Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2421-2018 in SU 1368-2018
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.2421 OF 2018
(CNR No.MHCC01-007807-2018)
IN
SUIT NO.1368 OF 2018.
(CNR No.MHCC01-005273-2018)
Mohan Matadin Yadav }...PLAINTIFF.
Versus
Gaurishankar Maradin Yadav }...DEFENDANT.
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Shri.Vinod Yadav, learned advocate for the plaintiff.
Shri.Surendra Yadav, learned advocate for the defendant.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.No.62)
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O R A L O R D E R
(Delivered on 17/08/2021)
1. By filing this Notice of Motion, plaintiff has claimed reliefs
as under;
(a)Pending the hearing and final disposal of the suit that the
defendant his servants, agents and person or persons claiming through
the defendant be restrained by an order and injunction of this Hon’ble
Court from preventing and dispossessing the plaintiff as well as from
transfer, assigning and dealing with the suit premises i.e, Gala No.9,
Bldg.No.2 or any part situated at Devikrupa Co-operative Housing
Society, Pant Nagar, Ghatkopar(E), Mumbai-400 075 in any manner
whatsoever of nature;
(b)Pending the hearing and final disposal of the suit the Court
Receiver of High Court Bombay be appointed as the receiver of the suit
premises with right to collect compensation of the suit premises and to
distribute ½ share thereof of the plaintiff;
2. Read the affidavit filed in support of the Notice of Motion
and affidavit in reply filed by the defendant. Heard learned Shri.Vinod
Yadav advocate for the plaintiff and learned Shri.Surendra Yadav
advocate for the defendant. I have also gone through the written notes
of argument filed by learned advocate for the plaintiff. Perused the
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entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether
prima facie case is made out by the
plaintiff? ...Partly Yes.
ii)Whether balance of convenience lies in his
favour? ...Partly Yes.
iii)Whether irreparable loss will cause to the
plaintiff if injunction as prayed is not granted? ...Partly Yes.
iv)Whether it is necessary to appoint for court
receiver as prayed? ...No.
v)What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iv):
4. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that suit premises is allotted in the
name of deceased father as permanent alternate accommodation in lieu
of the old premises owned by the father, plaintiff has half share in the
suit premises and plaintiff is in joint possession of the suit premises with
the defendant. He argued that defendant is trying to grab the suit
premises on the basis of false and fabricated Gift Deed allegedly
executed by the father in the name of wife of the defendant. He argued
that the so called Gift Deed is not a registered document hence, it is not
admissible in evidence. He argued that defendant is trying to illegally
dispossess the plaintiff from the suit premises so also, defendant is
trying to create third party interest in the suit premises and if defendant
succeeds in his those illegal acts, it will cause an irreparable loss to the
plaintiff due to which, Notice of Motion shall be made absolute.
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5. As against this, learned advocate for the defendant argued
that plaintiff is and was never in possession of the suit premises due to
which, plaintiff is not entitled for relief of temporary injunction in
respect of protection of his possession over the suit premises. He further
argued that plaintiff has not joined the third brother as party to the suit
due to which, suit is not maintainable. He further argued that name of
wife of defendant is recorded as owner in respect of the suit premises
on the basis of the Gift Deed executed by the father, electric connection
has been released in the name of wife of the defendant at the suit
premises yet, plaintiff has not joined the wife of the defendant as party
defendant to the suit. He argued that defendant has no intention to
create third party interest in the suit premises. He argued that plaintiff
has not come before the court with clean hands hence, plaintiff is not
entitled for interim injunction due to which, Notice of Motion is liable
to be dismissed.
6. Admittedly, plaintiff and defendant are real brothers
interse and old premises was in the name of their father. It does not
appear to be in dispute that suit premises has been allotted in the name
of the father in lieu of the said old premises. It is the own contention of
defendant that letter of allotment in respect of the suit premises has
been issued in the name of the father. Defendant has contended that
father had separated the plaintiff and other brother from the family and
since year 2006, plaintiff and their another brother started residing
separately. Copy of Ration Card standing in the name of the father on
the address of old premises is produced by the plaintiff wherein, names
of plaintiff and defendant are available as members of the family of
their father. Even though, name of plaintiff is available in the said copy
of Ration Card, it is issued on the address of old premises and not on
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the address of the suit premises. Copy of Ration Card issued on the
address of the suit premises is produced by the defendant which shows
that names of defendant's wife, defendant and his daughter are only
mentioned therein. Plaintiff has not produced any document to show
that he is/was in possession of the suit premises due to which, the
contention of plaintiff is
prima facie not acceptable that he is in joint
possession of the suit premises with the defendant.
