Order 1

Order Details: Notice of Motion
Pdf Text: NM 3272/18 & NM 3442/18 .. 1 .. SU 700/18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
COMMON ORDER
IN
NOTICE OF MOTION NO. 3272 OF 2018
(CNR NO. MHCC010110952018)
AND
NOTICE OF MOTION NO.3442 OF 2018
(CNR NO. MHCC010116732018)
IN
SUIT NO. 700 OF 2018
Smt. Roshan Salim Shaikh ...Plaintiff.
V/s.
Mr. Ibrahim Allahbux Shaikh And Ors. ...Defendants.
Appearances:
Ld. Adv. Mr. Vishant Rathod for plaintiff.
Ld. Adv. Mr. Suraj Kudalkar for all defendants.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 24th October, 2018.
: ORAL ORDER :
1. Both the Notices of Motion have been taken out by the
defendants No.1,2,3 and 5. In Notice of Motion No.3272/2018, the
defendants have requested to grant interim relief of injunction
restraining the plaintiff and the respondents No.1Hasan Shaikh, 2Asha
Khan, 3Halim Khan and 4Muzin Khan from entering upon and
remaining in the suit premises and from giving threats of removal of the
licensees of defendants No.1,2,3 and 5 in the suit premises at
mezzanine floor being Room No.31/6, V.P. Nagar, BBlock, Dr. A.B.
Road, Worli, Mumbai18.
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In the Notice of Motion No.3442/2018, the defendants No.1,2,3
and 5 have requested to grant temporary mandatory injunction
pending, hearing and disposal of the suit directing the plaintiff to
restore the electricity supply in respect of the mezzanine floor of the
Room No.4/SM/3/1/6, Block “B”, Worli Lotus, Mumbai400 018.
2. The affidavit in support of the Notice of Motion No.3272/2018 is
filed by the defendants No.1,2,3 and 5. It is mentioned in this affidavit
that defendant No.3 is owner occupier and in possession of the premises
situated at Room No.4/SM/3/1/6, Block “B”, Worli Lotus, Mumbai18.
The defendant No.3 has pitch card in respect of this property. This
property was transferred in the name of Zainabbi Allahbux Shaikh, after
death of defendants father Allahbux Shaikh. Electric bills are also relied
upon in this regard. Defendants mother died on 12.10.2008 in the said
premises. According to the defendants No.1,2,3 and 5, they are the only
legal heirs of said Zainabbi Allahbux Shaikh, to claim the said premises.
The defendants including the husband of the plaintiff decided to sell out
that property, so that, the sale proceed thereof could be used to get the
defendant No.3 treated. Defendant No.3 decided to sell the room
premise after giving share of defendant No.4. She has paid Rs.7 Lac to
the defendant No.4/husband of the plaintiff, in making arrangement for
his family residence in the Palghar area. Defendant No.4 has executed
unregistered documents in this regard. Defendant No.4 has died on
03.05.2016. The plaintiff is deliberately and with the help of
respondents 1 to 4 started harassing licensees of the defendant No.3 in
the said premises. Therefore, it is necessary, according to the
defendants No.1,2,3 and 5, to grant temporary injunction as requested
in this Notice of Motion.
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3. The defendants No.1,2,3 and 5 have filed affidavit in support of
Notice of Motion No.3442/2018 and repeated the aforesaid contentions
as in the Notice of Motion No.3272/2018 in respect of the premises
Room No.4/SM/3/1/6, Block “B”, Worli Lotus, Mumbai400 018. It is
contended by the defendants No.1,2,3 and 5 that the plaintiff has
disconnected the electric supply to the said Room No.4/SM/3/1/6,
Block “B”, Worli Lotus, Mumbai400 018 on 07.09.2011. The plaintiff
has disconnected the said electric supply of the ground floor of the said
premises. The plaintiff is also harassing to the licensees of the
mezzanine floor of the said premises, to whom the said premises has
been let out by the defendant No.3. The plaintiff is not paying outgoing
charges of the ground floor of the suit premises. The defendants
No.1,2,3 and 5 are paying the electricity bills pertaining to the said
mezzanine floor and ground floor. The license fee recovered from the
licensees is utilized to pay the electric bill and maintenance of the suit
premises and the balance fees is saved for the treatment of the
defendant No.3 as she is suffering from abdominal illness. Therefore, in
the Notice of Motion No.3442/2018, the defendants No.1,2,3 and 5
have requested to direct the plaintiff restore the electric supply of
mezzanine floor of Room No.4/SM/3/1/6, Block “B”, Worli Lotus,
Mumbai400 018.
