Final Order 1

Order Details: Notice of Motion
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MHCC010012332019 Presented on : 01022019
Registered on : 01022019
Decided on : 23112021
Duration : Y M D
02 08 22
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by S. U. Hake)
NOTICE OF MOTION/489/2019
IN
COMMERCIAL SUIT NO.1069 OF 2021
(SHORT CAUSE SUIT NO.3385 OF 2019)
1. Mrs.Rukhsana Mohd. Ahsan Khan,
Age42
2. Mr.Mohammed Ahsan Rashid Khan,
Both adults, Indian Inhabitants of
Mumbai, having address at shop no.21
H.M.Maharashtra Bakery, Kurla Sai
Seva Coop. Hsg. Soc.,
Guru Nanak Nagar Part3, LG 3/3,
LBS Marg, Ghatkopar(West),
Mumbai400 086. ..Plaintiffs
Versus
1. Abdulla Mohammed Shaikh,
ageadult
2. Mahamood Saifuddin Shaikh,
Both adults, Indian Inhabitants
of Mumbai having address at
51, Tank Street, jivanbhai manzil,
1st floor, room no.40, nagpada,
Mumbai. ..Defendants
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__________________________________________________________
Ld. Advocate S.H.Patel for plaintiffs.
Ld. advocate Ditendra Mishra for defendant Nos.1 and 2
__________________________________________________________
ORAL ORDER
(Dated this 23rd day of November,2021)
1. This Notice of Motion is taken out by defendants
praying to reject the plaint as per Order 7 Rule 11 of C.P.C.
2. Averments in the affidvit filed alongwith notice of
motion may be summarized as under:
Suit is based upon leave and license agreement.
Plaintiffs are claiming to be licensee of the suit premises.
Therefore, provisions of Maharashtra Rent Control Act would be
applicable and Competent Authority would be competent to
decide the dispute between the parties. This Court has no
jurisdiction to try and entertain the suit.
3. No right is created in favour of plaintiffs by leave and
license agreement. Therefore, plaintiffs cannot claim protection
of possession on the basis of leave and license agreement. Suit is
bad for non joinder of landlord of the suit premises as party to the
suit. Plaint does not disclose a cause of action. It is contended in
paragraph No.8 of the plaint that defendant No.2 tried to enter
the suit premises on 12/12/2018 at about 6.00 pm. Defendant
No.2 was not present in Mumbai on that day. He returned to
Mumbai on 13/12/2018 by flight from Manglore. By making
these submissions, defendants prayed to reject the plaint.
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4. Plaintiffs by filing their reply affidavit submitted that
suit is not based upon leave and license agreement. Plaintiffs
have specifically mentioned the cause of action in the plaint.
Plaint discloses a cause of action. Suit is not barred by any law,
therefore plaint is not liable to be rejected under order 7 rule 11
of C.P.C.
5. Ld. Counsel for defendants submitted that plaintiffs
are merely seeking injunction against defendants. They are not
claiming for specific performance of agreement, therefore,
simplicitor suit for injunction would not be maintainable.
Plaintiffs were only licensee. After expiry of the license period,
they were supposed to vacate the suit premises. No right is
created in favour of plaintiffs on the basis of leave and license
agreement. Therefore, they cannot claim permanent injunction
against defendants. By making these submissions, Ld. Counsel
appearing for defendants prayed to reject the plaint as per order 7
Rule 11 of CPC.
6. Ld. Counsel for plaintiffs submit that plaintiffs were
in possession of the suit premises on the basis of leave and license
agreement, but, suit is not filed on the basis of leave and license
agreement. The period of leave and license agreement is already
expired in the year 2014. Defendants agreed to sell the suit
premises, accordingly, plaintiffs paid an amount of Rs.43 lacs to
defendants for purchasing the suit premises. Plaintiffs are
claiming to restrain defendants from alienating the suit premises
and they are further claiming to restrain defendants from
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dispossessing the plaintiffs without following due process of law
during pendency of suit. Plaint discloses a cause of action. Suit
is not barred by any law . By making these submissions, Ld.
counsel for defendants prayed to dismiss the notice of motion.
7. Considered the submissions advanced on behalf of
both sides. It is well settled that for deciding notice of motion
under order 7 rule 11, Court has to see the averments made in the
plaint. It is averred that plaintiffs acquired the possession of the
suit premises on leave and license agreement executed by
defendants. They are in possession of the suit premises since the
year 2011. The leave and license agreement was lastly executed
on 29/01/2014. From the averments in the plaint, it can be
inferred that on the date of filing suit, the plaintiffs were not
licensee. They have also not filed the suit on the basis of leave
and license agreement. Plaintiffs assert that defendants agreed to
sell the suit premises. They have paid an amount of Rs.43 lacs by
RTGS, cheque and cash towards purchase of suit premises. They
were ready to pay balance consideration amount to defendants.
They asked defendants to execute the agreement for sale.
Defendants avoided to execute the agreement for sale.
Defendants cannot create third party rights in the suit premises.
On 12/12/2018, defendant No.2 tried to enter the suit premises
and defendant No.2 tried to take forcible possession of the suit
premises. Thus, plaint discloses the cause of action to file suit for
injunction. Defendants contend that on 12/12/2018, defendant
No.2 was not in Mumbai and he returned to Mumbai from
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Manglore on 13/12/2018. It is well settled that appreciation of
facts is not permissible for deciding present notice of motion.
Court has to see as to whether plaint discloses cause of action or
not. Plaintiffs have specifically pleaded about cause of action and
thus plaint discloses the cause of action.
8. Defendants contend that suit is filed by plaintiffs as a
licensee and therefore this Court is not competent to try and
entertain the dispute between licensor and licensee. As discussed
supra, plaintiffs are not claiming injunction to protect their
possession on the basis of leave and license agreement, but, they
are claiming to be in possession of the suit premises after the
expiry of period of leave and license agreement on the basis of
oral agreement for sale. Therefore, Civil Court is competent to try
and entertain the suit.
9. It is further submitted by defendants that defendants
cannot be perpectually restrained from alienating the suit
premises. They cannot be prevented from entering into the suit
premises. Plaintiffs are claiming that defendants have agreed to
sell their suit premises. Plaintiffs are claiming perpectual
injunction restraining defendants from creating third party
interest in the suit premises. Plaintiffs further prayed for interim
injunction restraining defendants from causing obstruction over
their suit premises without following due process of law.
Plaintiffs are not claiming blanket injunction order. Plaintiffs
have already taken out notice of motion claiming interim
injunction restraining defendants from dispossessing the plaintiffs
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from the suit premises. Whether plaintiffs are entitled to claim
injunction or not, that aspect can be decided while hearing the
said notice of motion. For the purposes of this application, Court
is required to see as to whether suit is barred by any law. Suit
does not appear from the statement in the plaint to be barred by
any law. Defendants in the notice of motion prayed to reject the
plaint as per order 12 rule 6, order 15 rule 1 and 2 and order 23
rule 1 of C.P.C. All these provisions in the CPC mentioned in the
notice of motion are not relevant. They do not bar filing of the
suit. Thus, plaint discloses the cause of action to file the suit.
Therefore, notice of motion deserves to be dismissed. In the
result, following order:
ORDER
1. N/M No.489/2019 is dismissed.
2. No order as to costs.
3. N/M No.489/2019 is disposed of accordingly.
23/11/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 23/11/2021
Transcribed on : 23/11/2021
Signed on : 25/11/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
25/11/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
23/11/21
Judgment and order signed by P.O. 25/11/21
Judgment/order uploaded on 25/11/21
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