Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM-4879-2019 in SU-3178-2019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 4879 OF 2019
(CNR No.MHCC01-013325-2019)
IN
SUIT NO. 3178 OF 2019.
(CNR No.)MHCC01-011865-2019)
Anupama Sharad Puranik }...PLAINTIFF.
Versus
Manish Liladhar Parab and Ors. }...DEFENDANTS.
------------------------------------------------------------------------------------------------
Shri.Abhyankar, learned advocate for the plaintiff.
Smt.Marathe, learned advocate for defendant Nos.1 & 2.
Smt.Tripathi, learned advocate for defendant Nos.3 to 5.
------------------------------------------------------------------------------------------------
CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
-----------------------------------------------------------------------------------------
O R A L O R D E R
(Delivered on 16/03/2022)
1. By filing this Notice of Motion, plaintiff has claimed relief
as under;
a) Pending hearing and final disposal of the suit, the
Hon’ble Court be pleased to issue temporary injunction
restraining defendants, their servants and agents from creating
any third party right, title and interest in respect of the suit
properties viz., Flat No.B/8 Ratna Co-op. Hsg. Society Ltd., 186,
Veer Savarkar Marg, Mahim, Mumbai400 016 admeasuring about
1000 sft.(2BHK) and also a shop admeasuring about 300 sq.
ft.22/220 Shindewadi Society, Dr. Ambedkar Road, Dadar(East)
T.T. Mumbai or parting with the possession of the same.
2. Read the affidavit filed in support of Notice of Motion and
reply. Heard learned Shri.Abhyankar advocate for the plaintiff, learned
Smt. Marathe advocate for the defendant No.2 and ld. Advocate Smt.
Tripathi for defendant Nos.3 to 5. Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
-- 1 of 6 --
2 NM-4879-2019 in SU-3178-2019
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiff? ...Partly yes.
ii) Whether balance of convenience lies in her
favour? ...Partly yes.
iii) Whether irreparable loss will cause to the
plaintiff if interim reliefs as claimed are 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 suit flat was owned by the father
of plaintiff and suit shop was the tenanted premises of the father of the
plaintiff. He argued that plaintiff has 1/7th share in both suit premises
for which, she has filed the present suit as defendant Nos.1 and 2 are
denying to give her share to the plaintiff. He argued that defendant
Nos.1 & 2 are likely to create third party interests in those suit premises
hence, plaintiff is entitled for the interim reliefs as claimed in the Notice
of Motion. In support of her argument, learned advocate for the plaintiff
has placed reliance on the law laid down by Hon'ble Apex Court in a
case of
Piraji Narayanrao Mathankar Vs. Laxmn Upasrao Pote reported
in
2016(1) Mh.L.J. 813.
I have gone through said authority.
5. As against this, learned advocate for defendant Nos.1 & 2
argued that father was absolute owner of the suit flat, it was self
acquired property of the father and father has executed a Will in respect
of the suit flat in favour of the defendant No.1 due to which, plaintiff
has no rights, share and interest in the suit flat. She argued that father
expired way back on 09/01/1985 and suit is filed in year 2019 which is
-- 2 of 6 --
3 NM-4879-2019 in SU-3178-2019
barred by law of limitation. She argued that suit shop is the tenanted
premises and during the lifetime of the father itself, rent receipt of the
suit shop has been issued in the name of defendant No.1 due to which,
plaintiff is not entitled for any share in the suit shop. She argued that
since the suit is barred by law of limitation, plaintiff is not entitled for
any interim reliefs hence, Notice of Motion shall be dismissed. In
support of her argument, learned advocate for defendant Nos.1 & 2 has
placed reliance on the law laid down by Hon'ble Bombay Court in a case
of
Vimal Builders Vs. Nand Kumar reported in
AIR 2013 Bom. 127. I
have gone through said authority.
6. It is not dispute that father Pandurang of the plaintiff died
on 09/01/1985 leaving behind his wife Savitribai, son by name
Liladhar, five daughters and children of predeceased daughter Kamal.
Savitribai expired on 13/02/2007. Liladhar expired on 29/09/2018.
