Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 ExParte Judg. in Suit No. 668/2019
Lodged on : 12.03.2019
Admitted on : 13.03.2019
Decided on : 18.04.2022
Duration : 03Y 01M 05D
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO. 668 of 2019
CNR NO. : MHCC010027892019
Mr. Natraj Nanjappa Chettiyar
Age about 51 years, Occ. Tailor,
Indian Inhabitant of Mumbai,
Residing at Room No.6,
Koynabai Chawl No.2,
Safed Pool KurlaAndheri Road,
Safed Pool, Sakinaka,
Mumbai – 400 072. ...Plaintiff
Versus
Mr. Shivswamy Nanjappa Chettiyar
Aged about 63 years, Occ. Business,
Indian Inhabitant having permanent
address at D.N. 27, N.S.P. Nagar,
Thirumurugan Poondi,
Tirupur – 641 562. ….Defendant
Appearances:
Adv. Mr. Asit Singh for Plaintiff.
Defendant and his advocate absent.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO. 66)
DATED : 18.04.2022
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Suit for permanent injunction.
EXPARTE JUDGMENT
The suit is filed by the plaintiff against defendant to permanently
restrain him from dispossessing the plaintiff from the suit premises
situated at Room No.6, Chawl No.2 known as Koynabai Chawl, Safed
Pool, KurlaAndheri Road, Safed Pool, Sakinaka, Mumbai – 400 072
without following due process of law.
Brief facts of the plaintiff’s case is as under :
2. Plaintiff is in possession of the suit property as a tenant. The
defendant is his real elder brother and residing at Tirupur. The
landlord of the suit premises is Mr. Arjunrao Shelke. The father of the
plaintiff was the tenant of the suit premises. The father of the plaintiff
has surrendered all his rights, title and interest as a tenant by affidavit
dated 07.08.1997 in favour of plaintiff. The mother of the plaintiff also
executed affidavit on 29.08.2013 in respect of the suit property.
3. The plaintiff stated that the defendant is residing permanently at
Tirupur. The defendant is stating that he is a plaintiff to vacating the
suit premises after death of their father. The defendant issued notice in
the year 2014 to the plaintiff through his advocate asking plaintiff to
give possession of the suit premises. The said notice is replied by the
plaintiff on 01.12.2014. The defendant again in July 2015 issued letter
through advocate to the plaintiff seeking same claim. Plaintiff replied
the said letter of the defendant.
4. The plaintiff stated that on 06.03.2019 at about 3.00 p.m.
constable attached to Sakinaka Police Station called the plaintiff to the
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police station. Plaintiff went to the police station. The officer told that
the compliant is received from defendant that he is not allowing the
defendant in the suit premises. The plaintiff told that the defendant is
permanently residing at his native place. On 09.03.2019 in the
midnight some unknown persons came in the suit premises and
threatened plaintiff on behalf of defendant to vacate the suit premises
within week. The plaintiff filed complaint on 10.03.2019 through the
advocate to the Deputy Commissioner of Police. The Deputy
Commissioner of police told to the plaintiff that it is a civil matter and
approach the Court of law.
5. The plaintiff has apprehension that the defendant is intend to
grab the property and will dispossess the plaintiff. Hence, the suit of
permanent injunction against defendant, not to disposes the plaintiff
without due process of law.
6. The roznama dated 29.01.2020 shows that the writ of summons
is duly served on defendant. Defendant did not appear. Hence, suit
proceeded exparte.
7. In view of the above pleading of the plaintiff following points
arise for my determination and reasons with findings thereon are as
under:
ISSUES FINDING
1. Whether plaintiff proves that defendant has
threatened plaintiff to vacate the suit premises ?
No.
2. Whether plaintiff is entitled for permanent
injunction restraining defendant from
dispossessing the plaintiff from the suit premises
without due process of law ?
No.
3. What order and decree ? As per final order.
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R E A S O N S
Heard advocate Mr. Asit Singh for plaintiff.
As Point No.1 to 3 :
8. The plaintiff to prove the contents of plaint has examined himself
by filing evidence affidavit (Exh.5). The contents of affidavit is as per
the contents of the plaint. The plaintiff has relied on Rent Receipt
issued by Arjunrao Sripatrao Shelke dated 12.03.2019 (Exh.6). The
plaintiff has relied on Electricity Bill (Exh.7), Gas connection (Exh.8),
Death Certificate of father of the plaintiff (Exh.9), Affidavit of mother of
plaintiff dated 29.08.2013 (Exh.10), Death Certificate of Mother of
plaintiff (Exh. 11).
9. It is not disputed that the defendant issued letter dated Nil to the
plaintiff (Exh. 12). The defendant in the said notice has stated that
there are other legal heirs of Nanjappa Chettiyar, the father of the
plaintiff and defendant. The suit premises transferred without their
consent. The documents are forged. The defendant called upon the
plaintiff to transfer the tenancy in his and plaintiff’s name, as other
members of the family have no objection for the said transfer. The
plaintiff replied the said letter on 01.12.2014 (Exh.13) and denied the
joint claim of the defendant.
