Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No. 648/2018 1
MHCC010024602018
Presented on : 18-01-2018
Registered on : 16-02-2018
Decided on : 28-02-2024
Duration : 06y 01M 11D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 648 OF 2018
IN
S. C. SUIT NO. 155 OF 2018
Mrs. Sonal Suresh Dhuri ...Plaintiff
Versus
Mrs. Sudnesha Krishna Parab and other ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.65).
DATE : 28th February, 2024.
Ld. Counsel Mr. Mangesh Chavan for the plaintiff.
None for defendants No.1 and 2.
ORDER
1. The plaintiff has filed notice of Motion for temporary
injunction restraining the defendants, their agents, servants, persons
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Notice of Motion No. 648/2018 2
claiming through them from entering in to the suit premises and /or
dispossessing the plaintiff from the suit premises consisting of Room
No.503, Koyna Niwas, Plot No.7, 5th Floor, Naushir Bharucha Marg, New
Chikhalwadi, Grant Road, Mumbai – 400 007 without following due
process of law.
2. Perused affidavit in support, affidavit in reply of defendant
No.1 and the suit proceeding. Heard Ld. Counsel Mr. Mangesh Chavan
for the plaintiff.
3. It is case of the plaintiff that the suit premises was allotted
by MHADA in lieu of old premises to mother of the plaintiff and the
defendants during her lifetime in the year 1990. The plaintiff and
defendants No.1 and 2 got married. Mother and eldest sister
Champavati were only residing in the suit premises. As mother of the
plaintiff was sick and the plaintiff was residing in nearby area, the
plaintiff came to take care of her. Mother of the plaintiff namely
Laxmibai expired on 07.04.2012 due to her ill health. Eldest sister
Champavati was spinster and she expired on 26.04.2015. The plaintiff is
in possession of the suit premises. The plaintiff came to reside in the
suit premises as per last wish of her mother and sister. As defendants
No.1 and 2 threatened the plaintiff to vacate the suit premises on
10.01.2018, present suit is filed for permanent injunction. The plaintiff
has relied upon death certificates of her mother and sister as well as
electricity bill in the name of her mother alongwith three photographs
to prove her possession.
4. Defendant No.1 has contended in affidavit in reply that
there was no use of electricity and the suit premises was kept in lock
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Notice of Motion No. 648/2018 3
after demise of elder sister. The plaintiff is not entitled to the suit
premises by producing photographs. There is no cause of action to file
the present suit. The plaintiff and the defendants have undivided share
in the suit premises. The plaintiff is not in use, occupation and
possession of the suit premises. The plaintiff obtained interim reliefs by
misleading the court. The suit premises is not partitioned by metes and
bounds and therefore, question of dispossession without following due
process of law does not arise. Great harm and prejudice will be caused
to the defendants, if notice of motion is allowed.
5. Considering over all pleadings, it appears that the plaintiff
as well as defendants No.1 and 2 are married and they are residing at
their respective matrimonial houses. It is case of the plaintiff that she
was residing in nearby area and she came to stay in the suit premises as
per wish of her mother and she had looked after her mother during her
last days of life. In short, their is prima facie material to show
possession of the plaintiff over the suit premises. Defendant No.1 has
not claimed physical possession over the suit premises. The defendants
may have equal rights in the suit premises, but they can not be allowed
to dispossessed the plaintiff without following due process of law. All
three legal principles for granting interim reliefs tilt towards the
plaintiff. As the defendants have their own residences and they can
claim their rights in the suit premises by resorting to legal remedies, no
prejudice would be caused to them if notice of motion is allowed. For all
these reasons, Notice of Motion is liable to be allowed. Hence, I pass
following order:
-ORDER-
1. Notice of Motion No. 648 of 2018 in Suit No.155 of 2018 is
made absolute in terms of prayer clause (a).
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Notice of Motion No. 648/2018 4
2. Proceeding of Notice of Motion No. 648 of 2018 in Suit
No.155 of 2018 is closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.65)
Date : 28/02/2024 Mumbai.
Dictated on : 28/02/2024.
Typed on : 28/02/2024.
Signed on : 28/02/2024.
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Notice of Motion No. 648/2018 5
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28/02/2024. 5.30 p.m. K.M.Rana
Name of the Judge (with Court Room
no.65)
HHJ Shri R.R.Bhagwat.
(Court Room No.65).
Date of Pronouncement of Judgment/Order 28/02/2024.
Judgment/Order signed by P.O. on 28/02/2024.
Judgment/Order uploaded on 28/02/2024.
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