Final Order 1

Order Details: Notice of Motion
Pdf Text: N. M. No. 1439/2019 Order
MHCC010037612019 Presented on : 03.04.2019
Registered on : 03.04.2019
Decided on : 04.09.2025
Duration : 06 05 01
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT BOMBAY
NOTICE OF MOTION NO. 1439/2019
(CNR NO. MHCC010037612019)
IN
SHORT CAUSE SUIT NO. 842/2019
Mr. Ahmed Yusuk Turk,
Aged 42 years, Indian Inhabitant of Mumbai,
residing at 1 – A, Ground floor, Shirin Manzil,
Walton Road, Electric House, Mumbai 400039. … Plaintiff
Versus
1 Nasreen Yusuf Turk,
Aged 66 years (deleted since deceased)
2 Masooda Ashraf Majal,
Aged: 43 years
3 Rahmath Raj Tapal,
Aged: 40 years
4 Rahim Yusuf Turk,
Aged: 38 years
All Indian Inhabitants of Mumbai,
residing at Flat No.5, Kuvar House, S. B. S. Road,
Opp. Sasson Dock, Colaba, Mumbai - 400005. … Defendants
CORAM : HIS HONOUR JUDGE, A. C. DAGA
: COURT ROOM NO. 61
DATE : 04.09.2025
Appearances: -
Adv. Harish Pawar for Plaintiff.
Adv. Anuja Apte for Defendants No.1 and 2.
ORDER
(Dictated and pronounced in open Court)
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Instant Notice of Motion is moved by the Plaintiff praying
for restraining the Defendants or any person claiming through them
from creating third party right or interest in the suit Office No.1A,
admeasuring about 160 sq. feet carpet area situated at Ground Floor, 3
Shirin Manzil, Oliver Road, Electric House, Mumbai - 400001. It is
pleaded in the Notice of Motion that the Plaintiff is tenant and was
holding possession over the suit Office. Defendants forcibly dispossessed
the Plaintiff from it, resulting into filing of instant Notice of Motion. The
intentions of Defendants are cleared to deprive the office rights of
Plaintiff. The Defendants are likely to dispose of and intend to sell the
suit Office by depriving the right and claim of the Plaintiff. The Plaintiff
was using the suit premises/Office. Therefore, the Notice of Motion.
2. The Defendants No.1 and 2 contested it by filing Reply and
have denied each and every adverse plea raised in the Notice of Motion.
Defendants pleaded that balance of convenience lies in favour of
Defendants No.1 and 2. The Plaintiff has not come in the Court with
clean hands. Plaintiff has filed fabricated and unsigned documents in
order to deprive Defendants No.1 and 2 of their rightful property.
Defendants have also pleaded that their father Yusuf Turk died on
17.10.2005. Mother died on 09.11.2019. The Plaintiff and Defendant
No.3 each are having 2/6 undivided share in the suit property/Office
whereas Defendants No.1 and 2 are having 1/6 undivided share in it.
The Plaintiff alone made application to B.E.S.T. for transferring the
electrical meter in his name without permission of the owners of the
garage as well as without there being any Succession Certificate or
permission. By making payment to the B.E.S.T. it does not make Plaintiff
owner of the garage property i.e. the suit property/Office. The father,
during his lifetime had given the suit property, i.e. 10 rooms, reception,
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passage, bathroom and garage to Defendants No.1 and 2. The Plaintiff
was harassing Defendants No.1 and 2 and tried to forcibly evict them
from their father’s property. From time to time, reports were given to
the police against the illegal acts of Plaintiff and other Defendants. It is
the conduct of the Plaintiff which goes to show that Plaintiff wants to
throw away Defendants No.1 and 2 from the suit property/Office.
Hence, prayed for rejection.
3. Heard both sides.
4. Considering rival pleadings, following Points arise for my
determination and I have recorded my findings against each of them for
the reasons given below: -
Sr.
No. Points Findings
1 Whether Plaintiff has made out prima-facie
case? :: Yes.
2 Whether balance of convenience lies in
favour of Plaintiff? :: Yes.
3 Whether irreparable loss will be caused to
the Plaintiff in case injunction as prayed is
not granted?
::
Yes.
4 What Order?
::
Notice of Motion
is made absolute
as per final
Order.