Wife Surekha of Liladhar expired on 05/08/2019 and one daughter
Kamal of Pandurang expired on 20/09/1970. Defendant No.1 & 2 are
legal heirs of deceased Liladhar. Defendant Nos.3 & 4 are the legal heirs
of deceased Kamal. Defendant Nos.5 to 8 and plaintiff are the other
daughters of deceased Pandurang. Contention of the plaintiff is that
Pandurang died intestate whereas, contention of the defendant Nos.1 &
2 is that Pandurang has left a Will whereby, the suit flat is given by him
to defendant No.1. Defendant Nos.1 & 2 have contended that suit flat
was self acquired property of deceased Pandurang. Those defendants
have placed on record copy of Will allegedly executed by deceased
Pandurang however, it does not appear that defendant No.1 has
obtained Probate of the said Will till date due to which, said Will cannot
be considered at this stage. The argument that defendant No.1 is in the
process of filing Probate Petition is not sufficient at this stage for
-- 3 of 6 --
4 NM-4879-2019 in SU-3178-2019
accepting that defendant No.1 has acquired rights in the suit flat by
virtue of the Will of which copy is placed on record by him. Thus,
prima-facie it appears that suit flat is devolved upon the heirs of
deceased Pandurang upon his death.
7. Learned advocate for the defendant Nos.1 & 2 submitted
that Pandurang expired in year 1985 which means that succession
opened in year 1985 due to which, suit filed in year 2019 is barred by
Law of Limitation. In support of her argument that limitation of 3 years
is prescribed for seeking declaration, learned advocate for defendant
Nos.1 & 2 has placed reliance on the law laid down by Hon’ble Bombay
High Court in a case of
Vimal Builders Vs. Nand Kumar cited above.
8. Plaintiff has contended in the plaint that defendant No.1
has refused to give her share in the suit properties on 12/11/2019.
There is no material on record, at least at this stage, to suggest that
defendant Nos.1 & 2 had denied to give any share to the plaintiff in the
suit properties before November 2019. Having considered the said
aspect, the contention of defendant Nos.1 & 2 cannot be accepted at
this stage that suit is barred by Law of Limitation. It will be a matter for
consideration on merits which will have to be decided by giving
opportunities of adducing evidence to both the parties.
9. It is not in dispute that suit shop was the tenanted premises
of deceased Pandurang. Since it was the tenanted premises of deceased
father Pandurang of the plaintiff, provisions of Section 7(15) of the
Maharashtra Rent Control Act would be applicable. It does not appear
to be in dispute that defendant No.1 was doing business from the suit
shop while residing with deceased Pandurang during his lifetime hence,
since the suit shop is commercial tenanted premises, the claim of the
plaintiff in respect of the said suit shop does not appear to be
-- 4 of 6 --
5 NM-4879-2019 in SU-3178-2019
acceptable. Thus, this court is of the opinion that
prima facie case and
balance of convenience both do lie in favour of plaintiff in respect of the
relief claimed for the suit flat only and not in respect of the suit shop. In
the result, this Court is of the opinion that irreparable loss will cause to
the plaintiff if temporary injunction as prayed is not granted in favour
of the plaintiff in respect of the suit flat. For these reasons, by answering
point Nos.(i) to (iii) accordingly, I pass the following order.
O R D E R
Notice of Motion No.4879/2019 is partly allowed as under;
Pending final disposal of the Suit, defendant Nos.1 and 2
are temporarily restrained from creating third party interests in
Suit flat No.B/8, Ratna Co-Op Hsg. Society Ltd; 186, Veer
Savarkar Marg, Mahim, Mumbai.
Date : 16/03/2022.
Dictated on : 16/03/2022. (P.P.RAJVAIDYA)
Checked on : 21/03/2022. Judge, C.R.No.62,
Signed on : 21/03/2022. City Civil Court,
Mumbai.
-- 5 of 6 --
6 NM-4879-2019 in SU-3178-2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
21/03/2022 at 5.10 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 16/03/2022
Order signed by P.O. on 21/03/2022
Order uploaded on 21/03/2022
-- 6 of 6 --