Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.618/2018 ..1.. Suit No.755/2018
CNR No.MHCC010023782018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.618 OF 2018
IN
SUIT NO.755 OF 2018
Mr. Shivkumar Shyam Raheja .. Plaintiff
Versus
Allovers and Lace Pvt. Ltd and Others .. Defendants
Mr. Satyadev Joshi, advocate for plaintiff
Mr. Kunal Bhanage, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 25th June, 2019
ORAL ORDER
Notice of motion is taken out seeking prayer for grant of
temporary injunction preventing and restraining defendants, their
agents, servants or any other person claiming through them from
creating any sort of third party right in respect of suit premises i.e.
Room No.7, Marwari Sammelan Vidya Bhavan, 144, Fanaswadi,
Mumbai 400002 having carpet area admeasuring 250 square feet.
2. It is the contention of plaintiff that his father Mr. Shyam
Nichaldas Raheja had originally acquired the tenancy rights of the suit
premises from original landlord Marwari Sammelan Trust in the year
1960. Said landlord used to issue rent receipt towards the payment of
the same. Till today, said rent receipt stands in the name of M/s.
Nichaldas Kishandas Son. It is further contended that his father was
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carrying out business from suit premises under the name of M/s.
Nichaldas Kishandas Son. Due to advance age of his father, Mr. Naresh
Ramani was taking care of day to day business transaction. In the year
2006, said Naresh Ramani quit the business and retired from
partnership firm. Thereafter, plaintiff's brother joined the said business.
Plaintiff's father died on 17th December, 2009. After his death,
plaintiff's brother inducted plaintiff as partner. His brother also died on
9th May, 2015. After his death, plaintiff took over the business. Plaintiff
was visually challenged and he was finding it difficult to carry out day
to day affairs of said business.
3. It is further contended that in second week of January, 2016
when he along with Haresh Lulla visited the suit premises they saw that
locks of suit premises were broken and defendant No.2 Mr. Satinderpal
Singh Ahuja has forcefully trespassed upon suit premises and carrying
out business in the name of 'Allovers and Lace Pvt. Ltd' in the suit
premises. On enquiry plaintiff was abused and threatened by defendant
No.2. He also told plaintiff that he has acquired and purchased
company and suit premises from Naresh Ramani and he refused to
vacate the suit premises. Plaintiff also came to know that defendant has
transferred electricity bill in his name by misrepresenting BEST.
Through RTI plaintiff sought information regarding allocation of electric
meter in the name of defendant No.1 and presentation made by
defendant for issuing shop and establishment certificate. From details of
said presentation and certificate it can be seen that defendant has not
produced any document substantiating his rights over the suit premises.
4. It is further contended that defendant Nos.1 to 4 are trespassers
and have no right, title and interest in the suit premises. They
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forcefully entered suit premises without permission of plaintiff and are
illegally acquiring suit premises. Therefore, plaintiff prayed in above
terms.
5. Defendants filed their reply and denied all claims, averments
and allegations made in the notice of motion and prayed to dismiss
notice of motion.
6. Heard learned counsel for both sides. They advanced their
arguments in accordance with respective contention of parties.
7. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings with reasons to
follow as under :
POINTS FINDINGS
1.Whether plaintiff has got prima facie case? .. Yes
2.Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
.. Yes
3.Whether balance of convenience lies in favour of
plaintiff?
.. Yes
4. What order? As per Final
Order
REASONS
As to Point Nos.1 to 3
8. Plaintiff has filed copy of rent receipts for the month of April,
2016 to June, 2016 to show that rent of suit premises was paid by him
to landlord i.e. Marwari Sammelan, Mumbai. He has also filed copy of
notice issued by the advocate Anand Naik on behalf of his clients i.e.
Trustees of Marwari Sammelan, Mumbai to point out that Marwari
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Sammelan is landlord of suit premises and he is their monthly tenant in
respect of suit premises. It also transpires from copy of said notice that
they did not hand over suit premises to the defendants. He has also filed
copy of certificate issued by President of Trust to show that M/s.
Nichaldas Kishandas Sons are their tenants in respect of suit premises.
No doubt, plaintiff has not filed any document to show that his brother
inducted him as partner in the said firm but the notice as pointed above
of the advocate of landlord indicate prima facie that plaintiff is their
tenant in relation to suit premises. From the document obtained by
plaintiff under the Right to Information Act particularly an inspection
report made for the purpose of providing electricity supply to suit
premises by the BEST Inspector; it is clear that Nichadas K. Sons is
shown as previous customer of the BEST in relation to suit premises and
it also shows that as per site information there is dispute in between
landlord (Trust) and defendant No.1. So also copy of memorandum
relating to reinstallation of connection issued by BEST shows that
Nichaldas K. Sons was previous customer of BEST in relation to suit
premises. It is pertinent to note that plaintiff has filed suit for possession
of suit premises on the basis of previous possession. Defendants
remained silent in their reply as to how they came into possession of
suit premises and in what capacity they are occupying suit premises.
9. It is matter of evidence during full fledged trial as to whether
plaintiff was in actual possession of suit premises or not but documents
as discussed above prima facie shows his right and interest in the suit
premises. Certainly, if defendants will create third party right or interest
in suit premises then it will cause multiplicity of proceedings and
plaintiff will suffer irreparable loss. More so, balance of convenience
also in his favour. Therefore, I answer point nos.1 to 3 in affirmative.
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Hence, pass following order.
ORDER
1. Notice of Motion No.618 of 2018 is allowed and made absolute
in terms of prayer clause (A).
2. Accordingly, notice of motion stands disposed off.
(M. T. Asim)
Judge
Date : 25.06.2019 Gr. Bombay
Typed on : 25.06.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27.06.2019, 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
25.06.2019
JUDGMENT/ORDER signed by P.O.
on
27.06.2019
JUDGMENT/ORDER uploaded on 27.06.2019
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