Final Order 2

Order Details: Notice of Motion
Pdf Text: Notice of Motion
No. 3644 of 2019 1
MHCC010099322019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3644 OF 2019.
IN
SC SUIT NO.2391 OF 2019.
(C.N.R.No.MHCC01-009932-2019)
Mr. Suresh Tanaji Parab & Anr. ] …. Plaintiffs.
V/s.
Smt. Vandana Vijay Parab and Anr. ] ..Defendants.
Appearance :
Learned Adv. Mr. Ghogare for the plaintiffs.
Learned Adv. Ms. Nirmala Gopal for defendant No.1.
Learned Adv. Ms. Diwan for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI. A. S. KAZI.
(C.R.NO.09)
DATE : 5th JULY, 2024
ORAL ORDER
Heard Ld Counsel for plaintiffs and defendants. In view of
the above, the following points arise for determination before me and I
record my findings thereon for the reasons enumerated hereinafter :
Sr.No. POINTS FINDINGS
1. Whether plaintiffs had made out a
prima facie case in their favour?
...Yes...
2. In whose favour the balance of
convenience tilts in granting the
relief or refusing to grant it?
...In favour of
plaintiffs...
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No. 3644 of 2019 2
3. To whom irreparable loss would be
caused in granting or refusing to
grant the relief?
...To
plaintiffs...
:REASONS:
AS TO POINT Nos.1 to 3:
2. The dispute and controversy in the above Notice of Motion
lies in a narrow compass. On the one hand it is the contention of
plaintiffs that they are the brother and sister of deceased Vijay Tanaji
Parab and the suit premises were secured in the name of deceased Vijay
Parab as he was the youngest brother though the plaintiffs paid
consideration for the same. Hence, it is their contention that the
defendant No. 1 is the widow of their deceased brother Vijay Parab and
after the death of Vijay she approached the office of defendant No. 2
and got her name transferred in respect of the suit premises wrongly
though plaintiffs also have a right in the same. Now therefore, it is
submitted that during the pendency of the suit the defendant No. 1 may
be restrained from transferring, alienating or selling the suit premises or
from creating third party interest therein.
3.
Per Contra it is the case of the defendant No. 1 that all the
allegations made in the Notice of Motion are false. Plaintiffs never
stayed in the suit premises with her Late husband. At the time of her
marriage with deceased Vijay Parab, plaintiffs had informed her parents
that the suit property is in the name of the Vijay and after her marriage
she came to reside therein. It is denied that the suit premises was
secured in the name of deceased Vijay by plaintiffs. It is further
submitted that her husband had filed nomination form during his life
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Notice of Motion
No. 3644 of 2019 3
time with the society and accordingly the society transferred the suit flat
in her name. The plaintiff no 1 has his own flat bearing No. 1/42 in Saif
Building, Sane Guruji Marg, Lalbaug, Mumbai- 400012. The Plaintiff
No. 2 is also having her own flat as she was working in Andhra Bank as
Assistant Manager. Hence, it is submitted that the Late husband of
defendant No.1 had purchased the suit property before her marriage.
She is the only legal heir of deceased Vijay and therefore, entitled to the
suit flat. Hence, balance of convenience is in her favour and there is no
urgency in granting the injunction as prayed. So it is prayed that the
Notice of Motion be dismissed with costs.
4. After hearing both the sides at length, I find that there is
assertion and denial on both sides of their alleged rights in the suit flat.
The only relief sought by plaintiffs is for preserving the subject matter of
the suit till the pleadings are substantiated by the evidence. Therefore,
in my opinion, looking to the controversy which requires adducing of
evidence, the subject matter of the suit needs to be preserved till the
conclusion of the trial. Hence, to that extent, plaintiffs have made out a
prima facie case in their favour. So I answer point No.1 in the
affirmative
5. So far as the balance of convenience is concerned, in my
opinion the dispute needs to be decided by appreciating the evidence on
questions whether the plaintiffs in fact contributed to the purchase of
the suit flat. Hence, the subject matter needs to be preserved. Hence,
the balance of convenience lies in favour of plaintiffs and consequently,
the irreparable loss will result to plaintiffs if the relief is refused. So I
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No. 3644 of 2019 4
answer point No. 2 and 3 in favour of plaintiffs and proceed to pass the
following order :
ORDER
1. Notice of Motion No.3644 of 2019 is allowed in terms of
prayer clause (a).
2. Defendants are hereby temporarily restrained either by
themselves, through their agents, servants, employees and any
other person claiming through them from transferring, alienating,
disposing off and/or creating third party rights in respect of the
suit premises i.e. Room No. B-2/306 Shri Pimpleshwar Co-Op.
Hsg. Society Ltd., Mahadeo Palav Marg, Currey Road, Mumbai –
400 013 till the disposal of the above suit.
3 No order as to costs.
4. Notice of Motion No.3644 of 2019 is disposed off
accordingly.
(A. S. Kazi)
Judge,
City Civil Court,
Date: 05.07.2024 Gr. Bombay.
Dictated on : 05.07.2024
Typed on : 05.07.2024
Signed on : 05.07.2024
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Notice of Motion
No. 3644 of 2019 5
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
05.07.2024 at 4.00 -P.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.V.M.Pathade,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 05.07.2024
Order signed by P.O. on 05.07.2024
order uploaded on 05.07.2024
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