Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no.202019, in Suit no.133 of 2019
MHCC010055982019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.2020 OF 2019
IN
SUIT NO.133 OF 2019
Mrs. Zubaida Khatun Wd./o Late Ashfaq Ahmed
Maqbool Ahmed Khan ... Plaintiff
V/s
Mohd. Jama Mohd. Sadik Shaikh & Ors. …. Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE: 9th DAY OF FEBRUARY, 2023
: Appearances:
The learned Adv. R.S. Dubey for plaintiff.
The learned Adv. M.S. Singh for defendants
ORAL ORDER
Plaintiff has taken out present notice of motion for claiming
reliefs inter alia:
a) To restrain defendants from dealing with, disposing of,
alienating, or parting with possession or creating 3rd party right and
interests, of any nature, whatsoever in respect of suit premises;
b) To appoint Court Receiver to take possession of the suit premises
with direction to hand over actual physical possession of the suit
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2 Ord. in NM no.202019, in Suit no.133 of 2019
premises to the plaintiff.
c) to appoint Court Commissioner or any other fit persons to visit
and verify the existence and location of the suit premises of the plaintiff
on premises and of the defendants and to prepare and submit report
along with the rough sketch of suit premises and premises of defendant.
d) Defendant be ordered and directed to pay mesne profit from the
date of institution of suit till delivery of possession of the suit premises;
2. It is contention of the plaintiff that, defendants forcefully
took possession of the suit premises. Therefore, she has been
constrained to file suit under section 6 of the specific Relief Act for
restoration of possession and other reliefs. The plaintiff has taken out
notice of motion for claiming relief as stated supra. Hence, it be
allowed.
3. Defendants filed written statement (Exh.6) and prayed to
treated it as reply to notice of motion.
4. Defendants strongly opposed the notice of motion on the
ground that it is not maintainable for nonjoinder of necessary parties.
It is contended that, neither plaintiff nor deceased husband of the
plaintiff in any manner concerned with the suit premises. Defendants
are in possession of the suit premises since long. Plaintiff was never in
possession of the suit premises, hence taking of its illegal possession,
does nor arises. Notice of motion is being false and frivolous is liable to
be rejected.
5. Heard both the sites. Perused the record.
6. Following points arises for my consideration to which I
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3 Ord. in NM no.202019, in Suit no.133 of 2019
have recorded my findings with reasons as follows:
Sr.
No.
Points Determination
1. Whether the plaintiff is entitled
for the reliefs as claimed in
notice of motion?
Partly yes.
2. What order? As per final order.
REASONS
As to point no.1:
7. It is to be noted that, the plaintiff has filed the present
suit under section 6 of the Specific Relief Act for restoration of
possession alleging therein that defendants forcibly and illegally took
possession of suit premises on 15/05/2018.
8. The plaintiff came with the case that, her deceased
husband was lawfully seized, owned and occupied suit premises.
Defendants no.1 and 2 are residing in same vicinity of the plaintiff.
On the basis of Agreement to sale dated 15/06/1994, executed
between Mukadam Ali and the deceased husband of the plaintiff,
deceased husband of the plaintiff agreed to purchase the suit
premises. The owner of the suit premises had put her deceased
husband in possession of suit premises.
9. It is to be seen that; the plaintiff is seeking possession of
the suit premises on the basis of allegation that defendants were
taken its illegal possession. The plaintiff has to prove her own case
on merits i.e., by leading cogent evidence. At this juncture the
plaintiff is not entitled for the relief of appointment of Court receiver
thereby he be directed to take possession and handed over
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4 Ord. in NM no.202019, in Suit no.133 of 2019
possession of the suit premises to the plaintiff, during pendency of
the suit. By way of interim relief final relief cannot be granted. Even
Court receiver cannot be asked to collect evidence by going to the
suit spot. Even relief of paying mesne profit cannot be granted, at
interim stage. Therefore, the plaintiff is not entitled for all these
reliefs.
10. So far as relief of granting temporary injunction to
restrain defendants from creating third party interest in the suit
property is concerned, I am of the view that, during pendency of the
suit, the property needs to be protected to be transfer from one
person to another, so as to avoid multiplicity of litigations. Hence to
that extent only the plaintiff is succeeded. Hence my answer to point
no.1 is in partly affirmative.
As to point no.2:
11. In view of my above discussion, I Pass the following
order:
ORDER
Notice of motion no. 2020/19 came to be partly
allowed thereby defendants are restrained from creating third party
interest in respect of suit premises, till disposal of the suit.
Notice of motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.09.02.2023 (C.R. No.1)
Dictated on : 09.02.2023
Transcribed on : 09.02.2023
Checked & Signed on : 10.02.2023
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5 Ord. in NM no.202019, in Suit no.133 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 10.02.2023 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 09.02.2023
JUDGMENT/ORDER signed by P.O. on 10.02.2023
JUDGEMENT/ORDER uploaded on 10.02.2023
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