Final Order 1

Order Details: Notice of Motion
Pdf Text: ... 1 … Order in NM No. 4874 of 2019
MHCC010133272019 Presented on : 19.12.2019
Registered on : 19.12.2019
Decided on : 23.12.2024
Duration : 05 00 04
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY, AT BOMBAY
NOTICE OF MOTION NO. 4874 OF 2019
IN
SUIT NO. 3273 OF 2019
(CNR NO. MHCC010133272019)
1
2
2(a)
2(b)
Mr. Bharat Damodar Indulkar
Aged about 62 years, Occ : Retired
Residing at : Room No.2, Bhavan Khana
Building No.24, Ground floor,
Jaganath Shankar Sheth Road,
Ramkrishna Shrikrishna Navalkar Lane,
Chhira Bazar, Tadwadi, Mumbai 400 002.
Mrs. Manisha Manohar Lokhande
Aged about : 70 years, Occ : Housewife
R/at : Parasnath Chawl, Golibar 4th Road,
Santacruz (E), Mumbai 400 055.
Yogesh Manohar Lokhande
Age about 50 years, Occ : Service
R/at Gourakhnath Bhaiyachi Chawl, Room
No. HH576, 2/3, Golibar, 4th Road,
Santacruz (E), Mumbai 400 055.
Mayur Manohar Lokhande
Age about 46 years, Occ : Not known
R/at Gourakhnath Bhaiyachi Chawl, Room
No. HH576, 2/3, Golibar, 4th Road,
Santacruz (E), Mumbai 400 055.
… (Since deceased)
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2(c)
2(d)
3
Gauri Pramod Sakpal
Age about 37 years, Occ : Housewife.
R/at : Room No.2, Shivdarshan
Apartment, Nooribaba Dargah Road,
Near Chandiwala complex, Chandanwadi,
Thane (West), Thane-400601.
Prachi Jadhav
Age about 38 years, Occ : Housewife
R/at Chawl NO.B/35, Room No.20,
Bidvel Apartment, Bidwewadi, Bibwewadi
Road, Gali No.7, Near Pasalkar Bhawan,
Pune 411 037
Pratibha Prabhakar Salunke
Age about 59 years, Occ : Housewife
R/at : Ganesh Darshan, Sudeshwar Talao,
First Floor, Room No.106, Khopat Road,
Thane (W) 400 601.
…. Plaintiffs
Versus
1
2
Mr. Sadanand Damodar Indulkar
Aged about : 50 years, Occ :Service
R/at : Damodar Niwas,
Varasha Gaon, Panvel
Jyotsna Sadanand Indulkar
Age about 40 years, Occ : Housewife
R/at Damodar Niwas,
Varasha Gaon, Panvel …. Defendants
CORAM : HIS HONOUR THE PRINCIPAL JUDGE,
SHRI A.SUBRAMANIAM
C.R.NO..
: 19
DATE : 23rd DAY OF DECEMBER, 2024
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Appearances :-
Adv. Akhilesh Upadhyay, Ld. Counsel for plaintiffs.
None for defendants.
ORAL ORDER
1. By present Notice of Motion, the plaintiffs contend that the
present suit has been filed for declaration and permanent
injunction with regard to suit property. It is further contended
that suit property is tenanted room standing in name of plaintiff
and she executed registered will in favour of plaintiffs. Defendant
No.2 is brother of plaintiff No.1. The relations were not good
between them and they were separated permanently and shifted
to Panvel. The suit papers were forwarded and matter was
adjourned to 06.05.2020. There was National Lockdown. The
plaintiff was constrained to reside at Thane with plaintiff No.3. It
is learnt that defendant No.1 has visited the premises and opened
the lock and thrown out the articles and documents. Defendant
No.1 has put the lock on door forcibly and defendant No.2
threatens to lodge false complaint if the occupation is continued
taking disadvantage of the Lockdown, defendant No.1
deliberately kept articles inside the room. Therefore, it is prayed
that defendant No.1 and 2 or any person claiming through
defendants be ordered to take cupboard, almari, tables, etc of the
plaintiff No.1 which are kept outside suit room be kept inside the
suit room. Court Commissioner be appointed to inspect and make
inventories. Plaintiffs therefore prayed for removal of lock put by
defendant No.1 to said premises and restrain occupation of
plaintiff for said premises and appoint Court Commissioner.