7. Defendant has contended that old premises is gifted to the
wife of defendant by the father by executing Gift Deed dt.25/10/2002.
Copy of said Gift Deed produced by the defendant shows that it is not a
registered document. Furthermore, even though it is the contention of
the defendant that father has gifted the old premises to his wife in year
2002, copy of possession receipt dt.26/05/2006 placed on record by the
defendant himself shows that possession of the suit premises was
handed over to the father and not to the wife of the defendant. Copy of
death certificate shows that father expired on 09/12/2007. It does not
appear that any steps were taken by the defendant or his wife during
lifetime of the father for getting the old premises transferred in the
name of the wife of defendant. Likewise, it does not appear that
defendant or his wife made any attempts to get the suit premises
allotted in the name of wife of defendant on the basis of the Gift Deed
allegedly executed by the father. Defendant has produced copies of
electricity bills to show that electric meter on the address of the suit
premises is in the name of wife of defendant however, the copy of letter
of allotment shows that suit premises has been allotted in the name of
the father due to which, merely because electric meter is in the name of
wife of defendant, it is not sufficient at this stage for accepting that wife
of the defendant is exclusive owner of the suit premises especially
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because, the Gift Deed is not a registered document.
8. Defendant has contended that plaintiff has got alternate
accommodation in lieu of his residential premises which was given to
the plaintiff by the father. Any material in that regard is not available on
record due to which, said contention of the defendant is not acceptable
at this stage. Since the suit premises has been allotted to the father in
lieu of the old premises of the father so also, considering the fact that
the copy of Gift Deed placed on record by the defendant shows that the
Gift Deed is not a registered document, it
prima facie appears that
plaintiff has rights in the suit premises. It is true that plaintiff has not
joined the wife of defendant as party defendant to the suit but it is not
sufficient at this stage to deny the contention of the plaintiff that he is
having interest in the suit premises. Having regards to those aspects,
this court is of the opinion that
prima facie case and balance of
convenience do lie in favour the plaintiff in respect of his claim for
temporary injunction to restrain the defendant or anybody claiming
through him from creating third party interest in the suit premises even
though, learned advocate for the defendant submitted that defendant
has no intention to create third party interest because, as mentioned
earlier, defendant is denying the rights of the plaintiff in the suit
premises by contending that father has gifted the suit premises to the
wife of defendant. This court is satisfied that irreparable loss will cause
to the plaintiff if temporary injunction in that regard is not granted in
favour of the plaintiff.
9. As mentioned earlier, contention of the plaintiff that he is
in joint possession of the suit premises with the defendant is
prima facie
not acceptable due to which, neither
prima facie case nor balance of
convenience do lie in his favour in respect of his prayer that defendant
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shall be restrained from dispossessing him from the suit premises. In the
result, there is no question of causing any irreparable loss to the
plaintiff if temporary injunction in that regard is not granted in favour
of the plaintiff. So far as the prayer for appointment of Court Receiver is
concerned, restraining the defendant or anybody claiming through him
would sufficiently protect the interest of plaintiff in respect of the suit
premises hence, it is not necessary to accept the said prayer. For these
reasons, by answering Point Nos.(i) to (iv) accordingly, I pass the
following order.
O R D E R
Notice of Motion No.2421 of 2018 is partly allowed as
under;
Pending final decision of the suit, defendant or anybody
claiming through him is hereby temporarily restrained from
creating third party interests in the suit premises in any manner.
Notice of Motion is thus disposed off as above.
Date :17/08/2021. (P.P.RAJVAIDYA)
Dictated on : 17/08/2021. Judge, C.R.No.62,
Checked on : 17/08/2021. City Civil Court,
Signed on : 17/08/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
20.08.2021 at 11.54 a.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 17/08/2021.
Order signed by P.O. on 17/08/2021.
Order uploaded on 20/08/2021.
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