REASONS
As to Points No. 1 to 3: -
5. During arguments, the Ld. Advocate for the Plaintiff
submitted that, Suit is filed under Section 6 of the Specific Relief Act,
1963. Other Defendants have not filed their Reply. Accordingly, the
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instant Notice of Motion proceeded without their Reply. He has invited
attention to the documents filed along with the plaint of which
Document marked as (Exh.A) is Rent Receipts. (Exh.B) is Electricity
Bills and (Exh.C) is Telephone Bills. Relying on all these documents, the
Ld. Advocate for Plaintiff submitted that, these documents clearly goes
to show about possession of the Plaintiff over the suit property/Office
and the fact that Plaintiff is tenant of it. During further arguments, Ld.
Advocate for Plaintiff submitted that, the Defendants have forcibly
dispossessed Plaintiff from the suit property/Office and there is
apprehension in the mind of Plaintiff that they will create third party
right or interest in it. Hence, the Notice of Motion.
6. The Ld. Advocate for Defendants submitted that already
Court Receiver is appointed and the suit property/Office is in possession
of Court Receiver in the other suits filed between the parties. He has
submitted that as already possession of the suit property/Office is with
Court Receiver then how third party right can be created. The Advocate
for Plaintiff pointed out that the suit in which Court Receiver was
appointed has been dismissed and as such there is no Court Receiver.
Now, Chamber Summons is pending for restoration of said Suit.
7. Considering the fact that, the suit in which the Court
Receiver was appointed has been dismissed. Therefore, I have to
proceed further on assumption that the possession of the suit property is
not with the Court Receiver as on today.
8. It is the claim of Defendants No.1 and 2 that the Plaintiff
has created fabricated documents with an intention to grab the suit
property/Office. On the other hand, it is the claim of the Plaintiff that
he is tenant and was holding possession, but was dispossessed by
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Defendants No.1 and 2. It is important to note that the father of the
Plaintiff and Defendants No.1 and 2 died on 17.10.2005. First Rent
Receipt which is on record filed by the Plaintiff is dated 01.02.2002 that
is during lifetime of the father of Plaintiff and Defendants. The
Electricity Bills and Telephone Bills are after the date of the death of the
father of the parties. At this juncture, it is not possible for me to decide
as to whether the documents produced by the Plaintiff on record are
forged and have been created behind the back of the Defendants for
which appropriate evidence is required to be led by the parties. At this
juncture, prima-facie from the documents (Exh.A, B and C) filed along
with the plaint, it appears that the Plaintiff was holding possession over
the suit property. The apprehension of the Plaintiff that the Defendants
might create third party right in the suit property/Office, gets
foundation from the fact that immediately prior to filing of the suit as
per Plaintiff the Defendants have dispossessed him from the suit
property. Therefore, Plaintiff has made out prima-facie case. Balance of
convenience lies in favour of Plaintiff. No irreparable loss will be caused
to the Defendants in case injunction as prayed is granted. Accordingly, I
answer Points No.1 to 3 in the affirmative.
As to Point No. 4: -
9. Having answered all the Points in summons substance, I
pass the following Order: -
ORDER
1. Notice of Motion is made absolute in terms of prayer Clause (a).
2. The Defendants or any person/persons claiming through them by
way of temporary mandatory injunction are restrained from
creating any third party right or interest in the suit Office No.1A,
admeasuring about 160 sq. feet carpet area situated at Ground
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Floor, 3 Shirin Manzil, Oliver Road, Electric House, Mumbai -
400001 till disposal of the Suit.
3. Accordingly, Notice of Motion No. 1439/2019 stands disposed off.
DATE: - 04.09.2025 (A. C. DAGA)
JUDGE, CITY CIVIL COURT,
GR. MUMBAI.
Dictated on : 04.09.2025
Transcribed on : 04.09.2025
Checked on : 04.09.2025
Signed on : 04.09.2025
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER"
DATE: 04.09.2025, AT 05.45 P. M. Siddhesh S. Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court no.) : SHRI A. C. DAGA, (C. R. NO.
61)
Date of pronouncement of
Judgment/Order : 04.09.2025
Judgment/Order signed by the P. O.
on : 04.09.2025
Judgment/Order uploaded on : 04.09.2025
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