2. Said Notice of Motion is challenged by reply contending that
there are no documents to show plaintiff being on occupation of
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said room. It is further contended that in view of the
circumstances of the case, as they are no occupation, reliefs
should not be granted.
3. None present for the defendant to argue. Considering age of
Notice of Motion, heard Ld. Counsel for plaintiffs. Defendant
No.2 is present but unable to proceed with the matter.
4. Heard Ld. Counsel for the plaintiff. He pointed out that there is
no denial. There is will executed in favour of plaintiffs by the Late
Mother and considering facts and circumstances of the case, he
should be permitted to enter peacefully and occupy the premises
as he is the sole legal entitled person to occupy premises. The
defendants have encroached and put their lock and are
threatening. Hence, reliefs be granted as prayed.
5. None for the defendants.
6. Perused the Notice of Motion. Heard. Considered the submissions
advanced. Following points arise for my consideration and I
answer the same as under for the reasons stated hereinafter;
Sr.
No.
POINTS FINDINGS
1. Whether prima-facie case is made out
by the plaintiffs ?
:: In the negative.
2. Whether balance of convenience lies
in favour of the plaintiffs ?
:: In the negative.
3. Whether irreparable loss will be
suffered by the plaintiffs if the prayers
in Notice of Motion are denied?
:: In the negative.
4. What order ? :: As per final order.
As to Point No.1
7. As regards, entire contention, a specific query was placed with
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regard to period and proof of occupation of said premises which
would be material aspect in this regard. It is stated that there is
only one document available which is Voter Card. Said Voter Card
is of 1995. Allegedly, there are voting slips of 2019 but there is no
other document to support the contention of plaintiffs to show
residence in said premises in the period when suit was filed. In
absence, thereof except the will which has to yet undergo test of
trial, there is no document to show that plaintiff was occupying
the premises. There are no affidavit of neighbours in this regard.
In such circumstances, the plaintiffs fail to establish a prima-facie
case based on the facts and circumstances of the case by standing
on their own legs. Much was pointed out of weakness of
defendant’s case, but that would not help unless plaintiff establish
their case. Hence, I answer Point No.1 in the negative.
As to Points No.2 and 3
8. Apparently, since 2019, same proceedings are continuing and
reliefs have been claimed. Alleged goods are said to be lying
outside house from more than four years. In such circumstances,
it does not appear that goods are lying outside still and thus no
balance of convenience or irreparable loss would be caused to
plaintiffs. Next prayer is appointment of Court Commissioner.
There is no dispute with regard to existing structure. The aspect
of articles inside at this stage, does not establish any
circumstances and Court commissioner cannot be appointed to
collect evidence. Hence, that relief also cannot be granted.
Hence, I answer Points No. 2 and 3 in the negative.
As to Point No.4
9. In view of findings to Points No.1, 2 and 3 in the negative,
plaintiffs are not entitled for any reliefs. Hence, I pass the
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following order.
O R D E R
Notice of Motion No. 4874 of 2019 in Suit No.3273 of 2019 is
rejected and disposed off accordingly.
DATE : 23.12.2024 (A.SUBRAMANIAM)
PRINCIPAL JUDGE
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711).
Dictated and transcribed on : 23.12.2024.
Checked and signed on : 24.12.2024.
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(Grade-III)
DATE : 24.12.2024 at 06.55 pm Mr. Mohit M. Patange
Name of the Judge (with Court no.) : SHRI A.SUBRAMANIAM. C.R.NO.19.
Date of pronouncement of judgment/order : 23.12.2024
Judgment/order signed by the P.O. on : 24.12.2024
Judgment/order uploaded on : 24.12.2024
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