Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1265/2019 ..1.. Suit No.591/2019
CNR No.MHCC010032762019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1265 OF 2019
IN
SUIT NO.591 OF 2019
Vijayraj Chattier .. Plaintiff
Versus
Mr. Niyam Bhasin and another .. Defendants
Mr. J.N. Shah, advocate for plaintiff
Mr. Viral Amin, advocate for defendant No.2
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 16th September, 2019
ORAL ORDER
Notice of motion is taken out by plaintiff for appointment of
Court commissioner for visiting and verifying actual and factual position
of suit premises i.e. Garage No.1, on the ground floor of Flat No.1/3,
Brady's Flat in Colaba Land CHS Limited, Sorab Bharucha Road, Colaba,
Mumbai 400005 as well as for temporary injunction restraining
defendants, their servants, agents and all persons claiming through
them from forcibly dispossessing plaintiff and/or interfering with and
disturbing plaintiff's exclusive use, occupation and possession over suit
premises.
2. It is the contention of plaintiff that Mr. Raghuvansh Bhasin was
owner of suit premises. Defendant No.2 is the society where suit
premises is situated and defendant No.1 is son of said Raghuvansh
Bhasin. It is further contended that he is mechanic and since 1987 he is
doing business of running garage from Standard Auto Services Petrol
Pump which is adjoining to garage No.1 i.e. suit premises.
-- 1 of 8 --
NM No.1265/2019 ..2.. Suit No.591/2019
3. It is further contended that he was having cordial relation with
Raghuvansh Bhasin. Family members including defendant No.1 have
left Raghuvansh Bhasin and so he was staying all alone in his flat.
Plaintiff looked after and taken care of Raghuvansh Bhasin in his old
age. Therefore, Raghuvansh Bhasin by writing dated 28.05.2013 has
given rights in respect of suit premises i.e. garage No.1 to plaintiff and
handed over possession of same to him. Said writing has also been duly
acknowledged by defendant No.2. Since then plaintiff is in exclusive
use, occupation and possession of suit premises. Even after death of
Raghuvansh Bhasin he is in continuous use, occupation and possession
of suit premises.
4. It is further contended that mother, brother and sister of
defendant No.1 filed suit bearing Stamp No.241 of 2017 against
defendant No.1 before the Hon'ble High Court. Plaintiff has been falsely
added as a party in that suit. More so, defendant No.1 in his reply
admitted the fact of execution of writing by Raghuvansh Bhasin and
possession of suit premises by plaintiff. However, on 27.02.2019, at
about 2.00 p.m. defendant along with his hirelings visited suit premises
and threatened plaintiff to vacate suit premises. Plaintiff lodged
complaint to police in that regard. Even on 02.03.2019 defendant No.1
again visited suit premises and made an attempt to break open the lock.
He also threatened plaintiff's staff to vacate suit premises immediately
failing which he will forcibly remove them from suit premises. It is
further contended that in view of writing dated 28.05.2013 duly
executed by Raghuvansh Bhasin; he is in lawful possession of suit
premises. Defendants have no right or authority of whatsoever nature to
dispossess plaintiff without due process of law.
5. In additional affidavit plaintiff contended that after filing of
present suit defendant No.1 made an attempt to trespass suit premises
-- 2 of 8 --
NM No.1265/2019 ..3.. Suit No.591/2019
by breaking open the lock and encroach the suit premises by parking his
dead vehicle therein to create false record. Plaintiff lodged complaint
vide his letter dated 22.03.2019. Mr. Raghuvansh Bhasin vide writing
dated 28.05.2013 has bequeathed all his right in respect of suit
premises to plaintiff about which defendant No.1 has knowledge and
same is duly acknowledged by defendant No.2. Accordingly, plaintiff
urged in above terms.
6. Defendant No.1 remained absent despite service of notice upon
him. Therefore, notice of motion is proceeded exparte against him.
