Final Order 2

Order Details: Notice of Motion
Pdf Text: MHCC010013432020
IN THE BOMBAY CITY CIVIL COURT AT GR. MUMBAI
NOTICE OF MOTION NO. 514 OF 2020
IN
SUIT NO.1199 OF 2020
Sarika Nandkishore Tiwari … PLAINTIFF
Versus
Sanjay Nandkishore Tiwari
Aruna Sanjay Tiwari and another
… DEFENDANTS
APPEARANCES:
Mr. Mahesh Tiwari, learned advocate for the plaintiff.
None for the defendant.
CORAM: V. M. SUNDALE, ADHOC JUDGE
COURT ROOM NO.02
DATED: 07th MAY, 2026
ORDER
01. The plaintiff, by the present Notice of Motion, seeks interim
and ad-interim injunction restraining the defendant and persons
claiming through him from interfering with or dispossessing her from
the suit premises at Sion, Mumbai, without due process of law, and for
protection of her possession pending disposal of the suit.
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(2)
02. The plaintiff claims to be in use, occupation, and possession
of the suit premises where she carries on business of tours and travels in
the name of M/s Vijayant Travels, which was originally established by
her deceased father. It is her case that after the demise of her father, she
and the Defendant, being legal heirs, continued to manage different
branches of the business, and the suit premises remained in her
exclusive possession since 2017. The plaintiff relies upon documents
such as electricity bills, Gumasta license, leave and license agreements,
and photographs to show her possession. It is alleged that in January
2020, the Defendant attempted to forcibly dispossess the plaintiff’s
agent from the suit premises and created disturbances, compelling the
Plaintiff to approach the police authorities. The police, however, treated
the dispute as civil in nature. The Plaintiff asserts that the Defendant
has no right to evict her except by due process of law and that there is a
continuous threat of dispossession. On these grounds, the present suit
and Notice of Motion have been filed seeking protection of possession.
03. During the pendency of the present suit, the original
defendant expired and his legal representatives have been duly brought
on record. However, despite being afforded sufficient opportunity, the
legal heirs of the deceased defendant failed to file their reply to the
Notice of Motion and remained absent at the time of hearing.
Accordingly, the plaintiff was heard, and the Notice of Motion is being
decided.
04. Mr. Mahesh Tiwari, learned advocate for the plaintiff,
submits that the plaintiff has been in settled, continuous, and lawful
possession of the suit premises since the year 2017 and has been
carrying on business therein either personally or through her duly
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Order (3) Notice of Motion No.514 of 2020
In S.C. Suit No.1199 of 2020
authorized agents. He contends that such possession is duly supported
by cogent documentary evidence including licenses, agreements, and
official records placed on record. It is further submitted that even
assuming, without admitting, that the defendant has any claim in
respect of the suit premises, the defendant cannot resort to self-help or
take the law into his own hands to dispossess the plaintiff without
following due process of law. The learned counsel urges that the acts of
the defendant in threatening the plaintiff’s agent and attempting to
remove goods from the premises clearly demonstrate an imminent and
real threat of forcible dispossession. He submits that the balance of
convenience is entirely in favour of the plaintiff, who is in actual
possession, and any interference therewith would seriously prejudice
her running business and livelihood. It is further contended that the
plaintiff has established a strong prima facie case and that denial of
interim protection would result in irreparable loss and multiplicity of
proceedings.
05. In view of the contentions and submissions advanced on
behalf of the plaintiff, and considering that the Notice of Motion
proceeded ex-parte as the legal heirs of deceased defendant failed to
contest the same despite opportunity, the following points arise for my
determination, and my findings thereon are recorded hereinafter with
reasons.
