Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1000/20 in St.2443/20(Interim)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
INTERIM ORDER
IN
NOTICE OF MOTION NO.1000/2020
IN
SUIT (ST) NO. 2443/2020
Shikha Rohit Pandey ..Plaintiff
V/s.
Smt. Prabha wd/o. Mavji Shethia ..Defendant
Appearance:-
Adv. Mr.S.C. Singh for plaintiff.
Adv. Mr. Nalawade for defendant.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 14.3.2020.
ORAL ORDER
1. This notice of motion is taken out by the plaintiff for
seeking temporary injunction against the defendant and for seeking
mandatory order/ directions to open the lock on the main gate/door
affixed at the stair-case connecting common passage on the first floor in
the suit building known as 436, Jairaj Bhavan, New Mill Road,
Kurla(W), Mumbai-70. The notice of motion is supported by an affidavit
of plaintiff Shikha Pandey.
2. The defendant has been served with the notice of motion
and writ of summons as per affidavit of service filed on record. The
defendant has appeared before this court through Counsel and filed her
WS vide Exh.3 and also submitted affidavit in reply to the notice of
motion alongwith documents vide Exhs. ‘A’ to ‘G’ and opposed the
Motion.
3. Ld. Counsel for the plaintiff has prayed for passing interim
order on 5.3.2020 on the ground of urgency that the defendant has put
-- 1 of 6 --
2 N/M 1000/20 in St.2443/20(Interim)
up a lock to the main gate/door which is adjacent to the stair-case of
the connecting common passage on the first floor of the building 436
Jairaj Bhavan, New Mill Road, Kurla, Mumbai.
4. I have heard Ld. Counsels for both sides for grant of
interim relief on 9.3.2020. In the course of arguments, Ld. Counsel for
the plaintiff has produced copies of some documents in RAD
Suit.No.2/2010 between Mavji Shamji Sethia V/s. Shri Jugal B. Pandey,
copy of order below Exh.1 in Execution Application No.359/2011, copy
of Revision Application No.16/13 in Execution Application No.359/11
arising from the above said suit in support of his submission. I have
considered the same.
5. Ld. Counsel for the plaintiff has relied upon the pleadings
in the plaint and supporting affidavit and submitted that the plaintiff is
a lawful tenant and occupant of room no.3 situated on the first floor,
436 Jairaj Bhavan, New Mill, Kurla (W), Mumbai 70. The said building
consists of ground plus 1st and 2nd floors. The plaintiff is using the
main gate/ door affixed at the stair-case connecting common passage of
the suit building. It is submitted that the defendant is residing at the
address given in the cause title of the plaint i.e. room no. 2 on the first
floor of the said building along with her family. It is submitted that, the
plaintiff use the main gate/ door connecting the common passage along
with other occupants and defendant as an access to the way to the
respective rooms. The defendant and her family with an malafide
intention restrained the access of the plaintiff to her room by putting a
lock to the main gate /door on the first floor from inside, obstructing
ingress and egress of the plaintiff to her room premises. Hence, this suit
and present Motion is taken out in view of the urgency before the
-- 2 of 6 --
3 N/M 1000/20 in St.2443/20(Interim)
court.
6. Ld. Counsel for the plaintiff has also referred to and relied
upon the sketch map and documents filed along with the plaint at pages
16 and 17 to show exact location of the common passage, entrance
main gate and location of room no.2 and 3 on the first floor of the
building known as 436, Jairaj Bhavan, New Mill Road, Kurla(W),
Mumbai 70 and to show possession of the plaintiff. Reliance is also
placed on the rent receipts, tenancy agreement dated
31.10.2017,electricity bill, copy of order passed by Small Causes Court
in RAD & E 1145/1761 of 2013, copy of police complaint dated
17.2.2020 and affidavit of the plaintiff in support of the pleadings. Ld
Counsel for the plaintiff has also relied upon some other documents
produced in the course of arguments before the court and urged that,
prima facie the plaintiff has made out a case for grant of interim
protection to her till the Motion is decided on merit, during pendency of
the suit.
