Jagdish Gangadhar Mirji And ANR v. Vijay Gangadhar Mirji

Ashwini

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION NO. 1644 OF 2019 IN SUIT NO. 154 OF 2020 Jagdish Gangadhar Mirji & Anr ...Plaintifs

Versus

Vijay Gangadhar Mirji ...Defendant Mr Bhavik Manek, with Ashok Paranjpe & Vishal J, i/b MDP & Partners, for the Plaintiffs.

Ms Shakuntala Joshi, with Nikita Pawar & Jalpa Pithadia, i/b SI Joshi & Co, for the Defendant.

CORAM: G.S. PATEL, J DATED:

PC:- 1.

No ad-interim reliefs.

2.

The Interim Application has been moved for ad-interim with very short notice.

Atul G.

Kulkarni 3.

There is absolutely no urgency. Even on the Plaintifss own by Atul G.

Kulkarni Date:

2021.03.18 11:10:28 +0530 showing, the Defendant is at the very least the owner of an undivided 1/3rd share, right, title and interest in fat No. 13, Modern Flats, 128, Nathlal Parekh Marg, Colaba, Mumbai 400 005. The Plaintifs also admit that the Defendant has been in exclusive use

and occupation of this fat for a very long time. Indeed, in the praecipe, the Plaintifs have stated that the Defendant has been using the fat 'gratuitouslys at least in respect of the Plaintifss claimed 2/3rd share therein. That this would make the Defendant a gratuitous licensee of the Plaintifs in respect of their 2/3rd share. The jurisdictional question that this raises is left open for the present.

4.

The learned Advocate for the Plaintifs incorrectly states that the Interim Application has been fled seeking a preliminary decree. It is not. There is no such prayer in the Interim Application and in any case there could not be. The prayers are as follows: to appoint a Commissioner or an Architect, and then for a final decree acknowledging the Plaintif alleged 66.66% ownership in a fat. This is supposed to be an order made pending the hearing and fnal disposal of the Suit as an interlocutory order. It is inconceivable that there could be any such interlocutory decree. 5.

Then there is an alternative prayer to sell the fat and divide the sale proceeds. Next is a prayer to appoint the Court Receiver and take forcible possession of the property. Finally there is prayer clause (d) for an injunction against the Defendant from dealing with the fat. In that regard, i.e. about the disposal of the fat by the Defendant, a statement was made by his previous Advocate before Menon J on 18th December 2019. This was continued by Ms Joshi for the Defendant on 16th December 2020. There has been absolutely no change of circumstances thereafter. Nothing warrants the moving of this Interim Application for such reliefs at this stage. In fact, the Plaintifs accept that both are living elsewhere and do not

have need of this fat for their own use. The Defendant, on the other hand, has no other residence.

6.

There is no prima facie case made out the Plaintifs. The balance of convenience is with the Defendant rather than the Plaintifs. No prejudice could conceivably be cause to the Plaintifs if the status quo as on the date of the institution of the suit continues. After all, what is being sought are mandatory interlocutory orders, and the law in that regard is abundantly clear: see: Dorab Cawasji Warden v Coomi Sorab Warden.

7.

Therefore, while accepting Ms Joshiss statement that her previous statement will continue, the other reliefs are refused. 8.

The Interim Application is dismissed.

9.

Liberty to both sides to fle an appropriate application, if there is change of circumstances so warrant.

10. Ms Joshi states that the written statement has already been fled. Accordingly, as a concession to the Plaintifs and at their request, I will take up the matter immediately for framing issues.

11. List the matter for framing issues on 25th March 2021. (1990) 2 SCC 117.

Personal Assistant of this Court. All concerned will act on (G. S. PATEL, J)