Sr.No. POINTS FINDINGS
01. Whether the plaintiff has established a prima
facie case for grant of interim injunction? Yes
02. Whether the balance of convenience lies in
favour of the plaintiff? Yes
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(4)
03. Whether the plaintiffs would suffer
irreparable loss and injury if the relief is
refused? Yes
04. What order? As per final
order
REASONS
AS TO POINT NO. 1:
06. The plaintiff has placed on record material indicating her
possession of the suit premises, including business licenses, agreements,
and photographs showing her use and occupation since 2017. There is
no reply filed by the defendant disputing these assertions, and therefore
the pleadings of the plaintiff remain uncontroverted at this stage. The
documents prima facie supports the case that the Plaintiff is in settled
possession of the suit premises and is carrying on business therein
through her agent. The law is well settled that possession, even if
disputed, cannot be disturbed except by due process of law. The Plaintiff
has also narrated specific incidents in January 2020 indicating attempts
by the Defendant to interfere with such possession. In absence of any
rebuttal, these averments assume significance at the interim stage. The
Court is not required to conduct a detailed trial but only to assess
whether a triable issue exists. In the present case, the material placed
on record clearly discloses a substantial question requiring adjudication.
Hence, the Plaintiff has successfully established a prima facie case.
Accordingly, point No.1 is answered in affirmative.
AS TO POINT NO. 2:
07. The balance of convenience tilts in favour of maintaining
status quo in respect of possession of the suit premises. The Plaintiff is
already in possession and carrying on business activities, and any
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Order (5) Notice of Motion No.514 of 2020
In S.C. Suit No.1199 of 2020
disturbance thereto would disrupt her livelihood and business
operations. On the other hand, no prejudice would be caused to the
defendant if he is restrained from taking forcible action, as he always
has the remedy of approaching a competent court for appropriate relief.
The comparative mischief or inconvenience which is likely to be caused
to the Plaintiff if injunction is refused is far greater than that which may
be caused to the defendant if injunction is granted. Preservation of
existing possession is a recognized equitable consideration while
granting interim relief. Since the defendant has not come forward with
any defence at this stage, there is no material to tilt the balance
otherwise. Therefore, the balance of convenience clearly lies in favour
of the Plaintiff. Accordingly, point No.2 is answered in affirmative.
AS TO POINT NO. 3 AND 4:
08. The plaintiff has demonstrated that she would suffer
irreparable loss if interim protection is denied. The business carried on
from the suit premises is a running concern and any forcible
dispossession would not only result in loss of income but also damage
to goodwill, which cannot be adequately compensated in monetary
terms. Further, the threat of repeated interference by the Defendant
creates a situation of uncertainty and instability affecting the plaintiff’s
rights. The nature of injury apprehended is such that it cannot be
undone once caused. It is also relevant that the defendant’s alleged acts
indicate an intention to bypass legal remedies and take possession by
force. Courts have consistently discouraged such conduct and protected
parties in settled possession. In absence of interim relief, the very
purpose of filing the suit would be defeated. Accordingly, the plaintiff
has established the likelihood of irreparable injury. In view of the above
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(6)
findings, all three requirements for grant of interim injunction, namely
prima facie case, balance of convenience, and irreparable loss, are
satisfied in favour of the plaintiff. The plaintiff is therefore entitled to
interim protection as prayed. In view of foregoing discussion, I
answered Point No. 3 in affirmative and in reply to Point No. 4, the
following order is passed.
ORDER
1. The Notice of Motion No. 514 of 2020 in Suit No. 1199 of
2020 is allowed.
2. Pending the hearing and final disposal of the suit, the
defendants, their agents, servants or any person claiming
through or under them are hereby restrained from
interfering with or disturbing the plaintiff’s possession of
the suit premises and from creating any third-party rights
therein.
3. It is clarified that the observations made in this order are
prima facie in nature and confined to the adjudication of
the present Notice of Motion.
4. Costs of the Notice of Motion shall be in the cause.
5. The Notice of Motion No. 514 of 2020 in Suit No. 1199 of
2020 is accordingly disposed of.
Date: 07.05.2026
(V. M. Sundale)
Ad-hoc Judge
Bombay City Civil Court,
Gr. Mumbai
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Order (7) Notice of Motion No.514 of 2020
In S.C. Suit No.1199 of 2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
07.05.2026 05.00 p.m. Shilpa P. Pawar
Stenographer - Grade IUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Adhoc Judge
Shri. V. M. Sundale
Court Room No.2
Date of Pronouncement of ORDER 07.05.2026
ORDER signed by P. O. on 07.05.2026
ORDER uploaded on 07.05.2026
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