Final Order 1

Order Details: Notice of Motion
Pdf Text: N. M. No.2033/2019 Order
MHCC010056422019 Presented on : 10.06.2019
Registered on : 10.06.2019
Decided on : 27.10.2025
Duration : 06 04 17
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT BOMBAY
NOTICE OF MOTION NO.2033/2019
(CNR NO. MHCC010056422019)
IN
SHORT CAUSE SUIT NO.1102/2019
Nilesh Rameshchandra Fruitwala … Plaintiff
Versus
Jayshree Rameshchandra Fruitwala and
others … Defendants
CORAM : HIS HONOUR JUDGE, A. C. DAGA
: COURT ROOM NO. 61
DATE : 27.10.2025
Appearances: -
Adv. Hemen Thakkar for Plaintiff.
Adv. M. S. Singh for Defendants No.1, 3 and 4.
Adv. S. S. Redekar for Defendants No.5 and 6.
ORDER
(Dictated and pronounced in open Court)
The instant Notice of Motion is moved by the Plaintiff for
the purpose of injunction restraining the Defendants from disturbing
peaceful possession of the Plaintiff over the suit property as well as for
directing the Defendants No.1 to 4 to produce an original affidavit
dated 21.02.2002 and for restraining the Defendant No.7 from further
transferring or notifying transfer of suit property.
2. Defendants No.1 to 4 contested the Notice of Motion by
filing Reply and have adopted the pleadings made in the Written
-- 1 of 6 --
N. M. No.2033/2019 ... 2 … Order
Statement. Defendants No. 1 to 4 in the Written Statement have
pleaded that the suit flat was acquired by Plaintiff’s father in the year
1972 and after his death on 26.10.2003 and upon making proper
representation, Share Certificates have been transferred into the name
of Defendant No.1, who by registered Sale Deed dated 10.01.2018 has
already sold suit flat to Defendants No.5 and 6 for valuable
consideration. Defendant No.1 was the existing sole owner of the suit
flat. Plaintiff is not legally entitled to claim any reliefs and shares in the
suit flat. The possession was joint of the parties and not exclusive
possession of the Plaintiff. Accordingly, Plaintiff is not entitled for any
relief.
3. Heard both sides. During arguments, suit is for cancellation
of the Agreement for Sale dated 10.01.2018 executed by Defendants
No.1 to 4 in favour of Defendants No.5 and 6. Defendants No.1 to 4 are
legal heirs of the original owner along with Plaintiff, but they sold it
without knowledge of the Plaintiff and are trying to dispossess the
Plaintiff. The issue of Court fees and valuation has already been dealt
with by this Court while passing interim Order dated 04th May 2019.
Hence, the Ld. Advocate for Plaintiff further submitted that on
06.04.2019, an attempt was made to dispossess the Plaintiff. Therefore,
prayed for allowing the Notice of Motion.
4. The Ld. Advocate for Defendants No.5 and 6, during
arguments, submitted that if Plaintiff wants possession, then let him be
put in possession, but the Plaintiff should be directed to deposit
occupancy charges of Rs.75,000/- to Rs.90,000/- per month in Court
and if he succeeds, in the Court, he can get it back. The Ld. Advocate
for Defendants No.5 and 6 also submitted that Court fees has not been
properly paid and prayed for rejection.
-- 2 of 6 --
N. M. No.2033/2019 ... 3 … Order
5. I have carefully gone through the whole record, it appears
that the Plaintiff is claiming to be in possession of the suit flat since
after the death of his father. As on today, it is an admitted position on
record that the Defendants No.1 to 4 sold the suit flat to Defendants
No.5 and 6 by virtue of the Agreement for Sale dated 10.01.2018. It is
the claim of Plaintiff that on 06.04.2019, the unauthorized persons of
Defendants No.5 and 6 approached Plaintiff and asked Plaintiff to
vacate the premises within 15 days and hand it over to Defendants No.5
and 6. Accordingly, there is apprehension in the mind of Plaintiff that
the Defendants might forcefully dispossess the Plaintiff from the suit
premises.
6. As per the Defendants, the suit premise was owned by the
father of the Plaintiff. Accordingly, prima-facie it appears that the
Plaintiff and Defendants No.1 to 4 prima-facie appear to be joint owner
of the suit premises still Defendants No.1 to 4 sold it to Defendants No.5
and 6 resulting into instant suit.
7. It is important to note that the present Defendants No.1 to
4 in Notice of Motion No.884/2024 in which there is a document
(Exh.B) wherein the Defendant No.1 while making complaint to the
police against the Plaintiff has specifically mentioned that when she
reached the suit flat it was locked. She called Plaintiff. Plaintiff gave
threat and asked her to go away and did not allow her to enter into the
suit flat. This document itself goes to prima-facie show that the suit flat
is in the possession of the Plaintiff and was not in joint possession of
Plaintiff and Defendants No.1 to 4.
8. Considering the fact that the Defendants No.1 to 4 sold the
suit flat to Defendants No.5 and 6 and now Defendants No.5 and 6 are
-- 3 of 6 --
N. M. No.2033/2019 ... 4 … Order
trying to take possession. Therefore, naturally, for taking possession
they will have to dispossess the Plaintiff. Accordingly, Defendants are
required to be restrained from dispossessing the Plaintiff from the suit
flat. Accordingly, Plaintiff has made out a prima-facie case. The balance
of convenience lies in favour of the Plaintiff. Irreparable loss will be
caused to the Plaintiff in case the injunction as prayed is not granted.
9. So far as direction for producing the affidavit dated
21.02.2002 is concerned, no pleadings as to why such documents are
required. Therefore, no such directions at this juncture can be issued. So
far as notifying Defendant No.7 from transferring, etc. is concerned,
Defendant No.7 has only acted on the basis of registered documents and
has not done any illegal act. Therefore, no such injunction Order can be
passed against Defendant No.7 as prayed.
10. So far as the question of proper Court fees and valuation of
the suit is concerned, that cannot be decided in the instant Notice of
Motion. At the most, the Notice of Motion can be allowed or rejected. If,
at all, the Defendants want that the point of valuation and Court fees
required to be adjudicated, they are required to be applied separately
and then only the same can be taken into consideration. Accordingly, I
pass the following Order: -
ORDER
1. Notice of Motion is partly allowed.
2. Defendants No.1 to 6 or any person/persons claiming through
them by way of temporary injunction are restrained from
dispossessing or disturbing peaceful possession of the Plaintiff in
respect of the suit premises i.e. Flat No.603, Jewellers Niketan
C.H.S. Ltd., 6th Floor, 56 Pedder Road, Mumbai - 400026 till
disposal of the suit.
-- 4 of 6 --
N. M. No.2033/2019 ... 5 … Order
3. Accordingly, Notice of Motion No.2033/2019 stands disposed off.
DATE: - 27.10.2025 (A. C. DAGA)
JUDGE, CITY CIVIL COURT,
GR. MUMBAI.
Dictated on : 27.10.2025
Transcribed on : 27.10.2025
Checked on : 27.10.2025
Signed on : 27.10.2025
-- 5 of 6 --
N. M. No.2033/2019 ... 6 … Order
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER"
DATE: 29.10.2025, AT 04.02 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 : 27.10.2025
Judgment/Order signed by the P. O.
on : 27.10.2025
Judgment/Order uploaded on : 29.10.2025
-- 6 of 6 --