Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2397/2019
MHCC010066222019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 2397 OF 2019
IN
SUIT NO. 1527 OF 2019
Mrs. Rukhsana Anwar Ibji ...Plaintiff
Vs.
Mrs. Rehana Kamil Ibji ...Defendant
Appearance
Mr. Ghadigaonkar, learned Advocate for the plaintiff.
None for the defendant.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 23rd February, 2023
O R D E R
This Notice of Motion is taken out by the plaintiff for the
following reliefs of interim injunction.
a) That pending the hearing and final disposal of the present suit,
the Court Receiver of this Hon'ble Court be appointed in
respect of the suit premises.
b) That pending the hearing and final disposal of the present suit,
the defendant be ordered to remove herself and her belongings
and bags and baggages from the said suit premises i.e. 9, Ali
Umer Street, 2nd Floor, Room No.5 Null Bazar, Mumbai, 400
023.
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c) That pending the hearing and final disposal of the present suit,
the defendant be restrained from creating any third party
interest in respect of said premises.
d) That adinterim and interim reliefs in terms of prayer clause
'a', 'b' and 'c' may kindly be granted in the interest of justice.
e) That order for costs of the suit.
f) For such and other reliefs as this Hon'ble Court may deem and
proper in the interest of justice and kindness.
2. This motion is proceeded without reply of the defendant.
3. Heard the learned advocate for the plaintiff. No argument
of the defendant. Points for determination along with my findings
thereon are as follows :
POINTS FINDINGS
1 Whether the plaintiffs have prima facie
case ?
Yes in respect of
prayer clause (c)
2 Whether the balance of convenience lies in
favour of the plaintiffs ?
Yes in respect of
prayer clause (c)
3 Whether the plaintiffs would suffer
irreparable loss, if injunction is not granted?
Yes, With respect to
prayer clause (c)
4 What order ? Notice of motion is
partly allowed.
AS TO POINT NOs. 1 TO 3 :
4. All these points are interlinked with each other hence, they
are taken together for consideration. It is the case of the plaintiff that
she is motherinlaw of the defendant. Room No.5, second floor,
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Building No.9, Ali Umer Street, Null Bazar, Mumbai, 400 023 is the suit
premises. The plaintiff's husband Mr. Anwar, was the original tenant of
the suit premises. After his death, tenancy of the suit premises is
transferred in favour of the plaintiff. Since 1978 i.e. since her marriage,
the plaintiff was residing at the suit premises. Presently the plaintiff is
residing with her son at Navi Mumbai. As the suit premises required
repairs and as Mumbai Building Repairs and Construction Board –
MHADA had issued letter dated 19.01.2013 for repair work of the suit
building, the occupants were required to vacate the suit building.
Therefore, in the month of May, 2014 the plaintiff and her family had
temporarily shifted to the plaintiff's son at Navi Mumbai, the suit
premises was kept locked.
5. It is further case of the plaintiff that till 28.02.2015 the
defendant along with plaintiff's another son Kamil was residing at Navi
Mumbai. The defendant used to raise quarrel with Kamil. Therefore, to
bring change in their life they were allowed to stay in the suit premises
from March, 2015. As repair work was not started and at the request of
Kamil, the plaintiff allowed Kamil and the defendant to reside in the
suit premises. Thereafter, there was no change in the attitude of the
defendant and therefore, she left the suit premises in the month of
April, 2015. The defendant wanted to extract money from the plaintiff
and Kamil. In the month of August, 2015 the defendant attempted to
break open and trespass in the suit premises, said attempt was failed.
On 14.12.2015, the plaintiff received telephonic message that one lady
is breaking open the lock of the suit premises. It was found that the
defendant had broken the lock of the suit premises. The plaintiff's elder
son lodged police complaint in that regard. By accepting the suggestion
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to settle the dispute amicably, the plaintiff at that time did not oppose
the defendant to stay in the suit premises. The repair work of the suit
building was completed in the month of October, 2017. The plaintiff
asked the defendant to vacate the suit premises, she requested for some
more time to arrange the alternate accommodation and to vacate the
suit premises. She also demanded money from the plaintiff. In the
month of December, 2018 there was meeting with the defendant to
settle the issue. Though the defendant agreed to vacate the suit
premises, she failed to vacate it. Hence, the plaintiff has filed this suit
for decree to recover the possession of the suit premises and therein by
filing this motion has prayed for interim relief of injunction.
6. Defendant has not filed reply.
7. Admittedly, the defendant is in possession of the suit
premises. The plaintiff by filing this suit wants to recover the possession
of the suit premises from the defendant. Therefore, the plaintiff has
sought final relief for the decree of possession. However, the plaintiff in
this motion by prayer clause (b) requested for interim relief directing
the defendant to remove herself with her belongings from the suit
premises. No such final relief can be granted at the interim stage. If
such relief is granted nothing will remain further to decide. Hence, in
my view, the relief to recover possession of the suit premises cannot be
granted by way of interim relief.
8. Admittedly, the defendant has not disputed about the
plaintiff's title to the suit premises. She is daughterinlaw of the
plaintiff, her stand at the most can be of shared house or matrimonial
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home. She is not the owner of the suit premises. She has only right to
reside unless evicted by due process of law. The defendant is not
entitled to create third party right in the suit premises. Hence, to protect
the subject matter of the suit premises and to avoid multiplicity of
litigation, the plaintiff's request to restrain the defendant from creating
third party right in the suit premises can be allowed. Therefore, in that
regard the plaintiff has prima facie case, balance of convenience lies in
favour of the plaintiff. If such relief is not granted, the plaintiffs will
suffer irreparable loss. Hence, I answer point Nos.1 to 3 accordingly and
only for the purpose of relief in terms of prayer clause (c).
AS TO POINT NO.4:
9. In view of my findings to point Nos.1 to 3, the notice of
motion is required to be allowed partly. Costs shall follow the event. In
the result, in answer to point No.4, I pass the following order.
ORDER
1. Notice of Motion No.2397/2019 is partly
allowed in terms of prayer clause (c).
2. Pending hearing and final disposal of the suit,
the defendant is restrained from creating
third party interest in respect of the suit
premises.
3. Costs shall follow the event.
Date :23/02/2023 (Rajesh A. Sasne)
Dictated on : 23/02/2023 Judge, C.R.No.62,
transcribed on : 27/02/2023. City Civil Court,
Signed on : 02/03/2023. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
02.03.2023 at 2.50 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 23/02/2023
Order signed by P.O. on 27/02/2023
Order uploaded on 02/03/2023
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