Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.4695/19 (SC No.2965/19)
MHCC010128102019
Presented on : 07/12/2019
Registered on : 07/12/2019
Decided on : 30/04/2024
Duration : 4 Y 4 M 25 D
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.4695 OF 2019
IN
SHORT CAUSE SUIT No.2965 OF 2019
Mrs. Gangubai Fakira Kamble & Ors. ... Plaintiffs
- Versus -
Mr. Sachin Fakira Kamble & Anr. … Defendants
CORAM : HIS HONOUR JUDGE
SHRI. R. R. BHAGWAT
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.65)
DATE : 30/04/2024.
Appearance :-
Ms. Samiksha Mahalekar, Advocate for the plaintiffs.
Shri. P. S. Tiwari, Advocate for defendants No.1 and 2.
O R D E R
The plaintiffs have taken out notice of motion for
temporary injunction restraining defendants No.1 and 2 from
interfering in peaceful occupation and possession of the suit premises by
the plaintiffs and also for stopping them from evicting the plaintiffs
from suit premises. Perused affidavit in support, affidavit in reply and
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the suit proceeding. Heard Ld. Counsel Ms. Samiksha Mahalekar for the
plaintiffs and Ld. Counsel Shri. P. S. Tiwari for defendants No.1 and 2.
2. Ld. Counsel Ms. Samiksha Mahalekar for the plaintiffs
submitted that plaintiffs No.3 and 4 are daughters of plaintiffs No.1 and
2. Defendant no.1 is son of plaintiffs No. 1 and 2. Defendant No. 2 is
wife of defendant No.1. Ld. Counsel Ms. Samiksha Mahalekar
submitted that the plaintiffs as well as the defendants were residing
together in the suit premises. Plaintiff No.1 had given part consideration
to defendant No.1 for purchasing the suit premises. Defendant No.1
shifted to another premises after his marriage with defendant No.2.
Dispute between the parties arose in the year 2019. Defendants No. 1
and 2 are residing in the premises taken on Leave and License basis.
Plaintiff No.3 has mental illness and she is divorcee. Plaintiff No.4 is
only earning member in the family. Defendant No.1 may create third
party rights in respect of suit premises because share certificate,
electricity bill, etc. are in his name. The suit property is purchased as
per agreement for sale dated 30.12.2013 in the name of defendant
No.1. Plaintiffs No.1 and 2 are senior citizen and they have been
residing in the suit flat for about 10 years. The plaintiffs will not create
third party rights in respect of the suit premises and they would not part
with possession of the suit premises. She prayed to allow notice of
motion No.4695/2019.
3. On the contrary, Ld. Counsel Shri. P. S. Tiwari for
defendants No.1 an 2 submitted that two prayers are made in the notice
of motion. Plaintiff No.1 has two extra rooms. Plaintiff No.3 has her
own flat at Borivali and brother Satish is residing in Bhandup.
Defendants No.1 has purchased the suit premises. Defendant No.1 is
paying maintenance charges to the society in respect of the suit
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premises till date. He referred paras 4, 7, 8, 11, 15, 16 and 17 of written
statement Exh.4 in order to demonstrate particulars of the properties
available to the plaintiffs for their residence purpose. He further
submitted that persons having no right in the suit property cannot be
allowed to stay in the suit premises. Plaintiff No.4 has given her flat on
rent. Plaintiff No.2 gets pension. Contribution in payment of
consideration amount to purchase the suit premises can be considered
at the time of trial. He further submitted that the defendants have also
filed counter claim Exh.5 and notice of motion No. 4283/2022 seeking
relief that the plaintiffs shall not part/or create third party rights in the
suit premises. He prayed for dismissal of notice of motion
no.4695/2011 and to allow notice of motion no.4283/2022.
4. Considering rival submissions and material on record, it
appears that plaintiffs No.1 and 2 are mother and father of defendant
No.1 respectively. Plaintiff No.3 and 4 are real sisters of defendant No.1.
It is specific case of the plaintiffs that the plaintiffs and the defendants
were residing together in the suit premises. It is contended in para 10 of
the plaint that the plaintiffs had contributed for purchasing the suit
premises as per agreement for sale dated 30.12.2013 in the name of
defendant No.1. The defendants have not disputed possession of the
plaintiffs over the suit premises. As the plaintiffs are in settled
possession of the suit premises and they are family members of the
defendants, possession of plaintiffs is liable to be protected. Plaintiffs
No.1 and 2 are senior citizens and they cannot be made to suffer in
their old age. Controversy relating to contribution in payment of
consideration amount can be dealt with while deciding suit on merit.
The plaintiffs have prima facie case in their favour. They would suffer
greater hardship if they are dispossessed without following due process
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of law. Balance of convenience is in favour of the plaintiffs. Therefore,
notice of motion is liable to be allowed. Hence, I pass the following
order :-
O R D E R
1] Notice of Motion No.4695/2019 in Suit No.2965/2019 is made
absolute in terms of prayer clause (a).
2] Proceeding of Notice of Motion No.4695/2019 in Suit
No.2965/2019 is closed.
Date : 30/04/2024. ( R. R. Bhagwat )
Judge City Civil Court,
Gr. Bombay.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30.04.2024 at 4.44 pm ( Samruddhi Jadhav)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R.R. Bhagwat (C.R.No.65)
Date of Pronouncement of
JUDGMENT/ORDER
30/04/2024
JUDGMENT/ORDER signed by
P.O.on
30/04/2024
JUDGMENT/ORDER uploaded on 30/04/2024
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