Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2301-18 in Suit No. 5843-2007
1 Date : 30.11.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2301 OF 2018
IN
SUIT NO. 5843 OF 2007
(CNR NO.MHCC010074442018 )
Smt. Sunita Vivek Virkar & Ors. .. Plaintiffs
Versus
Smt. Sushma Sudhakar Moglewar & Anr. .. Defendants
Appearances :
Ld. Adv.Ankush Saraf for plaintiff present.
None for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 30.11.2019
ORDER
1. The plaintiff has filed instant Notice of Motion seeking
following reliefs :
a. Pending the hearing and final disposal of the suit, the
defendants, their agents, representative assigns,
hirelings, be restrained by an order of injunction from
disturbing peaceful possession of the plaintiffs and
their tenants / occupants / authorized representatives
in Flat no. 19, Ground Floor, Gr. Bombay Veershaiva
CHS Ltd., Mahamane Veershaiva Nagar, Chincholi
Bunder Road, Malad (West), Mumbai – 400 064.
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b. Pending the hearing and final disposal of the suit, the
defendants be directed to maintain status quo.
c. Adinterim and interim reliefs in terms of prayer
clauses (a) & (b) above be granted.
d. Such other and further reliefs as this Hon’ble Court
may deem fit and proper.
e. Cost of Notice of Motion be provided for.
2. It is the contention of the plaintiff that the present suit has
been filed by her husband for specific performance of oral
agreement to sale in respect of Flat no. 19, Ground Floor, Gr.
Bombay Veershaiva CHS Ltd., Mahamane Veershaiva Nagar,
Chincholi Bunder Road, Malad (West), Mumbai – 400 064. Her
husband has paid consideration of Rs. 2,20,000/ and in pursuance
of which her husband got the possession of the suit premises, since
1988 and after her marriage she continued to reside in the suit
premises.
3. It is contended by the plaintiff that her husband expired in
the year 2014 after his demise she do not have any independent
source of income. Therefore, she let out the aforesaid suit premises
on leave and license basis. However, the son of defendant no. 1
trying to threatened the tenant who is residing in the suit premises
and thus there is a apprehension to her that her possession will be
disturbed by the defendant. Hence, she filed instance Notice of
Motion seeking injunction and to maintain status quo till the
decision of the suit.
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4. The Notice of Motion is opposed by the defendant no. 1 by
filing her say. It is contended by the defendant no. 1 that plaintiff
filed bogus suit. The plaintiff suppressed the material fact. The
original plaintiff was allowed to reside in the suit premises as he
was the president of the respondent no. 2 society, and by taking
the disadvantage of humanity the original plaintiff illegally
residing in the suit premises without paying the occupancy
charges. The defendant no. 1 further contended that her nephew,
who is law graduate, she wanted to settled him in Mumbai and she
is in banafide need of the suit premises. She further denied the
oral agreement to sale entered into between the original plaintiff
and the defendant no. 2 and also denied the consideration amount
being received by her. The defendant no.1 thus, praying for
dismissal of Notice of Motion.
5. Heard Ld. Advocate for the plaintiff. The defendant no. 1
filed reply to the Notice of Motion on 05.07.2018. However,
inspite of repeated call, none appeared for the defendant no. 1.
Hence, I have considered the pleadings of the defendant from the
Written Statement as well as from the reply to the Notice of
Motion. It appears to me that the defendant no. 1 did not dispute
the possession of the plaintiff. Plaintiff come up with the case that
after death of her husband the suit premises is let on leave and
license basis. However, the defendant no. 1 is trying to disturb her
possession. In pursuance of the aforesaid fact, she has also filed
certain N.C reports which shows the apprehension of the plaintiff
as a reasonable. Thus, in view of the above fact, it appears that
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the defendant no. 1 did not dispute the possession of the plaintiff.
On the contrary, she has taken a ground that original plaintiff was
allowed to reside in the suit premises on a humanitarian ground.
6. The plaintiff filed instant suit for specific performance of oral
agreement for which the plaintiff annexed certain payment receipt
in consideration of suit premises. The aforesaid fact need a full
fledge trial. As the possession of the plaintiff not disputed by the
defendant no 1, in my view, the present Notice of Motion needs to
be allowed. Thus, I proceed to pass the following order :
ORDER
1. Notice of Motion No. 2301 of 2018 is hereby allowed in
terms of prayer clause (a) and (b).
2. Plaintiff to bear cost of Notice of Motion.
3. Notice of Motion No. 2301 of 2018 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 30.11.2019 Greater Bombay.
Dictated on : 30.11.2019
Typed on : 30.11.2019
Draft Submitted on : 30.11.2019
Checked on : 02.12.2019
Signed on : 02.12.2019
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5 Date : 30.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
02/12/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
30/11/2019
JUDGMENT/ORDER signed by P.O.
on
02/12/2019
JUDGMENT/ORDER uploaded on 02/12/2019
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