Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION No.581 OF 2018
IN
S.C. SUIT No. 558 OF 2018
Mrs. M. Muthulakshmi Muthu Kumar ..Plaintiff.
Versus.
Mr. Mandhiram Navaneetha Krishnan ..Defendant.
Adv. Pratap Singh for plaintiff.
Adv. Ejaz Naqvi for defendant.
CORAM : Dinesh P. Surana
Court Room No.1
DATED : 28.02.2018.
ORAL ORDER
Present Notice of Motion is taken out by the plaintiff for grant of
temporary injunction pending suit against the defendant their agents,
servants, representatives and person or persons acting on their behalf
from obstructing or disturbing or interfering with the exclusive use,
occupation and possession of the suit shop i.e.,Shop No.3, at Neelkanth
Building, in Neelkanth Commercial Complex Premises Cooperative
Society Ltd. Situate at Tikka No.40, City Survey No. 815/1/2/3, N.G.
Acharya Marg, Chembur, Mumbai 400 071 admeasuring 180 sq.ft.
without following due process of law.
2. Heard learned advocate Pratap Sigh for the plaintiff and
advocate Ejaz Naqvi for defendant. Perused documents placed by the
plaintiff and affidavit in reply filed by the defendant to Notice of
Motion. Advocate for plaintiff submitted that the plaintiff is in
possession of suit shop and there is an attempt and again apprehension
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to the plaintiff that she will be dispossessed from suit premises.
Therefore, he submitted that pending the hearing of the suit temporary
injunction be granted in favour of the plaintiff as prayed.
3. As against this advocate for defendant submitted that the
plaintiff cannot claim injunction in view of Section 4 of the Benami
Transactions (Prohibition) Act, 1988. That the plaintiff has not paid
proper court fee stamp and therefore, on the same ground the plaint is
liable to be returned. He submitted that police cases between the parties
are already pending and therefore civil dispute is not maintainable. He
submitted that there is likelihood of arrest of the plaintiff in the
complaint filed by the defendant. He further submitted that there is no
document of possession of the plaintiff over the suit shop. He further
submitted that photographs filed by the plaintiff is denied as they are of
other adjoining shops which are owned by the plaintiff. That, society as
well as occupiers of shops are also supporting the plaintiff and
therefore, the plaintiff can take such photographs. He submitted that
mere filing of the photographs does not mean that the plaintiff is in
possession of the suit shop. As per him, the plaintiff has not come with
clean hands before the court and therefore Notice of Motion is liable to
be dismissed.
4. Perused the R & P. On being confronted advocate for the
defendant admitted that the defendant has filed the complaint against
the plaintiff and others at Metropolitan Magistrate Court at Kurla,
Bombay. He also admitted that the copy of complaints filed by the
plaintiff are the same. In such complaints itself the defendant has
categorically admitted the possession over the suit shop of the plaintiff.
As per the averments in complaints the possession was taken by the
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plaintiff on 08.01.2018.
5. As per the plaintiff she is already in possession of the suit
shop since 1986. Irrespective of the length of possession being proved
by either side, the fact remains that defendant himself made averment
in his criminal complaint that since 08.01.2018 plaintiff is in possession
of suit shop. The defendant in his affidavit in reply has not disputed that
the photographs filed by the plaintiff are not of the suit shop. Advocate
for defendant contended that police has handed over the suit shop in
possession of the defendant. However, along with affidavit in reply to
Notice of Motion no such document is filed. The police NC complaint
which is filed by the defendant is of August, 2017. Whereas, the
averment in the criminal complaint regarding the taking possession of
shop is of 08.01.2018. Therefore, prima facie, on the day of filing of suit
and filing of affidavit in reply to Notice of Motion, the plaintiff seems to
be in possession of the suit shop.
6. The relief which is claimed by the plaintiff is that she
should not be dispossessed without following due process of law. By
whatever mode may be, the plaintiff admitted to be in possession of the
suit shop since 08.01.2018. Except filing of affidavit in reply to present
Notice of Motion no other document is shown by the defendant to show
that any step is taken by him for taking back the possession of suit shop
from the plaintiff. The plaintiff is a female of 28 years. Under such
circumstances, without following due process of law, she cannot be
forcibly evicted from the suit shop by the defendant, of which the
plaintiff is having apprehension. Under such circumstances, I am of the
view that pending suit Notice of Motion is required to be made absolute
in terms of prayer clause (a) and (b). Needless to say that whether, the
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plaintiff is entitled for declaration or not, as per prayer clause (a) in suit
or the suit is hit by Section 4 of Benami Transactions (Prohibition) Act,
will be seen at the final adjudication of the suit. In whatever capacity
may be, the plaintiff's possession cannot be disturbed without following
due process of law by the defendant. Therefore, following order is
passed.
ORDER
Notice of Motion is made absolute in terms of prayer clause (a)
and (b).
No order as to costs.
Advocate for plaintiff undertakes to pay required court fee within
two weeks from the date of this order.
(Dinesh P.Surana)
Judge, City Civil Court,
Date : 28.02.2018. Gr. Bombay.
Dictated on : 28.02.2018
Transcribed on : 28.02.2018
Signed on : 01.03.2018
“CERTIFIED TO BE TRUE & CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
03.03.2018 11.00 a.m. Mr.Vishnu S. Shinde
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) HHJ Shri D.P. Surana (C.R.No.01)
Date of pronouncement of Judgment/ order 28.02.2018
Judgment/Order signed by the P.O. on 01.03.2018
Judgment/Order uploaded on 03.03.2018
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