Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010028562020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1016 OF 2020
IN
S.C. SUIT NO. 884 OF 2020
Shri Paul Fernandes and another. ...Plaintiffs.
Versus
Smt. Merlyn Al Dowling. … Defendant.
Appearance:
Adv. Clive D’souza for plaintiff.
Adv. A. R. Pandey for defendant.
CORAM : HIS HONOUR JUDGE
R.R.Patare
COURT NO.2
DATED : 9th January, 2023
ORAL ORDER
From the averments of parties following points arise for my
determination in this motion I have recorded my findings from the
averments in this notice of motion against each of them for the
following reasons.
Sr.
No.
POINTS FINDINGS
1. Whether plaintiffs have made out
prima facie case ?
Partly in the
affirmative
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ORDER ..2..
2. Whether balance of conveyance lies in
favour of plaintiffs?
Partly in the
affirmative
3. Whether plaintiffs will suffer
irreparable loss ?
Partly in the
affirmative
4. What order and decree? As per final order.
R E A S O N S
POINTS NO.1 TO 3:-
2. Perused averments, documents and heard both advocates for the
parties. From the admitted facts on record it is seen that one Domnic
Pascol Fernandes was the owner of house bearing no.76-A, situated on
plot no.1256 of Dolar Wadi, Old Prabhadevi Road, Mumbai specifically
described in plaint para no.1 (hereinafter referred as ‘suit house’ for the
short). The aforesaid Domnic Pascol Fernandes died on 13.07.1971
leaving behind his wife one son and two daughters. His wife Paskina
died on 17.12.1990. His son Lowrence died unmarried on 24.02.2019.
One of his daughter Flowerina is missing since several years. The
plaintiffs and defendant are heirs of another daughter Perpethin. The
relation between plaintiffs and defendant are not in dispute. They are
brothers and sisters. The nature of suit house is also not in dispute.
3. Plaintiffs have filed suit for partition and separate possession.
Plaintiffs are claiming 1/3 share each in the suit house alongwith
defendant. It is alleged that the defendant has made illegal possession
in the suit house on 08.04.2019. The defendant came with the defence
that plaintiffs have relinquished their shares in their favour. Therefore,
the share of plaintiffs in the suit house is also not in dispute.
4. By way of present notice of motion plaintiffs seek order of
injunction restraining the defendant from creating third party interest in
the suit house. They also seek to appoint Court Receiver and claims
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ORDER ..3..
monthly compensation from the defendant. As far as first prayer is
concerned it is necessary to consider the relief sought by plaintiffs in the
suit. Plaintiffs are seeking partition of suit house, therefore, it is just and
necessary to maintain status quo as regards title of suit house till the
final decision of suit to avoid further multiplicity of litigation between
the parties. In case of refusal order of injunction the plaintiffs may
suffer irreparable loss. Therefore, balance of conveyance lies in favour
of plaintiffs. As far as second prayer in respect of appointment of Court
Receiver the plaintiffs have not made out a specific case as to in what
manner suit property is going to be wasted or damaged by the
defendant. The plaintiffs have failed to made out case for appointment
of Court Receiver. The allegations to that effect are of general nature
and not specific case is made out by the plaintiffs for appointment of
Court Receiver. As far as third prayer regarding payment of
compensation is concerned, again relief claimed by the plaintiffs are
required to be considered. Admittedly, the defendant is in possession of
suit house. Her right to get share in the suit house is not in dispute.
Therefore she is also having right to possession the suit house in her
own right. Granting compensation at this stage would amounts to
granting final relief in favour of plaintiffs. It is settled that final relief
cannot be granted at interim stage. In the result point no.1 to 3 are
answered partly in the affirmative and following order is passed.
ORDER
Notice of Motion No. 1016 of 2020 is hereby partly allowed in the
following terms with no order as to costs.
a) The defendant is hereby restrained from creating third party
interest in the suit house by way of sale, leased, gift, etc., till the final
decision of suit.
(R.R. Patare)
Judge
City Civil Court, Gr.Mumbai
Date : 09.01.2023
Typed on : 09.01.2023
HHJ signed on : 09.01.2023
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ORDER ..4..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 09.01.2023, 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
09.01.2023
JUDGMENT/ORDER signed by P.O.
on
09.01.2023
JUDGMENT/ORDER uploaded on 09.01.2023
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