Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-434-18Suit 68-18
CNR NO.MHCC010017122018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 434 OF 2018
IN
S.C. SUIT NO. 68 of 2018
Smt. Neeta Bhagwan Lohakare ] .. Plaintiff.
Versus
1. Smt. Saraswati Nivruti Karpe ]
2. Mr. Shankar Prabhu Wanjale, ]
3. Mr. Govind Prabhu Wanjale. ] .. Defendants.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 3rd April, 2018.
Adv. for the plaintiff present.
Adv. for the defendants present.
ORDER
The plaintiff has taken out this notice of motion for
restraining the defendants from evicting the plaintiff from the suit
premises.
2. The plaintiff's case is that she is residing at the suit
premises. The Defendant No.2 is her sister and defendant Nos. 2
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and 3 are her brothers. Their mother Smt. Maktabai Prabhu
Wajale was residing as a tenant of premises. One Gopinath
Harischandra Tare was owner/landlord. Her mother was paying
rent and the rent receipt was in the name of the mother. Their
mother has shifted to Pune in the year 2005 and she died on
16/01/2006. In the year 2010 the defendant No.2 made an
application to delete the name of deceased mother and
transferred the ration card in the name of defendant No.3. On
12/08/2013defendant No.2 surreptiously entered into an
agreement with the landlord for redevelopment of the suit
premises. The said agreement was concealed from the plaintiff.
The plaintiff for a period of three months was shifted by the
landlord and the defendants to an alternate accommodation in
Worli. After redevelopment plaintiffs started residing in the suit
premises with her family. The suit premises stands in the name
of defendant No.3. Electricity bill is also in his name, but the
plaintiff is paying the electricity bill since 2014. On 03/01/2018
at about 2.00 p.m. the defendant No.1 alongwith some hirelings
came to the suit premises and threatened the plaintiff to evict
and handover the suit premises. Therefore, she has filed the
present suit.
3. The defendant No.2 and 3 appeared and filed their
reply. It is stated that the suit filed is false and without any rights
and there is suppression of material facts. The plaintiff is having
two houses situated at close distance from the suit premises. The
defendant Nos. 2 and 3 have moved to Pune for their work and
they have never given up or relinquished their rights in the suit
premises to the plaintiff. She was only allowed to use the suit
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premises for keeping her paraphernalia used for fishing, as the
suit premises were not being used. The plaintiff then requested
the defendant Nos.2 and to allow her son to reside in the suit
premises, as he had married and as the plaintiff has given one of
her two houses on rent of Rs.10,000/. When the defendant
Nos. 2 and 3 demanded the possession, she avoided. She locked
the suit premises and installed cameras outside the house. She
wants to keep the defendant Nos. 2 and 3 out of their own
premises. She has also taken away the documents kept in the
suit premises. She is also using the clothes, utensils and furniture
of the defendant Nos. 2 and 3 kept in the suit premises. She is in
physical possession of the suit premises and therefore is liable to
pay mense profit. She never had any lawful permission to enter
in to the suit premises and is not having any authority. The suit
premises belonged to their father. The plaintiff after marriage
was residing at 85/A Hari Kiru, Warlikar Niwas, Opp. Ganesh
Book Depot, Worli, Koliwada, Mumbai400 030. The defendant
No.3 was residing at Pune. The plaintiff is owner of two houses.
The agreement with the landlord was entered with the defendant
No.2. He was paying the electricity bill charges to the plaintiff
and she was depositing the same in her name. The plaintiff's
daughterinlaw is PSI and therefore they want to usurp the suit
premises. The suit premises were given only for the purpose of
keeping the material. It is denied that defendant Nos. 2 and 3
threatened the plaintiff and it is stated that the said cause of
action is made out to file the present suit. The defendant has
submitted that the plaintiff has approached this court with
unclean hands by suppression of material facts and therefore, she
is not entitled for any relief.
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4. Heard Advocate for the plaintiff and defendants.
Perused the authorities cited by the defendants.
5. In view of rival pleadings of the parties following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
(1) Whether the plaintiff has made out prima
facie case ? : No.
(2) Whether balance of convenience lies in
his favour ? : No.
(3) Whether irreparable loss will be caused
to plaintiff, if no relief is granted ? : No.
(4) What order ? : As per final order.
REASONS
6. By way of present notice of motion the plaintiff is
claiming that the defendants be restrained from evicting from the
suit premises except by due process of law. The plaintiff has
stated that she is residing in the suit premises and the same are
tenanted premises, which belonged to her mother. Now, the
defendants are trying to remove her from the suit premises.
7. Per contra, the defendants have submitted that the
plaintiff has no right to reside in the suit premises. She has
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nowhere stated that in what capacity she is residing in the suit
premises and the suit is filed simplicitor for declaration of
threatening action of the defendant to evict her from the suit
premises as illegal and for permanent injunction. The defendants
have submitted that the plaintiff has not filed suit for declaration
of her rights to reside in the suit premises and she is merely
seeking permanent injunction. The plaintiff is having her own
two houses. After marriage, she was residing at her matrimonial
home and she was only permitted to keep the articles in the
house and she has taken disadvantage of the same. Now, she is
claiming injunction against the defendant in whose name the suit
premises stands. By relying upon the ratio in case of K Abdul
Raheem (died) per Lrs and others Versus Hajeerappa and
others [2005 SCC Online AP 169], the defendants has
submitted that the plaintiff was required to seek declaration of
her right to reside in the suit premises and that the possession
needs to be lawful possession. Further, in the case of East India
Hotels Ltd., Versus Syndicate Bank [1992 Supp (2) Supreme
Court Cases 29], the possession of the trespassers must be
effective, undisturbed and to the knowledge of the owner or
without any attempt at concealment.
