Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.703 OF 2020
(CNR NO.MHCC010018592020)
IN
S. C. SUIT NO.356 OF 2020
Amrish Rasiklal Shah )..Plaintiff
V/s.
Mr. Naushad Nooralo Keshwani & others ).. Defendants
Appearances :
Ld. Adv. D. A. Barot a/w Adv. Aparna Sonawane for plaintiff.
Ld. Adv. Shyamrishi Pathak for defendant No.1 to 3.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 03.04.2023.
ORDER
1. The plaintiff has filed this notice of motion for grant of
temporary injunction directing the defendant to pay Rupees Five Lakhs
only per month as and by way of mesne profit for an illegal use of suit
property and for an appointment of Court Receiver.
2. It is the contention of plaintiff that he was in possession of
the suit property but, on 28/12/2019, the defendants illegally,
unlawfully, against the wish and consent of the plaintiff, had forcibly
removed his lock on the door of the suit property and put their lock.
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Thus, they took forcible possession of the suit property from the plaintiff
and are in illegal possession of the same. Consequently, the plaintiff is
seeking payment of mesne profit of Rupees Five Lakhs only per month as
well as the appointment for Court Receiver by way of temporary
injunction.
3. The defendant No.1 to 3 resisted the contention of plaintiff
by filing Written Statement at Exh.8 and defendant No.4 filed his
Written Statement at Exh.6. Defendants have adopted their Written
Statements as reply to this notice of motion.
4. It is being the suit u/s.6 of the Specific Relief Act, the
plaintiff is required to prove his previous possession and dispossession
immediately within six months from the date of institution of the suit.
The relief of payment of Rupees Five Lakhs as compensation or by mesne
profit is being the monetary relief, I am of the view that the plaintiff has
no irreparable loss, as he himself quantified his probable loss.
5. I am fortified with the judgment passed by the Hon'ble
Supreme Court in a case of, “M/s. Best Sellers Retail (India) Pvt. Ltd.
V/s. M/s. Aditya Birla Nuvo Ltd. & others, reported in (2012)6 SCC
792, wherein the Hon'ble Supreme Court has observed that,
“Satisfaction that there is a prima facie case by itself is not
sufficient to grant injunction. The Court further has to satisfy
that noninterference by the Court would result in “irreparable
injury” to the party seeking relief and that there is no other
remedy available to the party except one to grant injunction
and he needs protection from the consequences of
apprehended injury or dispossession. Irreparable injury,
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however, does not mean that there must be no physical
possibility of repairing the injury, but means only that the
injury must be a material one, namely, one that cannot be
adequately compensated by way of damages.”
6. Considering the observations of Hon’ble Supreme Court in
cited case Supra, I am of the view that the plaintiff is not entitled for the
relief of payment of Rupees Five Lakhs only per month.
7. Insofar as the appointment of Court Receiver is concerned,
it is the contention of plaintiff that the defendants are in illegal
possession, therefore, an appointment of Court Receiver is necessary so
as to undo their wrong. He also pointing out the Written Statement of
defendant No.4, which appears to be in corroboration of the plaintiff.
However, it is the contention of defendant No.1 to 3 that now the
defendant No.4 has become hostile to the other defendants, his Written
Statement cannot be considered. It is well settled that plaintiff should
establish his case upon own footing. The plaintiff is vehemently relied
upon the Judgment passed by the Hon'ble Supreme Court in a case of,
“Mr. Rajesh M. Khadawala V/s. Dr. Naina K. Nissar alias Dr. Naina
Wade & another, in Suit Lod. No.1139/2004 dated 06/05/2004”.
8. In the cited case, the Court Receiver was appointed having
found that there was no dispute regarding the previous possession of
plaintiff therein over the suit property and even there was interim order
in favour of plaintiff the plaintiff was dispossessed from the suit
property. In view of dispossession from the settled possession, the
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Hon'ble High Court has directed the defendant to remove himself from
the possession of the suit property and appointed the Court Receiver on
the suit property. In the instant case, defendant No.1 to 3 are denying
the possession of the plaintiff over the suit property and his
dispossession by them. In these circumstances, the plaintiff is required
to establish his previous possession. Until and unless the previous
possession is proved, the plaintiff will not be able to establish his case.
The proof of previous possession is required to be established by
adducing the evidence, which is not possible at this stage.
9. It is to note that defendant No.1 to 3 are referring police
complaint filed alongwith the plaint at page No.355, which appears to be
lodged on 03/01/2020. The plaintiff is claiming the dispossession on
28/12/2019 in plaint. However, in the last but one para of the
complaint, while narrating the dispossession, the plaintiff did not specify
the date and time of the dispossession. Thus, to the defendants, the
plaintiff was not in possession of the suit property. Considering the rival
submissions, I am of the view that the possession and dispossession is
required to be proved during the trial and until and unless this fact is
required to be proved, in these circumstances, the appointment of Court
Receiver would not be justified. Moreover, the plaintiff is claiming the
mesne profit of Rupees Five Lakhs only per month. Thus, would entitled
for mesne profit for the period of his dispossession, in case of his success.
Therefore, I am of the view that there is no any irreparable loss.
Consequently, there is no need to appoint the Court Receiver.
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10. Considering the above discussion, I am of the view that
plaintiff is not entitled for the relief sought. In the result, I proceed to
pass the following order :
O R D E R
1. Notice of Motion No.703/2020 in S.C. Suit No.356 of 2020, is
hereby dismissed.
2. Notice of Motion disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 03.04.2023 C.R. No.03, Gr. Mumbai
Dictated on : 03/04/2023
Typed on : 03/04/2023
Signed on : 03/04/2023
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“Certified to be true and correct copy of the original signed order”.
03/04/2023
at about 5.50p.m.
(Dastagir Babalal Mulla)
Stenographer GradeI (Gazetted)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of
Order
: 03/04/2023
Order signed by Hon'ble Judge
on
: 03/04/2023
Order uploaded on : 03/04/2023
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