Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No. 1395 of 2019 L.C. Suit No. 3214 of 2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 1394 OF 2019
IN
L.C. SUIT NO. 3214 OF 2018
Mr.Gurdarshan Inder Singh .. Plaintiff
Versus
Mr. Jitendra Singh Khurana. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.09)
DATE : 3rd May, 2019
Mr.Sujit Pathak, ld. adv. for plaintiff.
Mr.Dalvi, ld. adv. for defendant.
ORDER
This is a notice of motion taken out by the defendant for
temporary injunction restraining the plaintiff, from disturbing his
occupation and possession over flat bearing no.603 situated at ''Ruby''
Gemvihar Coop. Hsg. Society, Powai, Mumbai which is a suit property
and subject matter described in the plaint. The defendant has also
prayed for temporary injunction restraining plaintiff from taking any
steps towards locking and closing the suit flat referred above.
According to the defendant, such locking creates hindrance in the
ingress and egress of defendant at suit flat. The defendant has filed his
affidavit in respect of notice of motion contending that though the suit
flat stands in the name of plaintiff and defendant is residing in suit flat
since 2001. The suit flat according to the defendant is a property
acquired from the partnership business in which plaintiff and defendant
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were having partnership with 50% shares since 1992. It is contended
that plaintiff is occupying the flat in building opposite to suit flat.
According to defendant, plaintiff has taken law in his hands when
defendant was out of Bombay for offering prayers at Amrutsar. It is
alleged that when defendant had gone to Amrutsar, the plaintiff
alongwith wife of defendant came to suit flat and removed all the
articles belonging to the wife of defendant. Thereafter, the plaintiff,
wife of defendant left suit flat. It is further alleged while leaving said
suit flat, plaintiff and wife of defendant locked the suit flat from the
outside so as to ensure that defendant should not be able to go in side
the suit flat. As mentioned in the affidavit of defendant, when
defendant returned back and went inside of suit flat, the latch keys of
suit flat were available with the defendant. When defendant entered
into suit flat, he has saw one girl by name Kinjal Shah in the said suit
flat. It alleged that Kinjal Shah had occupied one bedroom in suit flat.
She told to defendant that plaintiff and wife of defendant had inducted
Kinjal Shah in suit flat as a paying guest. It is also informed by Kinjal
Shah that plaintiff and wife of defendant informed to the Kinjal Shah
that if defendant will come inside the flat, she should informed about it
to them. It is further alleged that when defendant entered into suit
flat, Kinjal Shah perhaps made phone calls to plaintiff and wife of
defendant who came to the suit flat and they started abusing defendant.
The plaintiff and wife of defendant asked defendant to get out from the
suit flat.
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2. It is contended that defendant is in lawful possession of
the suit flat is more than last 25 years. He has no other place to stay
in Mumbai, hence, defendant has refused the threats of plaintiff and
wife of defendant. On such refusal the plaintiff and wife of
defendant went to police station and police took defendant to the
police station. When defendant was showing to police the documents
of defendants like passport, ration card, society letter, the police
officer who was acting under control of plaintiff threatened
defendant. Said police officer even arrested defendant for an offence
punishable under section 448 of the Indian Penal Code. It is
contended that defendant failed to understand as to why his
legitimate entry in suit flat became an offence of trespass. It alleged
that under the threats and with the help of police, defendant was not
allowed to enter in defendant's own flat. Thereafter, this suit came to
be filed with a prayer to evict the defendant from the suit flat.
3. As mentioned in the affidavit of defendant, he was
compelled to obtain bail in the case referred above which was falsely
registered against the defendant. It is alleged that plaintiff with the
help of police is not allowing defendant to enter suit flat. Further
plaintiff openly instructed Kinjal Shah that in case defendant would
again attempt to occupy suit flat, Kinjal Shah should register the case
of sexual assault so as to harass defendant. According to the
defendant he is residing in the suit flat since last many years. He is
deprived of his house without following due process of law. Further,
defendant has apprehension that plaintiff and wife of defendant
would not allow defendant to stay in suit flat even though defendant
has keys of suit flat.
