1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4644 OF 2007 IN SUIT NO.1326 OF 2007 Sanika A. Athavle @ Sabia Ali Dinath ...Plaintiff Vs. Aftab Moeen Shaikh ...Defendant Mr. Rajan Kakkar i/b. Aarkey Legal for Plaintiff Mr. S.R. Saudagar for Defendant CORAM: SMT.ROSHAN DALVI, J. DATED: 7TH OCTOBER, 2008 P.C. 1. The Plaintiff has sued upon the agreement between the parties dated 27th September, 2006. It is the case of the Plaintiff that she has paid consideration for the purchase of the flat referred to in the agreement and was to be put in possession thereof. 2. The suit is for specific performance of this aforesaid agreement and other incidental reliefs. The suit was filed in January, 2007. The Plaintiff obtained ad-interim order on 5th January, 2007, in the Court vacation, when, the 2 Defendant was present, inter alia agreed not to sell, transfer or create any third party rights in the suit premises. 3. It is the Plaintiff' s case that the Defendant has inducted one Ms. Kausar in the suit flat. 4. The Plaintiff claims that she was put in possession of the suit flat. The Plaintiff' s articles are in the part of the suit flat have been kept. 5. This Notice of Motion is taken out upon breach of the oder of injunction dated 5th January, 2007. The Plaintiff has applied for reliefs to be granted under the provisions of Order XXXIX Rule 2 A of the C.P.C. 6. The Defendant has denied the breach. The Defendant claims that he continues in actual possession of the suit flat and has not inducted any other person. 7. Court Commissioner came to be appointed to record upon the possession of the parties in the suit flat. His report dated 19th December, 2007 has been filed. This report, however, does not carry the case either of the parties any further. The report has been challenged by the parties who 3 seek to show certain aspects of the fact of actual possession independently of the report. In the absence of evidence of the parties and their cross examination the aspect of actual possession cannot be fully determined. The case of willful breach, therefore, is not made out. However the Defendant has sought to produce certain electricity bills to show her actual possession in the suit premises after the order dated 5th January 2007. The electricity bills do show electricity being used. These bills cannot show who was in actual possession. All that can be seen is that the flat was occupied and electricity was consumed by whoever was in the flat. 8. The Defendant claims to have been in possession for the last 10 years. The Defendant was directed to produce electricity bills of the prior years. None is produced. The rate of consumption of electricity by the Defendant over a period of years is not shown. 9. At present on the oral statement of the Plaintiff' s Advocate that the Plaintiff saw one Ms. Kausar in the suit premises a willful breach and default of the order dated 5th January, 2007 cannot be stated to be amply made out to merit the reliefs prayed for being granted. 4 10. It is clarified that it is the case of the Defendant that he alone is in actual possession of the suit premises. The Defendant' s specific statement that he alone continues in actual use, occupation and possession of the suit premises pending the suit shall be taken into account at the time of the final relief. 11. The Defendant is directed not to create any third part rights, sell, transfer, encumber or allow any one to be in possession of the suit premises pending the suit. 12. There shall be no other order in Notice of Motion. (SMT. ROSHAN DALVI, J.)