that applicants state therein that present plaintiff no.1 was original
owner of suit land bearing Survey No.22, Survey No.24, situated at
Village Tirandaz which is converted into C.T.S.No. 19, 20, 21A, 22A,
27A and Survey No.4, Survey No.7 which is known as C.T.S.No. 6A and
7A. They further contend that present plaintiff no.3 claim to be a
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N/m No. 781/2020 in S.C.Suit No. 4962/06. 4 Order.
purchaser of the suit property from plaintiff no.1 and 2 under Deed of
Conveyance dated 23/12/2020. Defendant no.3 herein has instituted
Suit No. 305/2015 seeking relief of specific performance of Agreement
for Sale dated 23/10/1969 and same is pending. They further contend
that in view of Agreement dated 23/10/1969 defendant no.1 and others
were put in possession of the suit property by present plaintiff no.1
accepting consideration amount of Rs.80,000/- and they are ready to
pay balance amount. Therefore applicants have substantial right over
the suit property. They also filed copy of Agreement for Sale dated
23/10/1969 alongwith copy of plaint which is marked as Exh.A.
7. At the cost of repetition it is apt to note that there is no
dispute that the present plaintiffs have instituted this suit for
cancellation of Agreement dated 23/10/1969 and applicants have also
filed suit before Honourable High Court seeking declaration and
injunction that Conveyance Deed Exh.3 is not binding upon them.
Therefore there is substance in submission of learned advocate for
plaintiffs that applicants ought to have approached or filed application
for similar relief in suit filed by defendant no.13 or by defendant no.7,
11 and son of defendant no.13 before the Honourable High Court.
Apart from such submission of plaintiffs, it is necessary to note that an
Agreement dated 23/10/1969 is unregistered agreement and suit for its
specific performance is pending vide Suit No. 305/2015. The
submission of applicants that plaintiffs have constructed or erected
structure over the suit land itself suggests that plaintiffs are in
possession of suit land.
8. It is also pertinent to note that though defendant no.7, 11
and son of defendant no.13 have instituted the suit before the
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N/m No. 781/2020 in S.C.Suit No. 4962/06. 5 Order.
Honourable High Court seeking declaration that Conveyance Deed in
favour of plaintiff no.3 is null and void, they have not sought similar
relief in suit filed by original defendant no.13 or they have not sought
relief of specific performance of Agreement dated 23/10/1969 in suit
filed by them for injunction before the Honourable High Court. It also
shows that only defendant no.13 has sought relief of specific
performance and not rest of the defendants. Therefore considering the
nature of Agreement for Sale dated 23/10/1969 which is unregistered
and fact that applicants except defendant no.13 failed to seek specific
performance disentitle applicants from claiming any right, interest over
suit land untill Suit No. 305/2015 is disposed off in their favour.
Therefore applicants have no prima facie case and balance of
convenience lies in favour of plaintiffs. Considering admitted fact that
plaintiffs are in possession of the suit land, they are the plaintiffs who
will suffer irreparable loss if injunction is granted.
9. It is also necessary to note that applicants have not filed
any other proof on record that plaintiffs have constructed suit property
illegally. They have not filed any document to support their contention.
Therefore there is substance in submission of plaintiffs that averments
in the notice of motion made by the applicants remain in word only. The
contention of plaintiffs that applicants ought to have filed complaint
against plaintiffs before Municipal Ward Officer are not specifically
challenged. Therefore, there is substance in submission of plaintiffs that
the notice of motion is devoid of merits and hence deserves to be
rejected. In the result, following order is passed :
- ORDER -
1. Notice of Motion No. 781/2020 stands rejected.
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N/m No. 781/2020 in S.C.Suit No. 4962/06. 6 Order.
2. Accordingly N/m No. 781/2020 is disposed off.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 19/09/2024. Mumbai.
1. Dictated on : 19/09/2024.
2. Transcribed on : 24/09/2024.
3. Placed for correction on : 24/09/2024.
4. Checked on : 25/09/2024.
5. Correction carried on : 25/09/2024.
6. Signed on : 25/09/2024.
7. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25/09/2024. 4.03 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 19/09/2024.
Judgment/Order signed by P.O. on 25/09/2024.
Judgment/Order uploaded on 25/09/2024.
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