7. Defendant No.2 filed their reply contending that plaintiff is not
entitled to file suit. He is claiming possession of suit garage which is
connected to Flat No.3 in Block No.1 of defendant No.2 society. Plaintiff
is not member of defendant No.2 society therefore his claim to the suit
garage is baseless and untenable. It is further contended that plaintiff is
claiming possession of suit garage on the basis of letter dated 28.5.2013
wherein deceased R. V. Bhasin stated that letter may be considered as
part of his will under which plaintiff became the owner with immediate
effect. However, in response to the said letter; defendant No.2 society
by its letter dated 03.08.2013 stated that until they could not go into
Mr. Bhasin's will, its validity and contents; it was not permissible for
them to transfer said garage to outsider who was not a member of
defendant No.2. Even they called upon Mr. Bhasin to refrain from
transferring suit garage to nonmember as it is illegal and would not be
accepted by defendant No.2. Plaintiff has suppressed this fact from this
Court.
8. It is further contended that in the records of society, deceased R.
V. Bhasin, his wife Mrs. Bindu Bhasin and his son Mr. Niyukt Bhasin are
recorded as members in respect of Flat No.3 and suit garage. Bills of the
-- 3 of 8 --
NM No.1265/2019 ..4.. Suit No.591/2019
said flat and suit garage are being raised in the name of R. V. Bhasin. In
fact, defendant No.1 contended that he has right in respect of said flat
as heir of R. V. Bhasin. But that position is not borne out from copy of
will of R. V. Bhasin and no probate has been obtained for the same.
Hence, defendant No.2 did not accept that defendant No.1 has any right
in respect of said flat. Defendant No.1 is not a member of society with
regard to flat No.3 and suit garage. It is further contended that neither
plaintiff nor defendant No.1 have established any right in respect of suit
garage. Accordingly, prayed for dismissal of notice of motion.
9. Perused notice of motion, affidavit and additional affidavit in
support of it, reply of defendant No.2, pleadings of the parties and
documents filed on record. Heard respective counsel for parties. They
advanced their arguments in accordance with respective contention of
parties.
10. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under :
POINTS FINDINGS
1. Whether plaintiff proves that it is necessary to
appoint Court Commissioner to inspect suit premises?
..No.
2. Whether plaintiff has got prima facie case? ..No.
3. Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
..No.
4. Whether balance of convenience lies in favour of
plaintiff?
..No.
5. What order? As per final
order
REASONS
As to Point Nos.1 to 4 :
11. Plaintiff has prayed for appointment of Court Commissioner to
-- 4 of 8 --
NM No.1265/2019 ..5.. Suit No.591/2019
visit and verify actual and factual position of suit premises. Before
dealing with said prayer made by plaintiff it is necessary to mention
legal position in relation to appointment of Court Commissioner for
local inspection. As per section 75 read with Order 26 Rules 9 & 10 of
CPC the Court is empowered to issue commission to such person as it
thinks fit directing him to make local investigation and to report
thereon for the purpose of elucidating any matter in dispute or
ascertaining the market value of any property or amount of any mesne
profits or damages or annual net profits. However, the object of local
investigation is not to collect evidence which can be taken in Court. In
view of this legal position now, I deal with prayer of plaintiff for
appointment of Court Commissioner.
12. Although plaintiff has made prayer for appointment of Court
commissioner but he has not assigned any reason as to why
appointment of Court commissioner is necessary. It seems that under
the garb of said prayer plaintiff wants to collect evidence in respect of
his alleged possession over suit premises. As pointed above, court
commissioner cannot be appointed to collect the evidence hence, I am
not inclined to appoint court commissioner to visit and verify actual and
factual position of suit premises. Therefore, I hold that it is not
necessary to appoint court commissioner to inspect suit premises.
Accordingly, I answer point No.1 in negative.
