Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. Order in N/M no.2391/2018 in Suit 9287/1999
MHCC010077092018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2391 of 2018
IN
SUIT NO. 9287 OF 1999
Dr. Jitendra Ratilal Parikh ...Plaintiff.
Versus
1A. Mrs. Leelavati Devendra Parikh
(since deceased)
1B) Deepak Devendra Parikh & Ors. ...Defendants.
Appearance:
Adv. Smt. Mumtaz Shaikh i/b Adv. Prem Gidwani for plaintiffs.
Adv. Shri Jaydeep Thakkar for defendant no.1(b).
CORAM : SMT. S.S.NAGUR
JUDGE, (C.R.NO.62)
DATE : 07.04.2026
ORAL ORDER
(Dictated in open Court)
1. The Notice of Motion is filed by defendant No.1(b) to
modify the order dated 28/03/2002 passed in Notice of Motion
No.2850/1999 in the suit and direct the Court Receiver to take
possession of Block No.8 on the 2nd floor of the suit premises and
appoint defendant No.1(b) as agent of Court Receiver for the said room
and permit defendant No.1(b) to occupy the said room pending the
hearing and final disposal of the suit.
-- 1 of 6 --
..2.. Order in N/M no.2391/2018 in Suit 9287/1999
2. The Notice of Motion is supported by affidavit of defendant
No.1(b). He on oath stated that suit is for the partition of the suit
properties filed by the plaintiff. In the Notice of Motion No.2850/1999
the Hon’ble High Court by order dated 30/08/1999 granted interim
relief whereby Court Receiver was appointed in respect of properties
including Block No.8 on 2nd Floor of building Jasud Bhuvan. The
plaintiff was appointed as agent of Court Receiver in respect of two
room of Block No.8 to conduct his clinic from the said two rooms.
3. The defendant No.1 (b) stated that the defendants is
residing in other room of Block No.8. The plaintiff after getting the
above order never resided in the suit block. The said two rooms are
locked since many years due to which there is dust accumulated and the
rats/insects are there which are hazardous to the health of the
defendants. Hence this notice of motion seeking the above relief.
4. The plaintiff filed reply through affidavit and has denied
the contents of notice of motion in toto. There is no dispute in respect
of the order passed by Hon’ble High Court and possession of two room
in Block No.8. It is the contention of the plaintiff that the defendant did
not allow him to enter the said block even for cleaning the said rooms.
Whenever he visited the defendant No.1(b) became violent and
threatened him in front of Court Receiver representatives that he will
murder him. Hence, prayed to reject the application.
5. The defendant No.1(b) filed rejoinder affidavit and has
denied the allegations against him in the reply in toto.
6. Heard Advocate Shri Jaydeep Thakkar for defendant
No.1(b). Advocate Smt. Mumtaz Shaikh for plaintiff stated that their
reply on record be treated as argument to the notice of motion. I have
-- 2 of 6 --
..3.. Order in N/M no.2391/2018 in Suit 9287/1999
gone through the contents of notice of motion supported by affidavits of
the parties and documents relied by both the parties.
7. In Appeal No.1116/2001 against the order passed in Notice
of Motion No.2850/1999 in Suit No.5041/1999, the Hon’ble High Court
on 28/03/2002 in para No.2 passed order “in view of general consensus
arrived at between the learned Counsel for parties during the course of arguments.”
The appointment of plaintiff as agent of two rooms of Block No.8 is on
the basis of the said consensus for using the same. The clause (d) of the
order the Hon’ble High Court is that “It would be open to Respondent No.1 to
make alterations by putting wooden/temporary partition of cabins and instal wash
basin/water connection in the hall marked “ABCD” Exh.22 at page 263 at this cost
after obtaining necessary permissions from the concerned authorities, if any, without
claiming any equity in that regard at the time of the final disposal of the suit.”
8. The plaintiff is claiming the possession of the two rooms of
Block No.8 through modification of the above order. The above order is
passed by Hon’ble High Court on the consensus of both the parties. The
plaintiff being one of the joint owners of the property was allowed to
occupy the two room of Block No.8. Now the defendant is claiming the
said two room on the ground that plaintiff has never used the said room
after the order was passed. In the said room the dust is accumulated
and there are insects like cockroach, lizard, rats etc., which causes
serious health issues to them.
9. The defendant No.1(b) has relied on the report of the Court
Received dated 12/11/2018. In the said report the representative of
said Court Receiver Shri R.B. Ghadi visited the suit premises and filed
report alongwith the photographs. The report of the Receiver shows
that the two rooms has accumulated dust. However it was also found
that near the common door one wooden sheet is put by defendant
-- 3 of 6 --
..4.. Order in N/M no.2391/2018 in Suit 9287/1999
No.1(b) below the common door so that rat and cockroach should not
come in the defendant No.1(b)’s hall.
10. On perusal of reply of plaintiff he on oath stated that it is
the defendant who did not allow him to enter the suit premises.
Whenever he visited the defendant No.1(b) has threatened him. The
plaintiff has relied on the orders of the Hon’ble High Court to show that
he has approached the Hon’ble High Court in the suit by chamber
summons to bring on record that defendant has flouted the orders of
the court.
11. The report of Court Receiver dated 17/08/2001 shows that
the wife of defendant No.1 Smt.Leelavati Devendra Parikh did not allow
the Receiver to enter the suit premises to take measurement as per
order of the Court. Therefore the plaintiff allow the Receiver to take
measurement of the part of the suit premises which is in his possession.
There is a letter issued to the Court Receiver relied by the plaintiff dated
02/01/2003 stating that during the appointment defendant No.1(b)
became violent and used filthy language and abused the plaintiff.
12. Considering the above facts on record and the order of
Hon’ble High Court in Appeal No.1116/2001 against the order passed
in Notice of Motion No.2850/1999 in Suit No.5041/1999 is on the basis
of consensus of both the parties. The plaintiff being joint owner was
allowed to occupy the said two room in Block No.8 of the suit premises.
The said order cannot be modified. Hence, pass following order.
ORDER
1. Notice of Motion No.2391/2018 is rejected.
2. Parties to bear their own costs.
-- 4 of 6 --
..5.. Order in N/M no.2391/2018 in Suit 9287/1999
3. Accordingly, Notice of Motion is disposed of.
(Smt. S.S. Nagur)
Judge
City Civil Court,
Date : 07.04.2026 Gr. Mumbai.
Pronounced on : 07.04.2026
Directly dictated on PC : 07.04.2026
Typed on : 07.04.2026
Checked & Sign on : 07.04.2026
-- 5 of 6 --
..6.. Order in N/M no.2391/2018 in Suit 9287/1999
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
Mrs. Manisha S. Putta	07.04.2026 5.45 PM
Name of the Judge (With C.R. No.) HHJ Smt.S.S.Nagur (C.R.No. 62)
Date of Pronouncement of
JUDGEMENT /ORDER
07.04.2026
JUDGEMENT /ORDER signed by P.O.
on
07.04.2026
JUDGEMENT /ORDER uploaded on 07.04.2026
-- 6 of 6 --