Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO. 3952 OF 2019
MHCC010109052019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3952 OF 2019
IN
S.C.SUIT NO. 2293 OF 2019
Nilkant Dattaram Pawar.
Age: 58 years,
Residing at R.C. Compound, Chawl No.11,
Sewree, Bombay 400 015. ...Plaintiff.
Versus
1. Mrs. Darshana Wd/o - Krishna Pawar
Age: 45 years.
2. Vinayak Krishna Pawar.
3. Sarvesh Krishna Pawar.
All defendants residing at 6/19, R. G. Compound,
T. J. Road, Sewree,
Bombay 400 015. … Defendants.
Advocates
Suresh Gole for the plaintiff.
Vikas Khanolkar for defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 20th November, 2021
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ORDER ..2.. NM NO. 3952 OF 2019
ORAL ORDER
Perused record. Heard advocate for both parties on notice of
motion moved on behalf of the plaintiff for grant of temporary
injunction to restrain defendants from physically preventing the plaintiff
and his family members from joint occupation of the suit premises i.e.,
Room No.19, Chawl No.6, Raoji Shojpal Chawl, R.S. Compound, T.J.
Road, Sewree, Mumbai 400015.
2. Plaintiff and husband of defendant no.1 are real brothers.
Defendants no.2 and 3 are sons of defendant no.1.
3. Contention of the plaintiff is that plaintiff was residing in the suit
premises alongwith husband of defendant no.1 and his family. Plaintiff
was dispossessed from the suit premises in the year 2008. Plaintiff
attempted to resume joint possession of the suit premises but
defendants objected. Plaintiff is residing on leave and license basis.
Licensor is not willing to extend the license. Hence plaintiff filed this
suit for permanent injunction and claiming temporary injunction so as
to part with joint possession of the suit premises.
4. Defendants denied possession of the plaintiff in the suit premises
and submitted that Krishna Pawar, deceased husband of defendant no.1
and father of defendant no.2 and 3 was lawful tenant of the suit
premises. He was in exclusive possession of the suit premises prior to
1990. Then defendants are in possession of the suit premises till date.
5. Krishna Pawar had filed Suit No. 1828/2008 against his two
other brothers and the plaintiff. Writ of summons of said suit was
served on the plaintiff on the address mentioned in the title clause of
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ORDER ..3.. NM NO. 3952 OF 2019
the plaint. After the marriage, plaintiff already left the suit premises
prior to the year 1990 and living separately at his residence mentioned
in title clause of the plaint. Plaintiff was never dispossessed from the
suit premises. Even the plaintiff has not taken steps against his alleged
dispossession for nearly 12 years. Hence he prayed for dismissal of
notice of motion.
6. From the perusal of plaint and documents, it appears that
deceased Krishna Pawar, husband of defendant no.1 and father of
defendant no.2 and 3 had filed S.C. Suit No.1828/2008 before this
Court for perpetual injunction against his two brothers and the plaintiff
restraining them from entering in the suit premises. Said suit was partly
decreed on 10.12.2010 and defendant no.1 and 2 therein i.e., Sukhadev
Dattaram Pawar and Vitthal Dattaram Pawar were restrained from
entering into the suit premises until their rights are declared by
Competent Court under Rent Legislation and suit against defendant
no.3 i.e., plaintiff was dismissed. In the said suit, it was held that
defendant no.3 i.e., plaintiff have right to stay in the suit premises.
7. Krishna Pawar had preferred First Appeal No.224/2011 and in
that appeal, he had filed Civil Application no.452/2011. On said civil
Application No.452/2011, the Hon'ble High Court has passed the order
dated 04.08.2011 and 3rd respondent i.e., plaintiff herein (defendant
no.3 in Suit No.1828/2008) was restrained from entering into the suit
premises without following due process of law and he was directed to
adopt appropriate remedy notwithstanding the pendency of appeal.
8. Plaintiff himself admitted that he is not in possession of the suit
premises on a date of filing of the suit or till date. From the
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ORDER ..4.. NM NO. 3952 OF 2019
documentary evidence on the record also, it is evident that plaintiff was
and is not residing in the suit premises. Suit is for permanent injunction
restraining defendants from obstructing entry of the plaintiff in the suit
premises. Plaintiff is not jointly occupying the suit premises with
defendants. He is claiming right of occupation in the suit premises by
way of this suit. Plaintiff is claiming final relief in the suit by way of
present notice of motion. Hence no prima facie case is made out in
favour of the plaintiff and against defendants for grant of injunction as
prayed. Thus notice of motion is not legally sustainable and liable to be
dismissed with costs. Under the facts and circumstances, following
order.
ORDER
Notice of Motion No.3952/2019 is dismissed and disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 20.11.2021
Typed on : 20.11.2021
HHJ signed on : 20.11.2021
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ORDER ..5.. NM NO. 3952 OF 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 20.11.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
20.11.2021
JUDGMENT/ORDER signed by P.O.
on
20.11.2021
JUDGMENT/ORDER uploaded on 20.11.2021
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