1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3335 OF 2008 IN SUIT NO.1970 OF 2005 Vivek Parshotam Bajaj ..Plaintiff V/s. Anil Parshotam Bajaj & ors ..Defendant Mr.V.V.Khemka, Advocate, for the plaintiff Mr.Anil P. Bajaj, applicant/defendant No.1 in person Mr.Anil D'souza, Advocate, for the defendant No.4 Mr.Simil Purohit a/w.Ms.Janhavi Durve i/b.K.Ashar & Co., Advocate, for the defendant No.3 Mr.Pankaj Shah, Advocate, for the defendant No.5 Mr.Anand Talreja, Advocate, for the respondent No.6 CORAM : R.M.SAVANT, J. DATE : 18TH OCTOBER, 2008 P.C. . The above Notice of Motion has been filed by the original defendant No.1 in the suit, who is the brother of the original plaintiff. The following reliefs are prayed for in the above Notice of Motion. 2 (a) That the plaintiff should be directed to give the flat on leave and license basis and the compensation collected to be divided equally between the plaintiff and defendant No.1 after deducting the maintenance charges. (b) Alternatively if the plaintiff is not in a position to do as above in 15-20 days as he stays in America then the defendant No.1 be allowed to put the flat on leave and license basis the defendant No.1 will pay the plaintiff 50% of the rent received after deducting the maintenance charges. (c) To declare, divide, partitioning the property : Flat No.2, ground floor, Kailash Kutir, 630, Kharpali road, Mumbai – 400 054 by metes and bounds between the plaintiff and defendant No.1, giving them both equal, undivided right, title and interest, ½ share in respect thereof in the interest of justice and equity. 2. The plaintiff, Vivek Bajaj has filed a suit for partition in respect of the properties which are alleged to be the joint family properties. It appears that the flat in question, in respect of which the reliefs are sought was purchased by father Purshottam. The applicant/defendant No.1 therefore, claims ½ share in respect of the said flat in question and has therefore, prayed for the reliefs sought in the above Notice of Motion. 3. On behalf of the original plaintiff, Vivek Bajaj an affidavit-in- 3 reply dated 29th September, 2008 has been filed wherein the original plaintiff claims the ownership of the flat in question. It is further stated in the said affidavit-in-reply that the applicant/original defendant No.1 is not entitled to its possession. 4. The applicant i.e.original defendant No.1 had filed Notice of Motion No.2880 of 2005 claiming the reliefs to the extent of restraining the plaintiff from transferring, alienating or creating any third party rights in respect of the same flat in question. The said Notice of Motion was heard by a learned Single Judge of this Court and by Order dated 21st June, 2007, the learned Single Judge granted an injunction as prayed for to the present applicant in the said Notice of Motion. By the present Notice of Motion, the applicant/defendant No.1 has committed a volte face by now seeking a direction that the plaintiff should be permitted to give the flat on leave and license basis and that income there from should be aportioned between the plaintiff and the applicant in the ratio of 50% each. The applicant further 4 seeks a direction for a declaration, division and partition of the said flat No.2, ground floor, Kailash Kutir, 630, Kharpali road, Mumbai – 400 054. 5. I have heard the applicant-in-person, the learned counsel for the original plaintiff and the defendant No.3. Considering the Order passed by the learned Single Judge D.K.Deshmukh, J. dated 21st June, 2007 as also considering the facts that the dispute in this suit is yet to be adjudicated upon, the reliefs sought by the applicant in the above Notice of Motion, in my view, cannot be granted. The applicant/defendant No.1 cannot be permitted to change his stand as per his convenience. The above Notice of Motion is accordingly rejected. (R.M.SAVANT, J.)