10. The defendant has again issued letter dated 15.07.2015 (Exh. 14)
and called upon plaintiff to give inspection of the documents of transfer
of a suit premises and also stated that those are false documents. It is
stated in the said notice that the reply of the plaintiff dated 01.12.2014
is false. The plaintiff replied the said notice on 21.07.2015 (Exh.15) and
stated that there is consent of his father and mother for transfer of
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tenancy in his name. The same was transferred during their life time. It
is further stated that the defendant had no protection or any right in
respect of the suit premises, which is subject matter of the notice under
reference under the Maharashtra Rent Control Act, 1999.
11. The plaintiff is claiming exclusive tenancy rights in the suit
premises on the basis of affidavit of his father Nanjappa Chettiyar dated
07.08.1997. It is a xerox copy therefore, not marked as an exhibit. The
father of the plaintiff expired on 25.01.1999. The mother of the plaintiff
also executed declaration affidavit on 29.08.2013 (Exh.10). It is not
disputed that the father of plaintiff was original tenant in the suit
premises. The plaintiff claims that the father during his life time has
transferred the suit premises by execution of affidavit. The father of the
plaintiff expired on 25.01.1999. The plaintiff has relied on the rent
receipt dated 12.03.2019. In the plaint, the plaintiff has relied on xerox
copy of rent receipt dated 11.11.2017. There is no document placed on
record to show that any such change was recorded by the landlord in
the rent receipt after the said affidavit was executed by his father.
12. The mother of the plaintiff has executed a declaration about the
residence of other children and that of defendant. She has also stated
about the execution of affidavit by Nanjappa Chettiyar transferring the
right of tenancy in favour of plaintiff. The possession of plaintiff in the
suit premises is not disputed by the defendant. The defendant on the
contrary has issued notice to the plaintiff calling upon him to record his
name also in the suit premises, as other legal heirs had no objection for
such transfer. Plaintiff has denied the said joint transfer on the ground
that the father of the plaintiff has executed affidavit for transfer of the
suit premises in his name. The plaintiff has not placed on record any
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document to show that the rent receipts were transferred in the name of
plaintiff after the execution of document by his father. The defendant
are disputing the said affidavit being forged.
13. The plaintiff has apprehension that defendant will disposes him
from the suit premises without following due process of law. However,
the defendant has issued two legal notices to the plaintiff and called
upon him to transfer the suit premises jointly in his and plaintiff’s name.
The plaintiff replied the first notice and denied for any such transfer on
the ground that the father of the plaintiff and defendant by way of
affidavit has transferred the rights of tenancy in his favour. The
defendant called upon the plaintiff for inspection of the said documents
and stated that those documents are forged. The plaintiff has narrated
two incidents of obstruction to the possession of the plaintiff.
14. The plaintiff has relied on the complaint issued to the Deputy
Commissioner of Police dated 10.03.2019 (Exh.16). In the said letter,
the plaintiff in Para 6 stated that since last week his elder brother has
threatened the plaintiff by some unknown persons, who are always
coming in the midnight and threatening the plaintiff to vacate the said
Room No.6. However, there is only one incident stated in Para No.11
of the plaint that on 09.03.2019 in the midnight unknown persons came
to the suit premises and threatened plaintiff. Therefore, the said
apprehension of the plaintiff in view of above contradictory statement
cannot be accepted.
15. The own pleadings of the plaintiff in the plaint, evidence affidavit
and documents shows that defendant has issued notices to the plaintiff
and called upon him to transfer the suit premises in his name also. He
has followed due procedure of law. The defendant is residing in the
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native place. One incident is narrated but who were the persons of the
defendant threatened him, is not stated. On the basis of such vague
pleading in respect of the incident, it cannot be said that the defendant
is threatening the plaintiff. The defendant didn't appear, therefore, suit
proceeded exparte. Though evidence of the plaintiff is not challenged,
it is for the plaintiff to prove the contents of the plaint. The plaintiff
failed to prove that the defendant has threatened the plaintiff to
disposes him from the suit property. Therefore, plaintiff is not entitled
for permanent injunction. Hence, point No.1 and 2 is answered in
negative and pass following order :
ORDER
1. Suit is dismissed.
2. Decree be drawn accordingly.
Dated : 18.04.2022 (Smt. S.S. Nagur)
Judge,
City Civil Court
Gr. Mumbai.
Pronounced on : 18.04.2022
Dictated on : 18.04.2022
Typed on : 18.04.2022
Checked & Signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
18/04/2022 5.30 p.m. Kavita S. Jadhav
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.66)
Date of Pronouncement of
Judgment/Order.
18/04/2022
Judgment/order signed by P.O on 18/04/2022
Judgment/order uploaded on 18/04/2022
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