Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M 1624/2020 IN SU 5035/2004
1
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO.1624 OF 2020
(CNR NO.MHCC010050332020)
IN
L.C. SUIT NO.5035 OF 2004
(CNR NO.MHCC010033122004)
Mr. Amritlal Narshibhai Shah and Ors. ]... Plaintiff
Versus
M/s. Prince Enterprises and Ors. ]...Defendants
Adv Harish Pawar for plaintiff
None for defendant No.1 and 2.
Adv. Chetan Jaiswal for defendant No.3
Adv. Rawade for defendant No.4 / MCGM
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no. 4)
DATED : 22nd April, 2022.
O R A L O R D E R
1. The present Notice of Motion taken out by defendant No.3,
for restraining the plaintiff from transferring, alienating and creating
any third party rights in respect of their respective premises.
2. The contention of defendant No.3, that he is auction
purchaser of the plot of land admeasuring 870.16 sq.mtr., bearing
C.T.S. No.1491 (Part) corresponding to Survey No.41 (Part) together
with a building known as “Prince Tower” consisting of ground and 4
upper floors situated at Village : Kirol, L.B.S. Marg, Ghatkopar (w),
Mumbai 400 086.
3. The defendant No.3, has purchased the suit building by
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virtue of an auction sale certificate dated 27.05.2004 issued by
defendant No.4, in pursuance of public auction held on 09.03.2004 in
respect of the suit property. The defendant No.3, have acquired the
right, title and interest in the suit property. The defendant No.3, also
got permission to pay Municipal Taxes to defendant / MCGM. The suit
reached at the stage of evidence. The plaintiff may change the title of
the suit property so, as to hamper the trial. Therefore, it is necessary to
restrained the plaintiff from alienating the respective premises by
creating any third party rights in respect of their respective premises.
4. The plaintiff opposed the Notice of Motion by contending
that the plaintiff have purchased their respective flats on payment of
valuable consideration from defendant No.1 and 2. The plaintiffs are
bonafide purchaser and they are in possession of the respective flats on
ownership basis. The said facts are well within the knowledge of
defendant No.3. Therefore, defendant No.3, can not be landlord of the
plaintiff. It is further alleged by the plaintiff that defendant No.3, is
seeking same relief before different forum. Hence, prayed for rejection
of the Notice of Motion.
5. Perused Notice of Motion, reply filed by the plaintiff.
Heard both the advocates at length, following points arose for my
determination alongwith my findings on those points for the reasons
mentioned thereunder are as follows:
Sr.
No. POINTS FINDINGS
1. Whether defendant No.3 is entitled for
the injunction as prayed
In the Affirmative
2. What order ? Notice of Motion is
allowed
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R E A S O N S
AS TO POINTS NOS. 1 :
6. On going through the entire record it reveals that
defendant No.3, is claiming ownership over the suit property by virtue
of Auction sale held on 09.03.2004. On the other hand plaintiff also
claiming ownership over their respective flats. It is come on record that
defendant No.3, has filed R.A.E suit against various plaintiffs in the
Small Causes Court. The advocate for the plaintiff filed on record the
copy of temporary injunction application filed in RAE suit in Small
Causes Court Mumbai. The advocate for the plaintiff submitted that the
defendant No.3, is seeking same relief before various forums therefore,
he is not entitled for injunction as prayed. But in my opinion all suits
filed in Small Causes Court by defendant No.3, against various plaintiffs
in the year 2021. The plaintiff has not filed on record temporary
injunction application of the defendant No.3, which was rejected by any
court, after hearing both the parties. Therefore, in my opinion the
present application is tenable.
7. The advocate for the plaintiff submitted that injunction
sought by the defendant No.3, can not be granted as he has no right to
seek relief against plaintiffs. But Order 39 Rule1 of the Civil Procedure
Code clearly states that defendant can also filed application for
temporary injunction, restraining the plaintiff from alienating the suit
property. So, as to preserved the suit premises therefore, in my opinion
application filed by the defendant No.3, is tenable.
8. The plaintiff has filed the present suit for declaration that
public Auction held on 09.03.2004 is not binding on the plaintiff. Today
defendant No.3, is claiming ownership over the suit property by virtue
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of Action sale therefore, it clearly shows that the right, title and interest
of defendant No.3, is involved in the suit property. During, the course of
hearing the advocate for the defendant No.3, submitted that during the
pendency of the suit some plaintiffs have sold out their respective flats.
The advocate for defendant No.3, filed rejoinder and on affidavit
contended that there are about 10 instances of sale at the hands of the
plaintiffs where neither defendant No.3, permission has been obtained
by the plaintiff nor the Hon’ble court. Therefore, defendant no.3,
apprehends that the plaintiff may sale or further create third party
interest. So, in my opinion the apprehension of defendant No.3 is based
on reality and on solid grounds.
9. Therefore, in my opinion defendant No.3, is entitled for
injunction as prayed against the plaintiff so, as to preserve the suit
property. Hence, I answer issue No.1 in affirmative and accordingly pass
the following order :
ORDER
1. Prayer clause (a) of Notice of Motion No.1624 of 2020 in L.C.
Suit No.5035/2004 is allowed and made absolute.
2. The defendant / MCGM be restrained from alienating the suit
property or create any third party till disposal of the suit.
2. Notice of Motion No.1624 of 2020 in Suit No.5035/2004 is
disposed off accordingly.
(S.D.Kulkarni)
Adhoc Judge,
City Civil Court,
Date : 22.04.2022 Gr. Mumbai.
Dictated on : 22.04.2022
Transcribed on : 22.04.2022
Signed by HHJ on: 25.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.00 a.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D.Kulkarni
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
22.04.2022
JUDGMENT/ORDER signed by
P.O. on
25.04.2022
JUDGMENT/ORDER uploaded
on
05.05.2022
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