Final Order 1

Order Details: Notice of Motion
Pdf Text: Order ..1..
MHCC010114192019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4159/2019
IN
S.C.SUIT NO. 2572 OF 2019
Inderlok Infra Agro Pvt. Ltd. .. Plaintiff.
Versus
Smitesh Subhash Tankkar and One. .. Defendants.
Appearance
Adv. Priti Shah for the plaintiff.
Defendant nos. 1 and 2 proceeded without reply
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(Court No.: 2)
DATED : 22nd March, 2022
ORAL ORDER
Heard advocate for the plaintiff on notice of motion moved on
behalf of the plaintiff for grant of temporary injunction under Order 39,
Rule 1 of the Civil Procedure Code (CPC) to restrain defendants from
creating third party interest in respect of the suit premises i.e. open
passage admeasuring 11’ X 21’ sq. fts at Shroff Market, Main building,
Gokhale Road, South, Dadar, Mumbai 400 025.
2. Both defendants are duly servant on 11.01.2020. They failed to
file written statement and reply to notice of motion. Hence defendants
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Order ..2..
are proceeded without written statement and reply of present notice of
motion.
3. Contention of advocate for the plaintiff is that the plaintiff is the
owner of suit premises. Defendants have encroached on the suit
premises. Plaintiff sent notice dated 03.12.2004 to Subhash Tankkar,
father of defendants for vacating the suit premises but possession of the
suit premises is not given to the plaintiff. Defendants are legal heirs of
said Subhash Tankkar. Cause of action stated to be arose on 09.08.2004
when appellant bench of Small Causes Court at Mumbai has confirmed
the Judgment passed by the Trial Court in RAD Suit No.2376/1992
dated 02.04.1997. Under the circumstances plaintiff filed the present
suit for declaration, possession and permanent injunction.
4. As per Order 39, Rule 1(a) of the CPC, the Court may grant
temporary injunction where in any suit it is proved by affidavit or
otherwise that any property in dispute in a suit is in danger of being
alienated by any party to the suit.
5. Perused the plaint, documents, notice of motion and affidavit in
support of it. Plaintiff filed on record, sketch map of the suit premises
showing encroachment and possession of defendants in the suit
premises. Plaintiff also filed on record, copy of judgment dated
01.04.1997/02.04.1997 in RAD Suit No. 2376/1992. It appears that
Subhash Arjun Tankkar, father of defendants had filed said suit against
the plaintiff for declaration of tenancy right in respect of the suit
premises and said suit was dismissed on merits. Father of plaintiff had
preferred Appeal No. 330/1997 before the appellant bench of Small
Causes Court. Said appeal is also dismissed on merits on 09.08.2004.
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Order ..3..
Plaintiff also filed on record, copy of advocate notice dated 03.12.2004
issued by the plaintiff to father of defendants. Defendants are in
possession of the suit premises. Plaintiff apprehends that defendants
may create third party interest in the suit premises. Considering the
facts that defendants appeared before the Court but did not file their
written statement or reply on the record, apprehension of plaintiff is
bonafide and reasonable. Under the facts, circumstances and
considering nature of the suit, notice of motion is liable to be allowed.
In the result, following order.
ORDER
1. Notice of Motion No. 4159 of 2019 is allowed with costs.
2. Costs shall follow the event.
(Sunil T. Soor)
Judge
Date : 22.03.2022 City Civil Court, Gr. Mumbai.
Typed on : 22.03.2022
HHJ signed on : 22.03.2022
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Order ..4..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22.03.2022, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
22.03.2022
JUDGMENT/ORDER signed by P.O.
on
22.03.2022
JUDGMENT/ORDER uploaded on 22.03.2022
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