Dismissed

Peter Edward Gomes (Since Deceased) John Edward Gomes v. Mark Edward Gomes

Bombay HC16 Jul 2012APP/183/2012

Case brief

AI extract

What is this about?

Cross appeals disposed of by clarifying that a restraint order on merged flats applies to the entire property. The court directed defendants to provide agreements for the merged flat and to keep yield accounts. It refused an order for depositing license fees with the court, noting the plaintiff would get appropriate relief if successful.

What did the court decide?

Clarification that restraint order applies to merged flat; directions for furnishing agreements and keeping accounts.

Peter Edward Gomes (Since Deceased) John Edward Gomes Vs… — Property and Title | Bombay HC (2012)

gopi

app-183 & 324-12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.183 OF 2012

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NOTICE OF MOTION NO.2192 OF 2007

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SUIT NO.2944 OF 2007

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Peter Edward Gomes (Since Deceased) & Ors.

..Appellants

Versus

Mark Edward Gomes

....Respondent

WITH APPEAL NO.324 OF 2012 IN

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NOTICE OF MOTION NO.2192 OF 2007 IN

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SUIT NO.2944 OF 2007

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Mark Edward Gomes ......Appellants Versus Peter Edward Gomes (Since Deceased) ...Respondents & Ors.

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Mr. Clive D'Souza for the appellants in appeal No.183 of 12 and for the respondents in appeal No.324 of 2012.

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Mr. Jayesh Bhat, for the appellant in Appeal No.324 of 2012 and for the respondent in Appeal No.183 of 2012.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, JJ. DATE : 16 July 2012.

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P.C.

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These cross appeals are filed against the order dated 16 January 2012 of the learned trial Judge of this Court disposing of the

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gopi

app-183 & 324-12

Notice of Motion No.2192 of 2007 in terms of the following directions:-

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“18. Taking an overall view of the matter, in my opinion, the following order would meet the ends of justice:

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(i) The Defendants shall not sell one flat viz: flat No.501 to any 3^rd party pending the hearing and final disposal of the suit, having regard to the fact that the Plaintiff is claiming /4^th share in the net yield of the suit property,

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(ii) The defendants are granted liberty to apply to the Court within 6 weeks from today, in the event they desire that the aforesaid restraint order should operate in respect of flat No.502 instead of flat No.501;

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(iii) The defendants shall furnish copies of the agreement/writing, if any, as and when entered into by them in future with the licensee/occupant of the said flats viz. Flat Nos.501 and/or 502, to the plaintiff within two weeks from the execution thereof, so as to facilitate the plaintiff to keep account of any yield from the said flats.”

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Appeal No.183 of 2012 is filed by the defendants and appeal No.324 of 2012 is filed by the plaintiff.

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Learned counsel for the defendants states that since flat Nos.501 and 502 are merged into one flat the restraint order cannot operate in respect of flat No.501 or 502.

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As far as the above grievance is concerned, since both the flats are merged into one flat the restraint order passed by the learned trial Judge would necessarily apply to the entire flat i.e. flat Nos.501 and 502 as merged into one flat.

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app-183 & 324-12

In view of the above clarification, the leave and license agreement which may be executed would necessarily be in respect of the merged flat and, therefore, the defendants shall furnish copies of the agreement in writing regarding giving the merged flat on leave and license basis. The defendants shall also keep accounts of yields received from the said merged flat. The defendants shall also furnish copy of the agreement to the plaintiff as directed by the trial Judge.

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Coming to the appeal filed by the plaintiff, learned counsel for the plaintiff submits that the license fees which will be received by the defendants should be deposited with the Prothonotary & Senior Master of this Court so that in case the plaintiff succeeds in the suit the plaintiff may not have to take out other proceedings for recovery of the license fees.

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Having regard to the fact that the plaintiff has claimed only 1/4^th share in the suit property and that the suit property is a valuable flat which is now a merged flat having flats No.501 and 502, ultimately, if the plaintiff succeeds in the suit, the relief can be moulded appropriately and plaintiff will not be deprived of the fruits of the decree merely because the defendants would be giving the merged flat on leave and license basis.

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Both the appeals are accordingly disposed of in terms of the above clarification.

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CHIEF JUSTICE

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(N.M. JAMDAR, J.)

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Peter Edward Gomes (Since Deceased) John Edward Gomes v. Mark Edward Gomes

Case brief

What is this about?

What did the court decide?

Peter Edward Gomes (Since Deceased) John Edward Gomes v. Mark Edward Gomes

Case brief

What is this about?

What did the court decide?

What the court decided

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