7. Per contra, Ld. Counsel for the defendant has strongly
opposed the request for interim relief and relied on the affidavit in reply
as well as WS filed on record vide Exh.3. In the reply affidavit, the
defendant has contended that, she is bonafide occupant and in
possession of the room no.2 on the first floor of the building Jairaj
Bhavan, as described in the plaint, in pursuance of the order passed by
Small Causes Court, Mumbai dated 4.9.2009. The plaintiff is claiming
her right not through Jugal Pandye, who was the main contesting
defendant in RAD Suit No.1126/1998, who had handed over the
possession of the room no.2 to the defendant. As per his affidavit filed
on record and copies of the rent receipts for the entire first floor, it can
be seen that the defendant is in possession of the entire first floor.
-- 3 of 6 --
4 N/M 1000/20 in St.2443/20(Interim)
8. Ld Counsel for the defendant further submitted that, the
plaintiff is twisting the facts and misleading the court and claiming
interim protection without arguing the Motion on merit. The defendant
has contested the claim of the plaintiff that she is in occupation and
possession of the room no.3 on the first floor. On the other hand, the
defendant has claimed that she is in exclusive possession and use of the
first floor of the said building, as per documents filed on record.
Therefore, prima facie, the contention of the plaintiff that the defendant
has locked the main gate/door connecting the common passage on the
first floor on 11.2.2020 to restrict entry of the defendant does not
appear to be true and correct. It is submitted that, the plaintiff has filed
present Suit only to harass the defendant and her family members to
frustrate the decree passed by the Hon'ble Small Causes Court in RAD
Suit 1126/98. Ld. Counsel for the defendant took me through the
documents filed alongwith the affidavit in reply to support his
contention and argued that, there is no substance in the contention of
the plaintiff that there is urgency to pass interim order protecting the
plaintiff because no prima facie case or balance of convenience is made
out for passing such order. Hence, the request for interim relief by the
plaintiff deserves to be rejected.
9. After going through the pleadings of the respective parties
and documents filed on record as well as after considering rival
submissions made by Ld. Counsels for both sides, I find that there are
some disputed facts regarding occupation and actual & physical
possession of room no.3 by the plaintiff and whether entire first floor of
the building 436, Jairaj Bhavan, New Mill Road, Kurla (W), Mumbai 70
is in possession of the defendant on the basis of the order of Small
Causes Court. Therefore, the ground of urgency pleaded by Ld. Counsel
-- 4 of 6 --
5 N/M 1000/20 in St.2443/20(Interim)
for the plaintiff cannot be accepted in absence of any prima facie
evidence or material on record. The documents which the plaintiff has
produced consist of sketch map, which is not drawn by any expert
person or it is not an authenticated documents. Tenancy agreement
dated 31.10.2017, rent receipts, electricity bills and order of Small
Causes Court and police complaint etc. are filed on record. However,
these documents are disputed by the defendant. Therefore, I am not
inclined to pass any order of interim protection, as prayed by Ld
Counsel for the plaintiff but it will be just and proper to allow the
plaintiff to produce on record prima facie evidence to show her actual
and physical possession of the suit room no.3 on the first floor of
building- Jairaj Bhavan, 436, New Mill Road, Kurla(W), Mumbai 70.
Hence, I proceed to pass following order :-
ORDER
1. Oral request of Ld. Counsel for the plaintiff for
grant of the interim protection is hereby refused.
2. The plaintiff shall be at liberty to produce
prima
facie evidence besides to the documents already
produced to show her actual and physical
possession over the suit room/ take steps to move
this Court for appointment of Court Commissioner
to inspect the location of the suit premises to find
out factual aspects and bring the same on record
before the Motion is taken for hearing on merit.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 14.3.2020 Gr. Bombay (C.R. 03)
Dictated on : 14.3.2020
Transcribed on : 16.3.2020
Signed by HHJ on : 16.3.2020
-- 5 of 6 --
6 N/M 1000/20 in St.2443/20(Interim)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 17.3.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 14.3.2020
Judgment/ order signed by P.O on 16.3.2020
Judgment/ order uploaded on 17.3.2020
-- 6 of 6 --