Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM-1268-2019 in SCSU-199-2019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1268 OF 2019
(CNR No.MHCC01-003280-2019)
IN
SC SUIT NO.199 OF 2019.
(CNR No.MHCC01-015966-2018)
Madhusudan Jaswantlal Dani & Ors. }...PLAINTIFFS.
Versus
Kirit Bhgwat Damaniya }...DEFENDANT.
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Shri.Manish Jain, learned advocate for the plaintiffs.
Smt. Varsha Shah, learned advocate for defendant.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 17/03/2022)
1. This Notice of Motion is taken out by the plaintiffs for
seeking following relief;
a) Pending the hearing and final disposal of the suit, the
defendants their agents, servants and/or any persons claiming
through them be restrained not to encroach or dispossess the
plaintiffs without following due process of law in respect of the
suit property i.e. Room No.33, Jamnadas Sadan, situated at L.B.S.
Marg, Ghatkopar (W), Mumbai-400 086 by an order of injunction
of this Hon’ble Court.
2. Read the affidavit filed in support of the Notice of Motion
and affidavit in reply filed by the defendant. Heard learned Shri Manish
Jain advocate for the plaintiffs and learned Smt. Varsha Shah advocate
for the defendant. Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiffs? ...No.
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ii) Whether balance of convenience lies in their
favour? ...No.
iii) Whether irreparable loss will cause to the
plaintiffs if temporary injunction as prayed is not
granted? ...No.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiffs argued that after the death of original tenant
Chunilal Damaniya, his nephew Dilip Damaniya was residing in the suit
premises but said nephew Dilip expired on 07/07/2018 after which, the
suit premises came in possession of the plaintiffs. He argued that
plaintiffs have sent notices on the address of the suit premises for
making demands of arrears of rent but no reply is given. He argued that
by claiming himself as distant relative of deceased original tenant,
defendant had been to the plaintiffs with a request to transfer the suit
premises in his name. He argued that defendant is/was never in
possession of the suit premises, defendant is residing on the address
mentioned in the title clause of the plaint and defendant has threatened
to illegally dispossess the plaintiffs from the suit premises due to which,
it is necessary to grant temporary injunction in favour of the plaintiffs.
5. As against this, learned advocate for the defendant argued
that plaintiffs have made self contradictory statements in the plaint in
respect of their possession over the suit premises. She argued plaintiffs
have contended in plaint that suit premises came in their possession
after death of nephew Dinesh of original tenant who has admittedly
expired on 07/07/2018 yet, the notices placed on record show that rent
was claimed for period till 31/08/2018. She argued that defendant is in
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possession of suit premises, letters of administration is granted in favour
of the defendant hence, plaintiffs are not entitled for the relief claimed.
6. Case of the plaintiffs is that Chunilal Damaniya was the
original tenant in respect of the suit premises who expired in year 1978
after which, nephew Dilip Damaniya of the original tenant was residing
in the suit premises but said nephew also expired on 07/07/2018. It is
the contention of the plaintiffs that after the death of said nephew Dilip
of original tenant, possession of the suit premises came to the plaintiffs
because nobody was residing in the suit premises. Defendant’s
contention is that Dinesh Damania was his brother and defendant is
residing in the suit premises. Defendant has produced documents in
support of his contention which contain a copy of letters of
administration. Said letters of administration is granted in favour of the
defendant for transfer of tenancy rights in respect of the suit premises.
Learned advocate for the plaintiffs argued that plaintiffs were not party
to the petition filed for grant of letters of administration. Even if his said
argument is accepted, it does not appear that grant of said letter of
administration is challenged till date by the plaintiffs hence, said letters
of administration is helpful for the defendant.
7. Plaintiffs have contended that they came in possession of
the suit premises after the death of nephew Dilip of the original tenant
however, they have not produced any material to show that they were
ever in possession of the suit premises. On the other hand, plaintiffs
themselves have produced copy of notice dtd.31/08/2018 given to the
original tenant Chunilal on the address of the suit premises. If the
plaintiffs came in possession of the suit premises after the death of the
nephew of original tenant who expired on 07/07/2018, then question
arises as to why plaintiffs have issued notice on 31/08/2018 on the
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address of the suit premises and that too, to the original tenant when it
was well within their knowledge that said original tenant has expired in
year 1978. Plaintiffs have not clarified the said aspect. Likewise, it is not
explained by the plaintiffs as to how they claimed arrears of rent in
respect of the suit premises till 31/08/2018 when, according to them,
they came in possession of the suit premises after death of the nephew
of original tenant who admittedly expired on 07/07/2018. Again,
contention of defendant that Dinesh Damania was his brother is
supported by copies of AADHAR Cards of defendant and Dinesh
Damania produced on record by the defendant.
8. Having regards to those aspects, this court is of the opinion
that plaintiffs have not approached the court with clean hands. There is
no material for
prima-facie accepting the contention of the plaintiffs
that they are in possession of the suit premises hence, neither
prima-
facie case nor balance of convenience do lie in favour of plaintiffs. In
the result, there is no question of causing any irreparable loss to the
plaintiffs if temporary injunction as claimed is not granted in their
favour. For these reasons, I answered point Nos.(i) to (iii) accordingly
and pass the following order.
O R D E R
Notice of Motion No.1268 of 2019 is dismissed.
Date : 17/03/2022. (P.P.RAJVAIDYA)
Dictated on : 17/03/2022. Judge, C.R.No.62,
Checked on : 19/03/2022. City Civil Court,
Signed on : 19/03/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
22.03.2022 at 11.10 a.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 17/03/2022
Order signed by P.O. on 19/03/2022
Order uploaded on 22/03/2022
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