Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4589/2019 (SC Suit-2807/2019)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4589 OF 2019
(CNR NO.MHCC010126262019)
IN
S. C. SUIT NO.2807 OF 2019
Mr. Seemab Masroorul Hasan ..Plaintiff
V/s.
Mr. Rajendra Gundappa Gaste .. Defendant.
Appearances :
Adv. M. P. Mishra for plaintiff.
Adv. R. C. Mishra for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 07/06/2022.
ORDER
1. This Notice of Motion is filed for grant of temporary
injunction restraining the defendant from dispossessing the plaintiff
from the suit premises, described in the plaint.
2. Indisputably, there is an agreement between the parties
regarding sale of suit premises to the plaintiff, who paid Rupees Seven
Lakhs as part payment and agreed to pay remaining amount of Rupees
One Lakh.
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3. Plaintiff has come with the case that defendant is not ready
to cooperate, intending to dispossess him from the suit premises and
therefore, prayed for grant of temporary injunction restraining the
defendant from dispossessing the plaintiff or any person on his behalf
from the suit premises without following due process of law.
4. In response, defendant adopted the Written Statement filed
to main suit as reply to the Notice of Motion. Defendant did not dispute
the existence of Agreement for Sale and payment of Rs.7 Lakhs and that
he inducted the plaintiff in possession of the suit premises. However,
he is insisting the plaintiff to pay remaining Rs.1 Lakh for his assurance
regarding possession.
5. Having regard to the rival contentions, following points
arose for my determination and I record my findings thereon for the
reasons hereunder:
POINTS FINDINGS
1. Does the plaintiff has make out prima
facie case and balance of convenience in
his favour ?
Affirmative.
2. Does the plaintiff prove that irreparable
loss will cause, if injunction is refused ?
Affirmative.
3. What order ? As per final order.
: R E A S O N S :
6. Heard at Length. Perused the record. Considering the rival
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contentions of the parties, the possession of plaintiff is not disputed.
There is some difficulties in registration of suit premises and parties
have proceeded for selling the suit premises on oral agreement and then
it was executed on bond before Notary. Thus, execution of agreement,
possession of plaintiff as well as the payment of Rs.7 Lakhs are not
disputed facts. In case, there is any default on the part of plaintiff in
payment of remaining amount, the defendant may avail an appropriate
remedy to recover the remaining amount. Defendant cannot take
power in his hand to dispossess the plaintiff from the suit premises.
7. During the arguments, defendant was asked to show his
intention to follow due procedure of law against plaintiff. However, he
was insisting for making the promise by plaintiff to pay the remaining
Rs.1 Lakh or the direction by the Court to the plaintiff to pay remaining
amount of Rs.1 Lakh, which is not the subject matter of the suit being it
is the suit for simplicitory injunction. Therefore, I am of the view that
there is reasonable apprehension that defendant will take the law in his
hand and his avoidance to assure to follow due procedure of law is
sufficient to draw an inference of his hostile intention. Thus, I am of
the view that plaintiff has made out the case prima facie and balance of
convenience is in his favour.
8. Once, plaintiff is dispossessed, he will not only loose the
amount of Rs.7 Lakhs already paid but the possession of the premises,
which could not be compensated in terms of money. Therefore, it is
necessary to secure the possession of plaintiff till he is dispossessed by
following due procedure of law.
9. The plaintiff has not made out the case to appoint a Court
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Commissioner as it is the simple suit for injunction & dispossession with
admitted to the defendant.
10. Considering the above discussion, I answer point No.1 & 2
in affirmative and proceed to pass following order:
ORDER
1. Notice of Motion No.4589/2019 in S.C. Suit No.2807/2019, is
hereby allowed.
2. Defendant is temporarily restrained from dispossessing the
plaintiff or any person on his behalf from the suit premises
without following due process of law, till pending the hearing and
final disposal of the suit.
3. Costs in cause.
4. Notice of Motion stands disposed off accordingly.
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, C.R. No.03
Dated : 07/06/2022 Greater Bombay
Dictated on : 07/06/2022
Typed on : 08/06/2022
Draft given to HHJ on :
Signed on :
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“Certified to be true and correct copy of the original signed order”.
16/06/2022 (Mrs. Vidya Abhijit Mande)
at about 12.30 noon Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 07/06/2022
Order signed by Hon'ble Judge on : 08/06/2022
Order uploaded on : 16/06/2022
at about 12.30 noon
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