4. The plaintiff has not filed any reply to the Notice of Motion
No.3272/2018 and Notice of Motion No.3442/2018. However, in
course of arguments, her Advocate has opposed these Notices of
Motion.
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5. I have heard the arguments advanced by the Ld. Adv. of the
defendants No.1,2,3 and 5. Following points arise for my determination
on which I record my findings as under for the reasons to follow :
POINTS FINDINGS
1. Whether the defendants No.1,2,3
and 5 have made out prima facie
case for granting the interim relief as
requested in the instant Notice of
Motion ?
In the Negative
2. Whether the defendants have
balance of convenience in his
favour ?
In the Negative
3. Whether the defendants would suffer
irreparable loss, if temporary
injunction is not granted ?
In the Negative
4. What order? The Notice of Motion is
dismissed.
: R E A S O N S :
AS TO POINT NO.1 TO 4 :
6. At the outset, it is noticed that the instant suit is filed in respect of
the premises described in the plaint as Room No.3/1/6, V.P. Nagar, B
Block, Dr. Annie Besant Road, Worli Lotus, Worli, Mumbai400 018,
whereas, in Notice of Motion No.3272/2018 in prayer clause (a), the
premises is described as Room No.31/6, V.P. Nagar, BBlock, Dr. A.B.
Road, Worli, Mumbai18. In affidavit in support of this Notice of
Motion, what is contended is that defendants are in occupation of the
premises Room No.4/SM/3/1/6, Block “B”, Worli Lotus, Mumbai18.
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In Notice of Motion No.3442/2018 in the prayer clause, the
property described is mezzanine floor of Room No.4/SM/3/1/6, Block
“B”, Worli Lotus, Mumbai400 018. Thus, both these Notices of Motion
appear to be in respect of the Room No.4/SM/3/1/6, Block “B”, Worli
Lotus, Mumbai400 018. This description of the property in these
Notices of Motion of the premises about which the affidavits are filed in
support of the Notices of Motion, does not appear to be the same, which
is described in the plaint, for which the plaintiff is claiming the reliefs as
described earlier. Even, assuming that these Notices of Motion are in
respect of the same premises, which is described in the plaint, the
interim relief at the instance of the defendants cannot be granted in
plaintiff's suit, for the reason that the cause of action in respect of both
the Notices of Motion of the defendants appear to be different than the
one on which the suit is filed. In their Notices of Motion, the defendants
have come with the case that there are licensees of the defendant No.3
in the mezzanine floor of the premises and the plaintiff has
disconnected the electric connection to the mezzanine floor and has
disturbed the possession of the licensees of the defendant No.3 on the
mezzanine floor. No description has been given about the ground floor
and the mezzanine floor and the area thereof, in these Notices of
Motion. Even, it is not mentioned, where the electric meter is affixed in
the premises. In such circumstances, I do not find that the defendants
No.1,2,3 and 5 have prima facie case and balance of convenience in
their favour. Therefore, the defendants cannot be said to have balance
of convenience in their favour nor can it be said that they would suffer
irreparable loss, if temporary injunction is not granted. Hence, both
these Notices of Motion will have to be dismissed. Accordingly, I have
answered points No.1 to 4 and I pass the following order.
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: O R D E R :
Notice of Motion No. 3272 of 2018 and Notice of
Motion No.3442 of 2018 are hereby dismissed and they stand
disposed of accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 24.10.2018. City Civil Court, Gr. Mumbai
Dictated on : 24.10.2018.
Transcribed on : 25.10.2018.
Signed on : 26.10.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26.10.2018, at 11.03 a.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 24.10.2018.
Judgment/order signed by P.O. on 26.10.2018.
Judgment/order uploaded on 26.10.2018.
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