NMS 1038-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1038 OF 2009 IN SUIT NO.614 OF 2009 Surendra Manoharlal Jain .. Plaintiff Versus Ravendra Manoharlal Jain & Ors. .. Defendants Mr.S.Malik i/b. Singhania & Company for plaintiff Mr.M.S.Doctor i/b. Hariani & Co. for defendant No.1 Mr.A.A.Naber i/b. Hariani & Co. for defendant Nos. 2 and 3. CORAM : S.C.Dharmadhikari, J. Date : 23rd August 2010. P.C. 1] The suit is filed by the plaintiff for a declaration that together with defendant Nos. 1 to 3, he is also legal heir and representative of the deceased Manoharlal Jain and that he has 1/4th undivided share, right, title and interest in the property of the deceased. 2] The schedule to the plaint which is marked as Annexure A refers to a flat at Mumbai. NMS 1038-09 2 3] It is stated that the interim reliefs are claimed in furtherence of the declaration and consequential prayers. There is apprehension that the flat, more particularly described in the schedule – Annexure A to the plaint, will be dealt with and disposed of to the detriment of the plaintiff’s right. 4] Defendant No.1 has filed an affidavit in reply and the stand taken is that the suit claim is false, frivolous and vexatious. Plaintiff is residing abroad for last more than three decades and he had never raised any claim in respect of the flat. Further, the defendant No.1 is residing in the said flat since 1985 and the suit is filed in the year 2009. 5] Having heard the parties at some length, it was indicated to Mr.Doctor appearing for defendant No.1 as to whether the defendants are contemplating disposing of or creating any third party rights in respect of the flat in any manner. In all fairness Mr.Doctor after taking instructions, makes a statement that defendant No.1 is residing in the flat along with his family since 1985. He continues to reside in the said flat till date. NMS 1038-09 3 6] In my view, keeping open all the pleas and contentions of both sides, including on the bonafides of the claim of the plaintiff, interest of justice would be sub-served if the statement of defendant No.1 to the following effect at this interim stage, is accepted and the motion is allowed accordingly. Hence, following order:- (a) Mr.Doctor and Mr.Naber state that defendants will not alienate, transfer, create third party rights or part with possession of the suit flat in any manner without seeking prior leave of this Court. In the light of this statement, which is made without prejudice to the rights and contentions of all parties, no interim order is required to be made in the suit. Statement is accepted as undertaking to the Court. Motion disposed of in terms thereof. No costs. (S.C.DHARMADHIKARI, J)