Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1499 OF 2018
IN
S.C. SUIT NO. 820 OF 2018
Shrikant Ghanshaym Shah ) Plaintiff.
Versus.
Ketan Ghanshaym Shah ) Defendant.
Adv. Rajni Thorat, for Plaintiff.
Adv. Bhatia for Defendant.
CORAM : Dinesh P. Surana
Court Room No.1
DATED : 17.04.2018.
ORAL ORDER
The present Notice of Motion is taken out by the plaintiff, who is
real brother of the defendant, for grant of temporary injunction against
the defendant not to create third party right in Flat No.501 (more
specifically described in suit and Notice of Motion hereinafter referred
to as Suit Flat No.501) and or restraining the defendant from
interfering, disturbing exclusive possession of the plaintiff in respect of
suit premises and/or to demolish common wall in suit flat Nos.501 and
502.
2. Heard advocate Chouhan for the plaintiff and Advocate Bhatia for
defendant. Perused Notice of Motion and supporting affidavit filed by
the plaintiff. Also perused affidavit in reply to Notice of Motion filed by
the defendant and supporting affidavit of parents of the plaintiff and
defendant supporting to the contention of defendant. Also perused
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pleadings of the plaintiff in the plaint.
3. At the outset, I would like to mention here that the plaintiff not
pressed all the prayers in Notice of Motion except prayer of temporary
injunction against the defendant not to create third party right in
respect of suit flat No.501.
4. Advocate for plaintiff submitted that flat No.501 is owned and
possessed by the plaintiff. At present the plaintiff is residing in Japan.
There is apprehension of the plaintiff that the defendant his brother
may create third party right in suit premises. As such, he prayed for
allowing Notice of Motion to the extent of relief pressed.
5. As against this advocate defendant submitted that the plaintiff
has not come with clear hand in the suit. No case is made out by the
plaintiff for grant of relief pressed. She submitted that the defendant is
not disputing the ownership and possession of the plaintiff over suit
flat. The defendant is residing in adjacent flat No.502 and allegations
made against the defendant are baseless. She submitted that relief is
sought by the plaintiff on the ground that financial condition of the
defendant is not well and if, injunction is granted it will malign the
status of the defendant. She submitted that the plaintiff has not
substantiated his contention by filing any document and affidavit.
Therefore, she prayed for rejection of Notice of Motion with exemplary
costs.
6. The defendant is not disputing the ownership and possession of
the plaintiff over the suit flat. As per the plaintiff, at present he is not
residing in India. On perusal of the pleadings, it seems, that it is
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alleged, that there is possibility of creation of third party right in suit
premises by his brother, who is residing adjacent. Without going into
the aspect as to whether the plaintiff has proved the financial condition
of the defendant, I am of the view, that in such circumstances where
there are inter say dispute between the parties and defendant is not
disputing the ownership and possession over suit premises of the
plaintiff, no prejudice, will be caused to the defendant if, he is ordered
to be restrained not to create third party right in suit premises. The
apprehension of the plaintiff, who is at present residing abroad, of
creation of third party interest in the suit premises by the defendant is
not mere bald statement. He has given statement that he was being
informed that suit premises was being shown through broker by the
defendant. Under such circumstances, I am of the view that to the
extent of relief pressed by the plaintiff, injunction as prayed can be
granted which will not prejudice either to the status of the defendant or
to his reputation. Therefore following order is passed.
ORDER
Plaintiff's Notice of Motion is made absolute.
The defendant is temporarily restrained, pending the suit, not to
create any third party interest in suit property flat No.501 located at
Dun Cooperative Housing Society Ltd, 225/227, Javji Dadji Road,
Tardeo, Mumbai 400 007.
Other prayer (a) and (c) not pressed hence rejected.
No order as to costs.
(D. P. Surana)
Judge
City Civil Court,
Gr. Bombay
Dictated on : 17.04.2018.
Transcribed on : 21.04.2018
HHJ signed on : 23.04.2018
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“CERTIFIED TO BE TRUE & CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
23.04.2018 02.55 p.m. Mr.Vishnu S. Shinde
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) HHJ Shri D.P. Surana (C.R.No.01)
Date of pronouncement of Judgment/ order 17.04.2018
Judgment/Order signed by the P.O. on 23.04.2018
Judgment/Order uploaded on 23.04.2018
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