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4. It is contended that defendant has filed his written
statement in the suit and in said written statement he has
demonstrated as to how he is a joint owner of the suit flat as well as
it is property which is acquired by the plaintiff in his own name from
the partnership income. As contended by defendant, plaintiff is not
occupying suit flat and plaintiff is not allowing defendant to go inside
the suit flat. Plaintiff with the help of police is giving threats to the
defendant, therefore, now defendant is on road and he is required to
file N/M for injunction. According to defendant, if injunction will be
granted, plaintiff will not suffer from any loss. However, if injunction
will not be granted, the defendant may suffer from irreparable loss.
In his affidavit, defendant has undertaken that he will not object the
occupation of Kinjal Shah in one bedroom in suit flat for which
Kinjal Shah might have to pay the consideration if any. The
defendant has undertaken not to disturb Kinjal Shah in enjoying
bedroom alloted to her till end of her agreement with plaintiff.
5. The plaintiff has resisted notice of motion by filling
affidavit in reply. The plaintiff has contended that notice of motion
taken out by defendant will be governed by Order 39 of the Code of
Civil Procedure. The plaintiff has reproduced Order 39 Rule 1(a) (b)
(c) of the Code of Civil Procedure. By reproducing Order 39 Rule 1
of the Code of Civil Procedure, the plaintiff has contended that from
said provision of law it becomes clear that legislature has conferred
power upon the Court to grant temporary injunction in any of the
cases innumerated under clause (a), (b),(c) of Rule 1 of Order 39 of
the Code of Civil Procedure.
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6. According to plaintiff, legislature has granted right to the
plaintiff alone for claiming relief on temporary injunction in the
situation covered under clauses (b) & (c) of Order 39 Rule (1) of the
Code of Civil Procedure. According to plaintiff, the intention of the
legislature is very much clear as the word ''defendant'' is used in
clauses (b) & (c). Hence, according to the plaintiff, defendant is
barred by law to claim relief of temporary injunction, in case covered
under clauses (b) & (c) of Order 39 Rule 1 of the Code of Civil
Procedure. Hence, defendant can claim injunction in the case
covered under clause (a) of Order 39 Rule 1 of the Code of Civil
Procedure, if defendant can make out prima facie case. Hence,
according to plaintiff notice of motion taken out by defendant is not
maintainable.
7. It is further contended that in notice of motion and
affidavit filed by defendant, there is not even a single averment made
out by defendant to the effect that suit property is in danger of being
wasted, damaged, alienated and wrongfully sold in execution of a
decree. Therefore, according to plaintiff, defendant has not claimed
temporary injunction under clause (a) of Order 39 Rule 1 of the Code
of Civil Procedure. According to plaintiff, the prayer clause from the
notice of motion, clearly indicates that defendant is claiming for the
case covered under clause (c) of Order 39 Rule 1 of the Code of Civil
Procedure to which the defendant is not legally entitled. Hence,
according to plaintiff, even, without going into factual aspect stated
in the notice of motion deserves to be dismissed. In his affidavit, the
plaintiff has contended that entire story put forth by defendant
regarding suit flat being purchased from the profits derived from the
alleged partnership business is concocted story. The plaintiff is
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contended that suit flat was purchased in the year 1999 by registered
agreement dated 05th August 1999. Further, the marriage of plaintiff's
daughter and defendants was solemnized on 10th June, 1991. It is
contended that plaintiff entered into business agreement with
defendant to conduct business on partnership basis. According to
plaintiff, within the period of less than 8 years of so called
partnership business, the handsome profit was earned to such a
extent that immovable property could be purchased at prime
location. It is alleged that defendant is trying to portray that suit
property although it stands in the name of plaintiff, it is jointly
owned by defendant on account of the so called partnership business.
However, defendant has not filed any proceeding for declaration of
suit property as benami transaction. It is contended that defendants
contention about partnership business stands refuted on the basis of
Deed of Dissolution of partnership which was executed between the
plaintiff and defendant on 15th April 2017. It is contended in the said
Dissolution Deed, the terms and condition are clearly stated about
defendants retirement from the partnership business. In the clause
no. 3 of the said Dissolution Deed, it is clearly mentioned that '' The
Retiring Partners has no any right or liabilities in said business and its
assets from 1st April, 2017''.
