Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4399-19 in SU 2921-19
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.4399 OF 2019
(CNR No.MHCC01-012045-2019)
IN
SUIT NO.2921 OF 2019.
(CNR No.MHCC01-011373-2019)
Mukhtar Ahmed S/o.Ali kabir Ansari }...PLAINTIFF.
Versus
Javed s/o. Iliyas Shaikh and Ors. }...DEFENDANTS.
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Shri.Tripathi, learned advocate for the plaintiff.
None appeared for defendants.
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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 09/11/2021)
1. By filing this Notice of Motion, plaintiff has claimed reliefs
as under;
a. that pending the hearing and final disposal of the suit, the
defendants by themselves and through their agents, servants and
representatives be restrained by an order and injunction of this Hon’ble
Court from entering into the suit premises viz. Garage No.5, 6, 7 and 8
at the rear of Rich Apartment CHS Ltd. Final plot No.7/3 TPS III
(Mahim) New Survey No.1/12, Wanza Wadi, Kapad Bazar, Mahim,
Mumbai 400 016 as shown in sketch plan Exhibit D hereto and
delineated by red colour boundary line and/or from breaking the two
feet boundary wall of the suit premises in any manner without
following due process of law.
b. that the Sr.Inspector of Police Mahim Police Station be directed
to implement the order of this Hon’ble Court which may be passed in
favour of plaintiff.
2. Read the affidavit filed in support of Notice of Motion.
Despite service through bailiff, defendant Nos.1 to 4 did not appear to
contest the Notice of Motion. Heard learned Shri.Tripathi advocate for
the plaintiff. Perused the entire record.
3. Following points arose for my consideration. I answered
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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 interim injunction as claimed is not
granted? ...Partly yes.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that plaintiff has produced sufficient
documents in support of the contentions raised in the Notice of Motion
and defendants have not bothered to appear despite service of Notice of
Motion. He argued that if the temporary injunction as prayed is not
granted, it will cause an irreparable loss to the plaintiff due to which,
Notice of Motion is liable to be made absolute.
5. Case of the plaintiff, in brief, is that plaintiff has purchased
four parking spaces being garage number 5, 6, 7 and 8 (those four
garages are the suit premises in this suit) at the rear of Rich Apartment
CHS Ltd. under registered agreement dtd.07/9/2009 which agreement
was executed on 18/11/1986, plaintiff is in exclusive use and peaceful
possession of the suit premises since year 1986, there is a boundary wall
of two feet constructed by the developer to identify the suit premises,
plaintiff is paying maintenance charges of the suit premises to the
Society and there is a dispute between the plaintiff and the Society
regarding maintenance charges hence, plaintiff has applied to the BMC
to assess the suit premises separately for property tax in his name.
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Defendant No.1 is residing in flat No.42, defendant No.2 is residing in
flat No..22, defendant No.3 is residing in room No.3A and defendant
No.4 is residing in room No.21A. Those defendants are parking their
respective motorcycles in the suit premises in spite of objection raised
by the plaintiff and they have broken one side two feet boundary wall of
the suit premises for bringing their motorcycles in the suit premises for
parking purposes. Defendants did not allow the plaintiff to fill bricks in
the broken area of the boundary wall, they assaulted the plaintiff on
16/10/2019 on his taking objection for parking the motorcycles in
respect of which, plaintiff had been to the police station for lodging
report but any action is not taken by the police. Defendants have no
right to park the motorcycles in the suit premises and they have
intention to forcibly occupy the part of the suit premises.
6. As mentioned earlier, defendants have failed to appear
despite service of Notice of Motion. Contentions raised in the plaint that
plaintiff has purchased the suit premises under a registered document is
supported by the copies of agreement dtd.18/11/1986 which was
registered on 27/09/2001, copy of Index-II and share certificate. It
appears that date of registration of the agreement is wrongly mentioned
by the plaintiff in plaint as 07/09/2009 though it appears to have
registered on 27/09/2001. It appears to be accidental mistake in the
plaint. Having regards to the fact that the statements made in the plaint
about ownership of the plaintiff in respect of the four parking spaces
(which is the suit premises in the present matter) are supported by the
copies of documents so also, having regards to the fact that those
statements have gone on record unchallenged as defendants have failed
to appear and contest the Notice of Motion, this court is of the opinion
that
prima-facie case and balance of convenience both do lie in favour
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of the plaintiff. This court is satisfied that if defendants are not
temporarily restrained from entering into and parking their vehicles in
the suit premises, without following due process of law, it will cause an
irreparable loss to the plaintiff. So far as the relief claimed in terms of
prayer clause-b is concerned, said relief cannot be granted at this stage.
For all these reasons, I answered point Nos.(i) to (iii) accordingly and
pass the following order.
O R D E R
Notice of Motion No.4399 of 2019 is partly allowed as
under.
Pending final decision of the suit, defendant Nos.1 to 4 or
anybody claiming through them are temporarily restrained from
entering into and parking their vehicles in the suit premises,
without following the due process of law.
Date : 09/11/2021. (P.P.RAJVAIDYA)
Dictated on : 09/11/2021. Judge, C.R.No.62,
Checked on : 09/11/2021. City Civil Court,
Signed on : 09/11/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
11.11.2021 at 5.30 p.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 09/11/2021
Order signed by P.O. on 09/11/2021
Order uploaded on 11/11/2021
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