Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.No.1110/2018 Order
MHCC010035742018 Presented on : 15.03.2018
Registered on : 15.03.2018
Decided on : 18.02.2025
Duration : 06 11 05
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
NOTICE OF MOTION NO.1110/2018
(CNR NO. MHCC010035742018)
IN
SHORT CAUSE SUIT NO.444/2018
Dipesh Bansilal Modi
Adult, Indian Inhabitant of Mumbai
Aged about 33 years,
Occupation: Business
Residing at 34/36, Dr. N. B. Welkar Street,
Kalbadevi Road, Mumbai - 400002. … Plaintiff
Versus
Ashok Arjun Sigwan
Adult, Indian Inhabitant of Mumbai
Aged about 45 years,
residing at Room which is behind Godown
No.4 Ground Floor, 34/36, Modi Building Dr.
N. B. Welkar Street, Kalbadevi Road, Mumbai
- 400002 … Defendant
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 18.02.2025
Appearances: -
Adv. Mr. Chintan Patel for plaintiff.
Adv. Sadhana Jaiswal for defendant.
ORDER
(Dictated and pronounced in open Court)
This Notice of Motion is taken out by the plaintiff.
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N. M. No.1110/2018 ... 2 … Order
2. Heard his Adv. Mr. Chintan Patel. He submitted that,
defendant is illegally occupying the suit premises i.e. the Room
behind Godown No.4 on the Ground Floor of the Modi Building,
situate at Dr. N. B. Welkar Street, Kalbadevi Road, Mumbai. Upon
asked about it, he could not show any document showing his legal
possession over the suit premises. But he claimed that he is staying
there since long. Therefore, plaintiff has filed Suit for Recovery of
Possession of the Suit premises.
3. He further submitted that it has come to the knowledge
of the plaintiff from local brokers and other tenants in the building
that the defendant is trying to sell the suit premises to some third
party and is also likely to part with its possession. If he succeeds
then purpose behind filing the suit would get frustrated. Therefore,
he submitted that during pendency of the suit, the defendant may
be temporarily restrained from parting with possession of the suit
premises or from creating any third-party rights in it by sale etc. in
any manner.
4. Defendant by filing affidavit in reply resisted the Notice
of Motion. His Advocate Sadhana Jaiswal strongly replied that
plaintiff has no locus standi to file suit since he is not the sole
owner of the suit premises. But he is one of the legal heirs of the
original owners Mr. Ishwarlal Modi and Mrs. Veeruben Ishwarlal
Modi. The suit premises were given on rent to his grandfather
since prior to 1951 as he was working with the original owners of
the suit premises. He died in the suit premises in the year 1989. He
obtained permission from the hospital to remove the dead body
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N. M. No.1110/2018 ... 3 … Order
and he is having several documents to show his possession over
the suit premises since the year 1951 onwards. Plaintiff is trying to
dispossess him without following due process of law. If the
temporary injunction as prayed is granted in his favour then he
would suffer an irreparable loss. There is no prima-facie case or
balance of convenience in favour of plaintiff. Therefore, she
submitted that Notice of Motion may be dismissed with costs. She
invited attention of the Court towards the documents produced
along with Affidavit in Reply.
5. Following Points arise for my determination and I
record my findings against each of them for the reasons given
below:-
Sr.
No. Points Findings
1 Whether plaintiff has made out the
prima-facie case? :: Yes.
2 In whose favour the balance of
convenience lies? :: In favour of
plaintiff.
3 To whom an irreparable loss would be
caused in case the reliefs claimed in
the Notice of Motion are granted or
refused?
::
To the plaintiff,
if the reliefs are
not granted in
his favour.
4 Whether plaintiff is entitled for the
reliefs claimed in the Notice of
Motion?
::
Yes.
5 What order? :: Notice of Motion
is allowed as per
final order.
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N. M. No.1110/2018 ... 4 … Order
REASONS
Points No.1 to 3: -
6. Though on one hand, defendant is denying the right,
title and interest of the plaintiff in the suit premises, on the other
hand he is not disputing that he is one of the legal heirs of the
original owners Mr. Ishwarlal Modi and Mrs. Veeruben Ishwarlal
Modi. The Suit is for Recovery of the Possession of the Suit
premises.
7. Whether defendant is lawfully in possession of the suit
premises and whether plaintiff deserves to get possession of the
suit premises, would be decided on merits and upon recording
evidence of both the sides. But if in the meantime, defendant
succeeds in alienating the suit premises to somebody else, creates
third party interest therein or parts with its possession then the
purpose behind filing the suit would get frustrated. In that event
plaintiff only would suffer an irreparable loss.
8. On the contrary, if the temporary injunction as prayed
is granted against the defendant then he would not suffer any loss.
Because he would be in a position to enjoy possession of the suit
premises till the issue is finally decided at the conclusion of the
trial.
9. As such, plaintiff has made out the prima-facie case.
Obviously therefore, the balance of convenience also lies in his
favour only. In the result, I answer Point No.1 in the affirmative
and Points No.2 and 3 accordingly.
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N. M. No.1110/2018 ... 5 … Order
Point No. 4: -
10. In view of my affirmative finding to Point No.1 and
findings accordingly to Points No.2 and 3, the plaintiff is entitled
to claim the relief of temporary injunction as prayed against the
defendant. In the result, I answer this Point also in the affirmative.
Point No. 5: -
11. In view of my affirmative findings to Points No.1 and 4
and findings accordingly to Points No.2 and 3, Notice of Motion
taken out by the plaintiff deserves to be allowed. Hence the
following order: -
ORDER
1. Notice of Motion is allowed in following terms.
2. Defendant is temporarily restrained till the decision of the
Suit, from parting with possession of the Suit premises or
creating any right, title and interest in respect of the Suit
premises in any manner till the decision of the Suit.
3. Costs in the cause.
4. Accordingly, Notice of Motion No.1110/2018 stands
disposed off.
DATE: - 18.02.2025 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 15.02.2025
Transcribed on : 15.02.2025 and 17.02.2025
Checked on : 17.02.2025
Signed on : 18.02.2025
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N. M. No.1110/2018 ... 6 … Order
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 18.02.2025, AT 05.28 P. M. Siddhesh Shankar Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
no.)
: SHRI R. D. DESHPANDE
C.R.NO.61.
Date of pronouncement of
Judgment/order
:
18.02.2025
Judgment/order signed by the P. O.
on
:
18.02.2025
Judgment/order uploaded on : 18.02.2025
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