Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1532/2020 ..1.. L.C. Suit No.478/2021
MHCC01-004651-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1532 OF 2020
(CNR NO. : MHCC01-004651-2020)
IN
L.C. SUIT NO. 478 OF 2021
(CNR NO. : MHCC01-004256-2020)
1. Mr. Irshad Faiyaz Khan )
Aged : 35 year Occ : )
2. Irfan Faiyaz Khan )
Aged 32 year Occ : )
3. Mr. Fulfan Faiyaz Khan )
Aged : 30 year Occ : )
All residing at Room No.142, )
Gulshan Chawl Social Nagar )
Near Maula Ali Shah Dargah, )
90 feet Road, Dharavi, )
Mumbai – 400 017 )....Plaintiffs
V/s.
1. Mrs. Shama Faiyaz Khan )
Aged : adult Occ : Housewife )
2. Master Asad Faiyaz Khan )
Aged : Minor Occ : )
(Through legal guardian her mother )
of Mrs. Shama Faiyaz Khan) )
Both residing at Room No.217 3/3 )
Santoshi Chawl, Social Nagar, 90 feet)
Road, Dharavi, Mumbai – 400 017. )
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3. The Municipal Corporation of )
Greater Mumbai Through its office )
at G/North Near Plaza Theater, )
Dadar (W) )....Defendants
APPEARANCE:-
Ld. Adv. Mr. Mohd. Moin Khan for the plaintiffs.
Ld. Adv. Mrs. Meena Dhuri h/f Adv. Sutar for the defendants/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 16th FEBRUARY, 2021.
O R D E R
Plaintiff has taken out this notice of motion to restrain
defendants No.1 and 2 from disposing of or creating third party interest
in suit premises namely Room No.217 3/3, Santoshi Chawl, Social
Nagar, 90 Feet Road, Dharavi, Mumbai Maharashtra - 400 017 and
Room No.422, Ward No.6, Mohbbat Khani Mohalla, Village- Hardauli,
Tehsil Baberu, Zila Bandha, Uttar Pradesh and to restrain defendant
No.3 from transferring or creating any document in respect of suit
premises.
2. Defendant No.1 and 2 have refused the service. Therefore,
service on them is deemed service. Defendant No.3 BMC had appeared
through officer Pratidnya Hiraman Bharti, Colony officer on
27.10.2020. After having discussion, the aforesaid officer had made
statement that in case if any application for transfering the tenancy in
the name of defendant No.1 and 2 is made before BMC, the present
plaintiff will be given opportunity to put up his case and be heard.
3. Upon aforesaid statement being made, both learned
advocate for plaintiff and defendant BMC conceded to dispose of the
notice of motion in terms of aforesaid statement of officer of BMC.
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However, on that day the court was busy in urgent precipe matters and
therefore the matter was posted for orders.
4. Learned advocate for plaintiff had also argued for ad-
interim orders against defendant No.1 and 2 in terms of prayer clause
(a) and (b) of notice of motion. He relied upon the observations in case
of
Harmesh Kumar Jain V/s. Ravinder Kumar Jain and others in case
No. C.R. No.5817 of 2012 (P & H) decided on 01.10.2012.
5. As regards the legal position with respect to Sec.17 of CPC
there cannot be any doubt that when a suit is to obtain relief respecting
to immovable property situate within the jurisdiction of different courts,
plaintiff can file suit in any court within the local limits of whose
jurisdiction any portion of the property is situate. Defendant No.1 and 2
have refused to appear. Plaintiff is claiming apprehension of disposal of
the suit premises at the hands of defendant No.1 and 2.
6. The defendants No.1 and 2 are stepmother and minor
stepbrother of plaintiff. According to plaintiff, the relations between
them are not cordial. Defendant No.1 for herself and minor guardian for
defendant No.2 has not taken pains to appear before court and deny the
theory of plaintiff. If as is apprehension of plaintiff, defendants dispose
of the suit premises, the whole purpose of filing of the notice of motion
will frustrate. If as is prayed, interim relief is granted, same will not
cause prejudice to defendants No.1 and 2. It is settled legal position as
on today that the status of the suit premises needs to be maintained in
same state till final decision of the suit so that parties can enjoy the
fruits of the result of the litigation. Therefore, there is no hurdle to
allow the notice of motion against defendants No.1 and 2 and dispose
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of the notice of motion against defendant No.3 in light of her statement
made on 27.10.2020. According, I proceed to pass following order -
ORDER
1. Notice of Motion No.1532/2020 is disposed of in terms of
statement made by the officer of defendant No.3 BMC dated
27.10.2020. Defendant No.3 shall give opportunity to plaintiffs
to put up their case and be heard if application if any, for transfer
of tenancy in the name of defendants No.1 and 2 is made before
their office.
2. Defendants No.1 and 2, their servants, agents, or any other
person claiming through them are hereby restrained by order of
temporary injunction from disposing of or creating third party
interest in suit premises - Room No.217 3/3, Santoshi Chawl,
Social Nagar, 90 Feet Road, Dharavi, Mumbai Maharashtra - 400
017 and Room No.422, Ward No.6, Mohbbat Khani Mohalla,
Village- Hardauli, Tehsil Baberu, Zila Bandha, Uttar Pradesh till
final decision of the suit.
3. Costs in cause
4. Notice of Motion No.1532/20 is accordingly disposed of.
(Smt C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 16.02.2021 City Civil Court, Gr. Bombay
Directly Dictated on Com :16.02.2021.
Checked on :17.02.2021.
Signed on :17.02.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 17.02.2021, 01.51 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
16.02.2021
JUDGMENT/ORDER signed by P.O.
on
17.02.2021
JUDGMENT/ORDER uploaded on 17.02.2021
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