Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.2192 OF 2019
IN
S.C. SUIT NO.120 OF 2019
CNR NO.MHCCO10060852019
1. Mr.Shobhnath s/o Shri Asharam Jaiswal
and anr ..Plaintiffs
V/s
Bholanath Asharam Jaiswal/Gupta ..Defendant
Ld. advocate Mukesh Kumar Mishra for the plaintiffs
Ld. advocate Prashant Pashte for the defendant
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 10/07/2019
ORAL ORDER
1. The plaintiff has taken out notice of motion
restraining the defendant to sell, transfer, mortgage
or create third party right in respect of room
no.2517, building no.36, Sagar Co.Operative
Housing society, Abhyudaya nagar, Kalachowki,
Mumbai33(hereinafter referred to as the 'suit
premises')
2. The facts of the case are thatThe plaintiffs and
defendant are siblings. The suit premises was
acquired by their father from his own income. Their
father expired on 10/1/1998 leaving behalf plaintiffs
and defendant and their mother as legal heirs. Their
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mother expired on 19/06/2007. The plaintiff no.2
and defendant are residing in the suit premises. The
plaintiffs and defendant are having 1/3rd share each
in the suit premises. The defendant refused to give
1/3rd share to the plaintiffs and claims to have
exclusive right in the suit premises.
3. The defendant resisted the claim of the plaintiffs on
the count that there was no cause of action disclosed.
There is nothing to show the apprehension of the
plaintiffs. The suit is not for partition and therefore
badinlaw. The suit is also bad for non joinder of
necessary parties. The property is of MHADA. The
defendant has not seriously disputed the fact that the
suit premises was acquired by their father. He would
submit that the suit is filed as counter blast to the
demand of the share by the defendant in the joint
family property at the native place. He submitted
that he is in use, occupation and possession of the
suit premises as per the wish of his parents.
4. On the rival submissions of the parties, following
points arise for my determination and findings to it
are recorded for the reasons stated to follow:
POINTS
(i) Whether the plaintiffs have made out a prima
facie case?
(ii) Whether the balance of convenience lies in
favour of plaintiffs?
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(iii) To whom the irreparable loss would be
caused?
(iv) What order?
FINDINGS
(i) In the negative.
(ii) In the negative.
(iii) In the negative.
(iv) As per final order
REASONS
Point Nos. 1 to 3
5. At the outset from the pleadings of the parties, it
appears that suit premises was acquired by the
deceased father of the plaintiffs and defendant. The
main crux of the argument of the Ld. Counsel for the
plaintiffs is that the defendant with intention to grab
the suit premises has illegally placed his exclusive
name in various documents. They apprehend that he
would create third party interest. In para.10 of the
plaint the allegations are made to that effect that the
defendant threatened that he would sell the property.
The said threat appears to have given in the year
2018 but when it was given is not specified. There is
nothing to show that the defendant has created any
document in respect of the suit property to show his
exclusive ownership. The plaintiffs issued notice to
the society on 11/07/2015 wherein it is specifically
mentioned that the defendant is not ready to give the
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share and they are taking appropriate steps. It
appears that the dispute between the parties was
since long.
6. The argument is canvassed by the defendant that the
suit for partition has not been filed and therefore the
interim relief sought by the defendant cannot be
granted. At this stage, it would not be proper to hold
that the suit is not maintainable. On perusal of the
avernments in the plaint and the documents annexed
it is apparent that the dispute between plaintiff and
defendant is since the year 2015. There is nothing to
suggest that defendant ever made or attempted to
sell the suit property. There is no overact by the
defendant pointed out to suggest that the defendant
had entered into an agreement of sale of the suit
premises with any prospective purchaser. Even there
is no material to suggest that in record of rights
defendant mutated his name as owner of the suit
premises. Therefore, the apprehension of the
plaintiffs is not well founded. Merely the plaintiffs
are claiming that the defendant tried to sell the
property could not be the ground to grant the
injunction. Thus, the plaintiffs have not made out
any prima facie case. The needle of balance of
convenience does not tilt in favour of the plaintiffs.
Admittedly the defendant is in occupation of the suit
property since the time of his father and therefore no
irreparable loss would be caused to the plaintiffs.
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Thus, in view of the above discussion, I answer
point nos.1 to 3 in the negative.
POINT NO.4
7. In view of the foregoing reasons and findings to point
nos.1 to 3, the notice of motion needs no
consideration. Hence, it is expedient to pass
following order :
ORDER
1. Notice of Motion No.2192/2019 is rejected.
2. Cost in cause.
10/07/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 10/07/2019
Transcribed on : 14/07/2019
Signed on : 20/07/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
20/07/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
10/07/2019
Judgment and order signed by P.O. 20/07/2019
Judgment/order uploaded on 20/07/2019
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