IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 260 OF 2006. OF MOTION NO. 260 OF 2006. OF MOTION NO. 260 OF 2006. IN IN IN SUIT SUIT SUIT NO. 208 OF 2006. NO. 208 OF 2006. NO. 208 OF 2006. Mandlik Jayantilal Jhaveri. ... Plaintiff. Versus. Narendra Jayantilal Jhaveri & others. ... Defendants. Shri Pratik Sakseria i/by M/s.Bilawala & Co. for the Plaintiff. Shri Sandip Shah for the Defendants. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 12th March, 2007. : 12th March, 2007. : 12th March, 2007. P.C.: P.C.: P.C.: 1. Heard the learned Counsel appearing for the Plaintiff in support of the Notice of Motion and the learned Counsel appearing for the Defendants. 2. The Plaintiff and the 1st Defendant are real brothers. The second Defendant is the wife of the first Defendant and the third Defendant is the son of the first Defendant. The dispute in the suit relates to a residential flat being Flat No.4in Victor Villa, 5, Babulnath Road, Mumbai-7, wherein the first prayer is for declaration that the Plaintiff is entitled to use, occupy and possess in common the suit flat and the Defendants and each one of them has no right to interfere with the use of the suit flat by the Plaintiff and his family members. The second prayer is for declaration that the Plaintiff is the absolute owner of : 2 : 2 : 2 : the movealbes and articles listed in Exh.C annexed to the plaint. The third prayer is for a perpetual injunction restraining the Defendants from interfering with the possession of the suit flat by the plaintiff and his family members without following the due process of law and the other substantive prayer is for payment of compensation. The first prayer made in the Notice of Motion is for injunction restraining the Defendants from removing or interfering with the right of the Plaintiff and his family members of using the fixtures and furniture as well as articles lying and belonging to the Plaintiff in the suit flat the particulars of which are set out in the plaint. The second prayer is for appointment of Court Receiver in respect of the suit flat. 3. By an order dated 1st February 2006, this Court declined to grant ad-interim relief in favour of the Plaintiff. However, this Court recorded the statement made by the Counsel for the Defendants that no one has threatened the Plaintiff to dispossess him from the suit premises. 4. At the outset the learned Counsel appearing for the Defendants states that the Defendants will not dispossess the Plaintiff and his family members without following the due process of law. The statement is : 3 : 3 : 3 : accepted. In view of this statement no case is made out for grant of prayer (b) of the Notice of Motion regarding appointment of Receiver. Even while passing the ad-interim order on 1st February 2006, this Court observed that the suit flat is in joint occupation of both the parties and hence the prayer for appointment of Court Receiver cannot be granted. 5. So far as the first prayer is concerned, there is serious dispute about the articles listed in Exh.C to the plaint. The contention of the Defendants is that some of the articles mentioned therein have already been removed by the Plaintiff himself. Considering the nature of the Articles mentioned in Exh.C, it is difficult to grant any interim relief as regards the said articles. As observed by this Court while passing ad-interim order, if the Defendants misappropriate any articles, it is open for the Plaintiff to file appropriate proceedings for misappropriation of the articles. Hence no ground is made out for any grant of interim relief in terms of prayer clause (a). 6. Hence the Notice of Motion is disposed of by the following order: i) Statement made by the learned Counsel for the Defendant that they shall not : 4 : 4 : 4 : dispossess the Plaintiff from the suit premise is accepted. ii) The other prayers made in the Notice of Motion are rejected. iii) No order as to costs. Judge. Judge. Judge.