Final Order 1

Order Details: Notice of Motion
Pdf Text: Order ..1..
MHCC010050362019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1779/2019
IN
S.C.SUIT NO. 2490 OF 2019
Mr. Gautam Laxman Sakpal. .. Plaintiff.
Versus
Mr. Anil Laxman Sakpal. .. Defendant.
Advocates.
S.A. Shaikh for the plaintiff.
Usha Thakur for the defendant.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(Court No.: 2)
DATED : 11th November, 2021.
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of the plaintiff for grant of temporary injunction to restrain the
defendant from dispossessing the plaintiff from the suit premises i.e.,
Flat No.B/42, Taj Mahal Hotel Employees C.H.S. Ltd., situated at 1st
Floor, Pais Street, Jacob Circle, Byculla West, Mumbai 400 011 without
following due process of law and further to restrain the defendant from
creating third party interest in the suit premises.
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Order ..2..
2. Defendant opposed the notice of motion by filing written
statement cum reply. Perused the plaint, documents and written
statement cum reply.
3. Undisputed facts as appears from the record is that Laxman
Sakpal, father of the plaintiff and defendant died intestate on
30.01.1992 leaving behind four sons namely (i) Sanjay Sakpal who
expired on 30.12.1998, (ii) Nathuram Sakpal who expired on
05.04.2004, (iii) Gautam Sakpal, plaintiff and (iv) Anil Sakpal,
defendant. Suit premises belongs to father of the parties. Mother of the
plaintiff also expired on 12.04.1995. Defendant and plaintiff are real
brothers and they are residing in the suit premises.
4. Plaintiff's case is that the defendant created false documents by
forging signatures of the plaintiff and other brothers and given to the
society to transfer the suit premises in his name to which plaintiff taken
objection. However the society without making any inquiry, transferred
maintenance receipts in the name of the defendant. On the letter dated
05.10.2007 of the plaintiff, the society issued letter dated 14.03.2008 to
the defendant calling him to visit the society within 7 days alongwith
documents. Defendant is threatening the plaintiff to dispossess from the
suit premises and to transfer suit premises. On 22.04.2019, defendant
brought one of the customer to purchase the suit premises. Defendant is
not the exclusive owner of the suit premises. Plaintiff has ¼ share in the
suit premises. On 13.05.2019, the plaintiff lodged report of forgery
against the defendant. Under the circumstances, plaintiff apprehends
that the defendant will dispossess him without following due process of
law and create third party interest in the suit premises. Hence plaintiff
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filed this suit for declaration and permanent injunction. Plaintiff also
filed present notice of motion for grant of temporary injunction.
5. Contention of the defendant is that his father during his life time
had given each of his sons their respective shares in the property in the
form of cash or in kinds. Accordingly plaintiff was paid amount in cash
as well as he was also put in a job in Taj Hotel. Similarly suit flat was
given to the defendant as per last wish of his father. All other brothers
including the plaintiff executed necessary documents in the year 2000
for transferring the suit flat in the name of defendant. Plaintiff
suppressed material facts from the Court to suit his case. Suit is bad for
non-joinder of necessary party. Hence prayed for dismissal of notice of
motion.
6. As per Order 39, Rule 1 of the C.P.C., the Court may by order
grant temporary injunction to restrain the defendant from alienating the
suit property or dispossessing the plaintiff from the suit premises. It is
well settled that property in dispute in a suit is to be protected till
decision of the suit.
7. Case of the defendant is that plaintiff and other brothers executed
documents in favour of the defendant for transfer of the suit flat in his
name. However case of the plaintiff is that defendant forged the
documents and the suit premises is not partitioned till date. Other
contentions/defences raised by the defendant in the written statement
is not material to decide the present notice of motion. Considering the
contentions of the parties, this Court granted ad-interim reliefs in terms
of prayer clause (a) and (b) of the notice of motion.
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8. It is a matter of trial whether the defendant is the sole owner of
premises by virtue of documents or whether said documents are forged.
Plaintiff apprehends dispossession at the hands of plaintiff and
alienation of the suit premises by the defendant. Contention of the
defendant that he is sole owner of the suit premises by virtue of alleged
documents itself shows that he may transfer or alienate the suit
premises or dispossess the plaintiff on the basis of said documents.
9. Under the facts, circumstances and documentary evidence on the
record, prima facie is made out in favour of the plaintiff and against the
defendant for grant of temporary injunction in terms of prayer clause
(a) and (b) of the notice of motion. Hence irreparable loss would be
caused to the plaintiff if the defendant dispossesses him from the suit
premises or alienate the suit premises. Balance of convenience also lies
in favour of the plaintiff as the plaintiff is residing in the suit premises
alongwith his family. In the result, notice of motion is liable to be made
absolute in terms of prayer clause (a) and (b). Hence following order.
ORDER
1. Notice of Motion No. 1779 of 2019 is allowed and made absolute
in terms of prayer clause (a) and (b).
2. No order as to costs.
3. Notice of Motion No. 1779 of 2019 is disposed of.
(Sunil T. Soor)
Judge
Date : 11.11.2021 City Civil Court, Gr. Mumbai.
Typed on : 11.11.2021
HHJ signed on : 11.11.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.11.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
11.11.2021
JUDGMENT/ORDER signed by P.O.
on
11.11.2021
JUDGMENT/ORDER uploaded on 11.11.2021
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