Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.4724/19 in Su. No.2372/19
MHCC010128992019
Presented on : 09.12.2019
Registered on : 09.12.2019
Decided on : 18.01.2024
Duration : 4 Y 1 M 11 D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN
NOTICE OF MOTION NO.4724 OF 2019
IN
S. C. SUIT NO.2372 OF 2019
Shardaben Devsibhai Atrolia ... Plaintiff
V/s.
Jyotiben Jayantilal Daki & Ors. ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI. R. R. BHAGWAT
CITY CIVIL COURT
GR. BOMBAY ( C.R.NO.65)
DATE : 18th January, 2024
Adv. Mr. R. N. Pardiwala for the plaintiff.
None for defendants.
ORDER
The plaintiff has taken out present Notice of Motion
for interim reliefs with directions to defendants No.1 and 2 to
deposit Rs.4,08,000/- in the court and for temporary injunction
restraining them from creating third party rights in Shop No.5
situated at Madhav Baug Charity Fund, C. P. Tank, Mumbai.
2. Perused affidavit in support and suit proceeding.
Heard Ld. Counsel Mr. R. N. Pardiwala for the plaintiff.
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3. Ex-parte order is passed against defendants as per
roznama dated 24.01.2020.
4. On perusal of the record, it appears that the
plaintiff, defendants No.3, 4, late Jayantilal and Late Himmatlal
are siblings. Defendant No.1 is wife of Late Jayantilal.
Defendant No.2 is son of Late Jayantilal. Late Himmatlal is
having two daughters. It is the case of the plaintiff that on
28.08.2002 Deed of Family settlement was recorded in
handwriting of Late Jayantilal. Above referred shop No.5 was
given to Late Jayantilal and the plaintiff. It was further agreed
that Late Jayantilal shall pay sum of Rs.8,000/- per month to
the plaintiff from the said shop. It is contention of the plaintiff
that amount of Rs.8,000/- per month was regularly paid till
May,2015. Subsequently, defaults are committed in the
payment of the amount by defendants No.1 and 2. The
plaintiff also apprehends creation of third party rights in shop
No.5 by defendants No.1 and 2.
5. Ld. Counsel R. N. Pardiwala for the plaintiff pointed
out all these factual aspects as well as referred Deed of Family
Arrangment in Gujrati language and translation thereof. He
prayed to allow the Notice of Motion.
6. Considering over all material on record, the plaintiff
claimed amount of Rs.4,08,000/- payable to her by defendants
No.1 and 2 in prayer clause (b) of the plaint. This prayer is
also made in the present Notice of Motion. As final relief is
being tried to be sought at the stage of trial, it is not proper to
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grant the same. So far as the second relief of temporary
injunction is concerned, interest of the plaintiff in Shop No.5 is
made out from Deed of Family Arrangment. There is prima
facie material to show that the plaintiff has vested interest in
the Shop No.5 and it is liable to be protected. Creation of third
party in Shop No.5 would result in frustration of Deed of Family
Arrangement and terms therein. It would cause irreparable
loss to the plaintiff. All three cardinal principles for granting
interim relief tilt towards the plaintiff. Hence, I pass the
following order -
ORDER
1. Notice of motion No.4724 of 2019 is partly made
absolute in terms of prayer clause (b).
2. Defendants No.1 and 2 are thereby restrained from
sub-letting and/or giving on license and/or parting
with possession of and/or transferring or assigning in
any other manner their interest in the said Shop No.5
situated at Madhav Baug Charity Fund, C. P. Tank,
Mumbai in favour of any other person or third party.
3. Proceeding of Notice of Motion No.4724 of 2019 in
Suit No.2372 of 2019 is closed.
(R. R. Bhagwat)
Date- 18.01.2024 Judge,City Civil Court,
Gr. Bombay.
Dictated on : 18.01.2024
Typed on : 18.01.2024
Signed on : 18.01.2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
22/01/2024 3.05 p.m. ( 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
18/01/2024
JUDGMENT/ORDER signed by
P.O.on
18/01/2024
JUDGMENT/ORDER uploaded on 22/01/2024
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