Order 1

Order Details: Notice of Motion
Pdf Text: N.M.No.2232 of 2018 Order
MHCC010072262018 Presented on : 18.06.2018
Registered on : 18.06.2018
Decided on : 02.09.2024
Duration : 06 02 14
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
NOTICE OF MOTION NO.2232 OF 2018
IN
SHORT CAUSE SUIT NO.6468 OF 2018
(CNR NO.MHCC010072262018)
1 Nitin Nilkanth Rajeshirke,
Age 31 years, Occ: Business,
Residing at Room No.8, ‘J’ Chawl, D’souza
Compound, Tunga Village, Sunder Nagar,
Sakinaka, Powai, Mumbai - 400072.
2 Mrs. Manisha Manoj Surve,
Age 37 years, Occ: Housewife,
Room No.11, Sukh Sagar Society, Pushpa Park,
Malad (East), Mumbai 400097.
3 Mrs. Swapnali Saiprasad Gawde,
Age 29 years, Occ: Housewife,
Room No.417, Jai Hanuman Housing Society,
Maniklal Estate, Ghatkopar (West), Mumbai
400086. ... Plaintiffs
Versus
1 Mrs. Sharda Jijaba Gujar
Age: 75 years, Occ: Housewife,
Residing at Fozdarwdi, Mukam/Post: Dervan,
Sawarda, Taluka: Chiplun, Dist. Ratnagiri
2 Mr. Suresh Jijaba Gujar,
Age: 58 years, Occ: Service,
Residing at Flat No.701, 7th Floor, B-Wing,
Prakashgadh CHS, D. N. Nagar, Andheri
(West), Mumbai 400058.
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N. M. No.2232 of 2018 ... 2 … Order
3 Mr. Madhav Jijaba Gujar
Age: 55 years, Occ: Farmer,
Residing at Fozdarwdi, Mukam/Post: Dervan,
Sawarda, Taluka: Chiplun, Dist. Ratnagiri.
4 Mr. Sandeep Jijaba Gujar
Age: 54 years, Occ: Service,
Residing at Pulkit Building, Opp, K. P. Garden,
Near Valia College, Ganesh Chowk, D. N.
Nagar, Andheri (West), Mumbai 400058.
5 Mr. Akshay Suresh More,
Age: 29 years, Occ: not known,
Presently residing at Room No.16, G. T.
Hospital, Government Quarters, Mumbai
400002. … Defendants
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 02.09.2024
Appearances: -
Adv. Sagar Batavia for plaintiffs.
Adv. Sunita Perumal for defendants No.1 to 4.
Adv. Yash Lodh for defendant No.5.
ORDER
(Dictated and pronounced in open Court)
This Notice of Motion is taken out by the plaintiffs.
2. Heard their Adv. Mr. Sagar Batavia. He submitted that
after filing this Notice of Motion, plaintiffs came to know that the
defendants No.2 to 4 have sold out the Suit flat to defendant No.5
and accordingly he is in possession. The Suit is for cancellation of
Sale Deed dated 06th January, 2018. The defendants No.2 to 4
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N. M. No.2232 of 2018 ... 3 … Order
have already created third party interest in the Suit property and if
the defendant No.5 again creates further third party rights then it
would create complications. To avoid multiplicity of proceedings,
he prayed that the defendant No.5 may be temporarily restrained
till the decision of the Suit from creating any third party interest in
the Suit flat.
3. Adv. Mr. Sagar Batavia brought to the notice of the
Court the roznama dated 3rd September, 2018 wherein advocate of
defendant No.5 made a statement that the defendant No.5 do not
intend to create third party interest in the Suit flat.
4. Adv. Sunita Perumal for defendants No.1 to 4
submitted at bar that the defendants No.1 to 4 have sold out the
Suit flat to defendant No.5 and he is already in possession.
Therefore, this Notice of Motion as against the defendants No.1 to
4 has become infructuous.
5. Advocate for defendant No.5 Mr. Yash Lodh also
submitted at bar that as on today, defendant No.5 is in possession
of the Suit flat. However, he has objection for any interim order
against defendant No.5 as he has purchased the Suit flat by way of
registered sale deed by paying consideration.
6. Following Points arise for my determination and I
record my findings against each of them for the reasons given
below:-
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N. M. No.2232 of 2018 ... 4 … Order
Sr.
No. Points Findings
1 Whether plaintiffs have made out the
prima-facie case? :: Partly Yes.
2 In whose favour the balance of
convenience lies? :: Partly in favour
of plaintiffs.
3 To whom an irreparable loss would be
caused in case the temporary
injunction is granted or refused?
::
Partly to the
plaintiffs,
if temporary
injunction is not
granted in their
favour.
4 Whether plaintiff is entitled for
temporary injunction as prayed? :: Partly Yes.
5 What order? :: Notice of Motion
is partly allowed
as per final order.
REASONS
Points No.1 to 4: -
7. From the submissions made by the advocates of both
the parties at bar, the position as on today is very clear that the
defendants No.1 to 4 have sold out the Suit flat to defendant No.5
and accordingly he is in possession. The Suit is for cancellation of
sale deed in question.
8. If in the meantime, defendant No.5 again sells the Suit
flat to somebody else and creates third party interest therein then
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N. M. No.2232 of 2018 ... 5 … Order
it would create further complications. It would pose to create
multiplicity of proceedings.
9. To restrict the parties to single litigation, it is necessary
to pass interim order of temporary injunction against the
defendant No.5 restraining him from creating any third party
rights in the Suit flat. However, this particular relief sought against
the defendants No.1 to 4 has become infructuous as they have
already sold out the Suit flat to defendant No.5 and have parted
with its possession. In the result, I answer Points No.1 and 4 partly
in the affirmative and Points No.2 and 3 accordingly.
Point No.5: -
10. In view of my partly affirmative findings to Point Nos.1
and 4 and findings accordingly to Points No.2 and 3, the Notice of
Motion deserves to be partly allowed. Hence the following order:-
ORDER
1. Notice of Motion No.2232 of 2018 is partly allowed.
2. Pending the hearing and final disposal of the Suit, the
defendant No.5 is temporarily restrained from creating any
third party rights, title or interest in the Suit flat in any
manner.
3. Costs in the cause.
4. Accordingly, Notice of Motion No.2232 of 2018 stands
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N. M. No.2232 of 2018 ... 6 … Order
disposed off.
DATE:- 02.09.2024 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 02.09.2024
Transcribed on : 02.09.2024
Checked on : 02.09.2024
Signed on : 02.09.2024
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N. M. No.2232 of 2018 ... 7 … Order
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 03.09.2024, AT 01.00 P. M. Mr. Siddhesh Shankar Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
no.)
: SHRI R. D. DESHPANDE
C.R.NO.61.
Date of pronouncement of
Judgment/order
: 02.09.2024
Judgment/order signed by the P. O.
on
: 02.09.2024
Judgment/order uploaded on : 03.09.2024
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