Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 11742018 in Suit no.5597 of 2007
MHCC010037602018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.1174 OF 2018
(HIGH COURT NOTICE OF MOTION NO. 3296 OF 2007
IN
SUIT NO. 5597 OF 2007
IN
(HIGH COURT SUIT NO. 2403 OF 2007)
Anita Sunil Khade (Deleted since deceased)
Sonali Sunil Khade & Ors. ...Plaintiffs
V/s
Dyandev Nivrutti Khade & Ors. ....Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 12th DAY OF AUGUST, 2022
: Appearances:
Adv. Borwala for plaintiff.
Adv. Ashutosh Mishra / Adv. Jitendra Mishra for
defendants no.1 to 3.
ORAL ORDER
Plaintiffs have taken out present notice of motion for
claiming the reliefs interalia for an appointment of Court receiver;
for grant of temporary injunction thereby restraing defendants from
alienating suit properties or creating third party interest in the suit
properties and for restraining the defendants from dispossessing the
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2 Ord. in NM no 11742018 in Suit no.5597 of 2007
plaintiffs from room no.8, Navjivan Society, Building no.11, Ground
floor, TipTop laundry and Dry Cleaners, K.K. Marg, Mumbai Central,
Mumbai (hereinafter referred to as ‘Suit Room’) with other reliefs.
2. In short, it is contention of plaintiffs that they have filed
suit for partition, declaration, permanent injunction and separate
possession of suit properties. It is contended that, suit properties
situated at Pune and suit room situated at Mumbai are ancestral
properties of the plaintiffs and defendants. After the death of
deceased father namely Sunil Khade of plaintiffs no.2 to 4, plaintiffs
became joint owner of the suit properties. Since the life time of their
father Sunil, plaintiffs are residing in the suit room. Now defendants
wants to dispossess plaintiffs from suit room. Plaintiffs also came to
know that defendants are intended to alienate/ create third party
interest in suit properties. Hence, defendants be restrained from
creating third party interest and from dispossessing plaintiffs from
suit room.
3. Defendants strongly opposed the notice of motion by
filing reply on affidavit. It is main contention of defendants that the
suit room is the self acquired property of defendant no.1. Defendants
admitted that, properties situted within the jurisdiction of Pune are
ancestral properties and they are ready to give share of plaintiffs in it.
However, it is submitted that, plaintiffs are not entitled to claim any
right and share, or interest in the suit room.
4. It is further contention of defendants no.1 to 3 that, the
defendant no.4 has filed Civil Suit before Civil Judge, Junior.
Division, Bhor bearing RCS NO. 251/2006, against plaintiffs and
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defendants in respect of ancestral properties situated at Pune. In that
suit, there is no mentioned of suit room, which clearly shows that it is
the self acquired property of defendant no.1 and not the ancestral
property of plaintiffs and defendants.
5. It is further contention of defendants that, the defendant
no.1 has purchased suit room from his own income. However,
plaintiffs has supressed this material fact from this court and has
approached without clean hands. Hence, notice of motion, may
kindly be dismissed.
6. Plaintiffs filed rejoinder to the reply of defendants and
denied that suit room is self acquired property of defendant no. 1. It
is contention of plaitiffs that, defendant no.4 intentionally did not
mentioned regarding the suit room. The suit at Bhor is lateron in
time hence needs to be stayed.
7. Heard the learned advocate for plaintiffs and defendants
at length. Perused the record.
8. Following points arise for my determination to which I
have recorded my findings with reasons as follows:
Sr.No. Points Determination
1. Whether plaintiffs have made out prima
facie case in their favour ?
Yes
2. Whether plaintiffs proved that, the
balance of convenience is lies in their
favour?
Yes
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4 Ord. in NM no 11742018 in Suit no.5597 of 2007
3. Whether plaintiffs prove that, irreparable
loss cause to them if the injunction is
refused in their favour?
Yes
4. Whether court reciever need to be
appointed?
No
5. What order ? As per final
order.
REASONS
As to points no. 1 to 4:
9. It is well established principal of law that to claim the
relief of temporary injunction, the plaintiff has to show that he has
prima facie case in his favour; balance of convenience lies in his
favour and if the injunction is refused to him then he would suffer
irreparable loss.
10. It is to be seen that, relation in between the parties are
not disputed. It is also not disputed that the property situated at Bhor
District, are ancestral properties of the plaintiffs and defendants.
However, defendants strongly opposed to the fact that the suit room
is an ancestral property. It is conended that it is a self acquired
proerty of defendant no.1. Therefore plaintiffs have no right title or
interest to claim share in the suit room. However, during the course
of argument it is admitted that plaintiffs are residing in suit room.
Defendants have not filed documents to substantiate their contentions
that suit room is the self acquired property of the defendant no.1.
Even otherwise looking to the facts and circumstances of the case, the
issue whether the suit room, is self acquired property of defendant
no.1 is or not is to be decided on merits. It is further submitted that
the suit filed before the Civil Judge Junior Division at Bhor was
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withdrawn by the defendant no.4. Thus, looking to the fact that
plaintiffs are residing in the suit room and they are claiming partition
in the entire suit properties, in my view till disposal of the suit if third
party interest is created then it will create multipliclity of
proceedings.
11. Admittedly, plaintiffs are in possession of suit room
therefore if the plaintiffs are dispossessed then naturally they will
suffer irreparable loss. Thus looking to the facts and circumstances of
the case, the plaintiffs made out prima facie case and balance of
convenience in their favour. So far as the appointment of receiver is
concerned, there is no emminent danger or threats to the property.
Hence, question of appointment of receiver does not arise. Hence
my answer to points no.1 to 3 is in affirmative and to point no.4 is in
negative.
As to point no.5:
12. In view of my above discussions, I pass following order:
ORDER
Notice of motion no. 1174/2018 is partly allowed.
Defendants are restrained by an order of temporary
injunction from creating third party interest in suit property till
disposal of suit on merits.
Defendants are restrained from dispossessing the plaintiff
from suit room, which is well described in plaint, without following
due procedure of law.
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Cost in cause.
Notice of motion is disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 12.08.2022 (C.R. No.1)
Dictated on : 12.08.2022
Transcribed on : 17.08.2022
Signed on :
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7 Ord. in NM no 11742018 in Suit no.5597 of 2007
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 19.08.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 12.08.2022
JUDGMENT/ORDER signed by P.O. on 19.08.2922
JUDGEMENT/ORDER uploaded on 19.08.2022
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