Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M. No.88/2018 ..1.. Suit No.2884/2016
CNR No.MHCC010002402018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.88 OF 2018
IN
SUIT NO.2884 OF 2016
Mr. Kondiba Sheku Kshirsagar .. Plaintiff
Versus
Mr. Arun Shankar Kshrisagar .. Defendant
Mr. P. N. Kulkarni, advocate for plaintiff
Mr. Khanvilkar, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 18th March, 2019.
ORAL ORDER
This notice of motion is taken out for temporary injunction
restraining defendant, his agents, servants, representatives or any
person/s claiming through him from dispossessing, disturbing and/or
removing plaintiff from suit premises i.e. Old B.D.D. Chawl No.15A,
Room No.75, B.J. Devrukhkar Road, Naigaon, Dadar (East), Mumbai 14
and also from preventing villagers of Kshirsagar community, Village
Awali, Taluka Panhala, District Kolhapur from entering into suit
premises for rest and temporary stay in any manner, without following
due process of law.
2. It is the contention of plaintiff that since 1981, he is in use,
occupation and enjoyment of suit premises. He is having documents like
Adhar card, Pan card, election identity card, disability card dated
04.08.2010 to show that he is in occupation of suit premises. Suit
-- 1 of 6 --
N.M. No.88/2018 ..2.. Suit No.2884/2016
premises is rental premises obtained from BDD Authorities for stay and
rest of villagers belonging to Kshirsagar community, Village Awali,
Taluka Pahala, District Kolhapur. Till 1968, suit premises stood in the
name of Rama Kshirsagar, from 12.03.1968 till 1994 it stood in the
name of Arun Kshirsagar and from 11.10.1994, suit premises stands in
the name of defendant. For convenience of villagers, Awalikar Baudh
Grammashta Mandal, Mumbai has been formed. Villagers named in
plaint para 4 for time being also used to stay in suit premises. Plaintiff
never prevented those villagers for stay and rest in suit premises.
3. It is further contended that though suit premises stands in the
name of defendant but he is not residing in the said suit premises. The
defendant taking advantage of fact that suit premises stands in his name
is bent upon dispossessing plaintiff from suit premises forcibly. On
26.10.2016 at about 10.00 a.m. defendant along with two to three anti
social elements visited suit premises when plaintiff was present and
threatened him that he would dispossess him from suit premises
forcibly. He tried to tell defendant that he is also having legal right in
suit premises but defendant was in no mood to listen and extended
threat of dispossession to plaintiff. Therefore, plaintiff has sought relief
in above terms.
4. Defendant filed his reply to notice of motion and opposed it. It
is contended that plaintiff is intending to grab suit premises for his own
use and to get transferred the same in his name. Building in which suit
premises is situated is in process of redevelopment so plaintiff has
desire to get suit premises transferred in his personal name. It is further
contended that plaintiff has not made out any cause for grant of any
relief as sought. Hence, it is prayed that notice of motion be dismissed.
-- 2 of 6 --
N.M. No.88/2018 ..3.. Suit No.2884/2016
5. Heard respective counsel for parties. They advanced argument
in accordance with respective contention of parties.
6. In view of rival contention of parties following points arise for
my determination and I have recorded my findings to same with
reasons to follow as under :
POINTS FINDINGS
1. Whether plaintiff has got primafacie case? ...No
2. Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is refused?
...No
3. Whether balance of convenience lies in favour of
plaintiff?
...No
4. What order? As per Final
Order
REASONS
As to point nos.1 to 3
7. It is pertinent to note that present suit has been filed in the year
2016 and issues have been framed by my learned Predecessor on
17.06.2017. When matter was posted for recording evidence plaintiff
has taken out present notice of motion. In affidavit filed in support of
notice of motion he has not mentioned any cause of action subsequent
to filing of suit which made him to file present notice of motion. He has
placed reliance upon contention in the plaint itself. He has not made
out as to what was urgency in taking out present notice of motion when
suit was fixed for recording his evidence. This itself indicate that
plaintiff wants to delay the prosecution of instant suit. Above conduct
of plaintiff cannot be ignored while deciding present notice of motion
because he is seeking discretionary relief of injunction.
-- 3 of 6 --
N.M. No.88/2018 ..4.. Suit No.2884/2016
8. Documents filed by plaintiff are not of significance for the
purposes of his alleged possession over suit premises at the time of
filing present suit. He has not filed any document showing his
continuous possession over suit premises as averred by him. On the
other hand, documents filed by defendant particularly copy of
information provided by Superintendent of BDD Chawl dated
27.08.2015 shows that suit premises stands in the name of defendant
on rental basis since 1994. Defendant has also filed copy of electricity
bill dated 28.12.2016 which shows that electricity meter at suit
premises stands in the name of defendant. Defendant has also filed rent
receipt for the period from April2016 to March2017 to show that he
has paid rent relating to suit premises. Although plaintiff has filed copy
of election Icard, ration card and Adhar card shown to have been
issued at the address of suit premises but at the same time defendant
has also filed copy of ration card and Adhar card to show that those
were issued to defendant at the address of suit premises. But it is not in
dispute that tenancy of suit premises stands in the name of defendant
from 11.10.1994. That being so, much weight cannot be given to the
documents filed by plaintiff. Plaintiff has not brought prima facie
material to establish his possession over the suit premises. He has also
failed to establish that balance of convenience lies in his favour and that
he will suffer irreparable loss in case relief sought is refused.
9. It is pertinent to note that plaintiff has also claimed relief
seeking temporary injunction that defendant be restrained from
preventing villagers of Kshirsagar community, Village Awali, Taluka
Panhala, District Kolhapur from entering into suit premises for rest and
temporary stay in any manner, without following due process of law.
There is nothing on record to show that he has filed instant suit in
-- 4 of 6 --
N.M. No.88/2018 ..5.. Suit No.2884/2016
representative capacity or sought permission of the Court to sue on
behalf of or for the benefit of all persons allegedly interested in suit
premises as per Order I Rule VIII of CPC. That being so, he is not
entitled to claim also relief on behalf of other persons allegedly
interested in the suit premises. As already pointed out above that
plaintiff has failed to prove prima facie case, balance of convenience lies
in his favour and that, he will suffer irreparable loss if relief sought is
refused, I answer point Nos.1 to 3 in negative.
In view of my findings to point nos.1 to 3 in negative notice of
motion taken out by plaintiff is liable to be dismissed. Hence, pass
following order.
ORDER
Notice of Motion No.88 of 2018 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 18.03.2019 Gr. Bombay
Typed on : 18.03.2019
HHJ signed on :
-- 5 of 6 --
N.M. No.88/2018 ..6.. Suit No.2884/2016
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.03.2019, 4.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
18.03.2019
JUDGMENT/ORDER signed by P.O.
on
19.03.2019
JUDGMENT/ORDER uploaded on 19.03.2019
-- 6 of 6 --