8. In the present suit, the plaintiff is seeking relief of
permanent injunction that she should not be removed from the suit
premises without following due process of law and that the threatening
action of the defendant to evict the plaintiff from the suit premises be
declared as per se illegal. The plaintiff has stated that she is residing in
the suit premises. Now, nowhere she has mentioned that since when
she is residing in the suit premises. The plaintiff is a married lady and
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therefore definitely it is expected that after marriage she will be
residing with her husband or inlaws. The plaintiff has not averred a
specific word that after marriage where she went to reside. Therefore,
it does appear that plaintiff has intentionally not pleaded about the said
fact. Whenever a person claims right to continue in possession of a
property, it becomes necessary that he should specifically state that on
which day he entered into possession and in what capacity. He must
also give details on what basis he is claiming right to continue in
possession. The pleadings to that effect are necessary for understanding
the case putforth by the parties. But, in the present case, the plaintiff
has not conveniently disclosed the said factual aspect. The same was
necessary for the reason that defendant in their reply have categorically
stated that plaintiff is having her own two premises in the vicinity of
the suit premises and out of the said two premises, one premises is
given on rent and she is earning handsome profit. The plaintiff has not
filed any rejoinder to the said contention. The defendants have further
stated that the plaintiff was only allowed to keep articles of fishing of
her son in the suit premises and in fact all the clothes, utensils and
furniture and other articles of the defendant Nos. 2 and 3 are lying in
the suit premises. Therefore, in this background also the averments of
the plaintiff about nature of her possession were necessary. The
plaintiff has not produced any documentary evidence such as ration
card, election card or any other documents to show that she was
residing in the suit premises with her family since long. In this
background, the averments made by the defendants on oath that the
plaintiff was only permitted to keep her articles in the suit premises get
substantiated.
9. The plaintiff has not averred that in what right she is
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residing in the suit premises. She has stated that her mother was
tenant, but there is no specific pleadings that she as legal heir of her
mother, alongwith defendants is also entitled for the rights in the suit
premises. No declaration to that effect is sought and definitely when
the right of the plaintiff to reside in the suit premises is under cloud she
was required to seek declaration about her rights, which was necessary
for the reason also that the suit premises stand in the name of
defendant Nos. 2 and admittedly agreement was entered in between
landlord and the defendant No.2. The electricity bills which are
produced on record are also in the name of defendant No.2.
10. If the electricity bills are perused, then the same does not
show much consumption of the units and therefore it also helps the
contention of the defendant that the suit premises were given to the
plaintiff only for keeping the articles. The plaintiff has nowhere stated
that if the injunction is not granted, how she will suffer irreparable loss.
In the present case, the defendant has categorically stated that she is
having other two premises in her name in the vicinity of the suit
premises. In the present case, the plaintiff is praying for a declaration
that threatening action of defendant be declared as per se illegal.
However, there is no sufficient material produced on record to show
that in fact there are any threats from the defendant Nos. 2 and 3. The
plaintiff has only made a statement that on 03/01/2018 the defendant
No.1 alongwith some hirelings came to the suit premises and on behalf
defendant Nos. 2 and 3 threatened to the plaintiff to vacate the suit
premises. However, no immediate report was lodged in the police
station. There is nothing on record to show that there were
continuously threats given by the defendants to the plaintiff. Hence,
the said contention of the plaintiff that she was threatened by the
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defendants also does not appear to be just and proper.
11. If the entire pleadings are perused then, the plaintiff has
failed to make out a primafacie case. She has not been able to show
that she has permanent right to reside in the suit premises. There are
no proper pleadings and also documents filed on record to show that
there exists a primafacie case in favour of the plaintiff. She has not
stated how she will suffer irreparable loss. In fact, it is the defendants,
who will suffer irreparable loss, as the suit premises stands in the name
of defendant No.2. Therefore, balance of convenience is not in favour of
the plaintiff but it is in favour of defendant. The court cannot help a
litigant who has not come before the court with clear and correct facts
for seeking an equitable relief. Considering the principle of justice,
equity and good conscious, I do not find that the possession of the
plaintiff, who was allowed to only keep material in the suit premises
needs to be protected. In the circumstances, I answer Point Nos. 1 to 3
in negative and proceed to pass the following order.
ORDER
The Notice of Motion No.434 of 2018 is dismissed with cost
and accordingly disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 03/04/2018
Dictated on: 03/04/2018
Transcribed on: 04/04/2018
Signed on: 05/05/2018
dbm/cr4
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
06/04/2018 at 11. a.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
03/04/2018
Judgment/Order signed by P.O.on 05/04/2018
Judgment/Order uploaded on 06/04/2018
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