13. Plaintiff has made prayer in terms of prayer clause (b) seeking
temporary injunction restraining defendants, their servants, agents and
all persons claiming through them from forcibly dispossessing plaintiff
and/or interfering with and disturbing plaintiff's exclusive use,
occupation and possession of over suit premises. Plaintiff has claimed
in plaint that he is in settled possession of suit premises. Learned
advocate for plaintiff has placed reliance upon authorities in the cases
-- 5 of 8 --
NM No.1265/2019 ..6.. Suit No.591/2019
of Krishna Ram Mahale (dead) by LRS Vs. Mrs. Shobha Venkat Rao
(1989) 4 SCC 131, Rame Gawda (D) by LRS Vs. M. Varadappa
Naidu (D) by LRS & Ors, AIR 2004 SC 4609 and Ravinder Kaur
Grewal & Others Vs. Manjit Kaur & Others, Civil Appeal No.7764 of
2014 decided by Hon'ble Supreme Court of India on 07.08.2019, in
support of his submission. He vehemently argued that notice of motion
proceeded exparte against defendant No.1, thus his contention about
his settled possession over suit premises is not controverted; and
defendant No.2 has not specifically denied averments about settled
possession of plaintiff over the suit premises and submitted to grant the
relief in terms of prayer clause (b). On the other hand, learned advocate
for defendant No.2 argued that plaintiff is no more in possession of suit
premises and garage has to go along with suit flat so plaintiff is not
entitled for the relief in terms of prayer clause (b).
14. It is pertinent to note that plaintiff has filed additional affidavit
and, in that affidavit, he has stated that defendant No.1 on 11.03.2019
made an attempt to trespass suit premises by breaking open the lock
and encroach the suit premises by parking his dead vehicle therein to
create a false record. He also stated about lodging of report on
22.03.2019. I have perused the copy of report dated 22.03.2019. In the
said report it is mentioned that on 11.03.2019 his advocate served said
Niyam Bhasin a letter thereby intimating him to remain present before
this Court on 11.03.2019 at 2.45 p.m. It is further mentioned that this
letter aggravated Niyam Bhasim so much that he visited said garage and
broke both locks of said garage with the help of his associates, threw all
his goods out and parked his vehicle in the said garage. It is also
mentioned that said incident was recorded in mobile. It is also
mentioned that in said report that Niyam Bhasin then employed his
guard to prevent him from approaching or using his garage premises.
From above recitals in the report of plaintiff it is clear that he lost
-- 6 of 8 --
NM No.1265/2019 ..7.. Suit No.591/2019
possession of suit premises. Thus, now, prima facie he is not in
possession of suit premises. There is no dispute about the ratio laid
down in cited authorities. In facts of the present case when plaintiff is
no more in possession of suit premises then he is not entitled to claim
relief in terms of prayer clause (b). Said relief has become infructuous.
Therefore, with due respect I am of the view that cited authorities are
not of assistance to the plaintiff to seek relief in terms of prayer clause
(b). In view of alleged subsequent event as mentioned in additional
affidavit of plaintiff he has to take appropriate proceedings. From
discussion made above when plaintiff is at present not in possession of
suit premises then it cannot be said that he has got prima facie case and
that balance of convenience lies in his favour and he will suffer
irreparable loss if relief sought in terms of prayer clause (b) is refused.
Hence, I answer Point Nos.2 to 4 in negative.
In view of discussion made above notice of motion deserves to
be dismissed. Hence, pass following order.
ORDER
Notice of Motion No.1265 of 2019 stands dismissed and
disposed off accordingly.
(M. T. Asim)
Judge
Date : 16.09.2019 Gr. Bombay
Typed on : 16.09.2019
HHJ signed on :
-- 7 of 8 --
NM No.1265/2019 ..8.. Suit No.591/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.09.2019, 5.30 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
16.09.2019
JUDGMENT/ORDER signed by P.O.
on
17.09.2019
JUDGMENT/ORDER uploaded on 17.09.2019
-- 8 of 8 --