8. According to plaintiff, the partnership business which
was subject matter of Dissolution Deed came into existence in the
year 2013 on the basis of partnership deed dated on 01st March, 2013
executed between plaintiff and defendant. It is alleged that
defendant has annexed the partnership deed with his written
statement. However, defendant has not annexed the Deed of
dissolution, list of partners to his written statement. Hence,
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according to the plaintiff, the conduct of defendant leads to an
inference that the defendant is trying to play fraud with court for
obtaining favorable order. As contended by the plaintiff so called
partnership business came into existence in the year 2013 and it was
dissolved in the year 2017. Said Deed of Dissolution of partnership is
signed by defendant and after receiving summons of this Court,
defendant has come up with concocted story containing that
partnership business was in existence since 1999. It is further
contended that defendant claiming that defendant is dispossessed
without following due process of law. But said contention is far away
from truth. The plaintiff is contended that defendant was residing in
suit premise with daughter and grant daughter of plaintiff and if
there was any dispossessed without following due process of law,
then the other two members residing in suit flat would have raised
you and cry. However, plaintiff's daughter and grand daughter
having concurred with the defendant about defendant's eviction from
suit flat. As such according to plaintiff, defendant is made attempt to
create imaginary story. It is contended that FIR lodged against the
defendant is at the stage of investigation. Hence, it will be unfair to
adjudicate upon facts stated in the said F.I.R. With the help of this
contention, the plaintiff is prayed the notice of motion is dismiss filed
by the defendant.
9. Heard learned advocate for defendant who has referred
documents annexed to the affidavit of notice of motion filed by
defendant. According to defendant's advocate the defendant is
legally occupying suit flat because defendant never evicted it and on
the contrary plaintiff's daughter who is wife of defendant has left the
suit flat and the defendant is occupying it. The reference of the
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partnership business of plaintiff and defendant was given by advocate
for defendant and it is argued that defendant is also the owner of the
suit flat even though the suit flat is purchased in the name of
plaintiff. Plaintiff's advocate strongly argued that notice of motion
taken out by defendant is not maintainable. In the reply filed by
plaintiff to notice of motion no. 1394 of 2019, the plaintiff has
pleaded Order 39 Rule 1(a), 1(b) and 1(c) of the Code of Civil
Procedure and it is argued that in view of provision of Order 39 Rule
1 of the Code of Civil Procedure defendant is not entitled for
temporary injunction against plaintiff. In support of his argument,
plaintiff's advocate placed reliance on various case laws.
10. I have given serious consideration to the arguments
advanced. I have carefully perused the documents filed by the
parties along with plaint, written statement and notice of motion no.
1394 of 2019. While deciding the notice of motion no. 882 of 2019
which was heard with this notice of motion, I have come to the
conclusion that neither plaintiff is possessing the suit flat nor
defendant is possessing the suit flat. Admittedly, at present the
defendant is residing with his sister and brother in law at Andheri as
summons of the suit is served upon to the defendant upon address of
his sisters house which is at Andheri showing that defendant is not
possessing suit flat. The defendant has contended that when he
returned from Amrutsar and entered into the suit flat, plaintiff and
plaintiff's daughter lodged the F.I.R. against defendant and police
took action against defendant. From the pleadings of the parties, it
becomes clear that there is misunderstanding between plaintiff and
his daughter and defendant, due to this said misunderstanding there
is martial dispute between plaintiff's daughter and defendant as both
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plaintiff's daughter and defendant are intending to use the order of
this Court to pressurize to each other, it seems that notice of motions
taken out by plaintiff and defendant are nothing but, product of
martial dispute between plaintiff's daughter and defendant.
Admittedly, defendant is residing with his sister and he is intending
that with the help order passed by the Court in the notice of motion
taken out by the defendant, he should intending again to enter in suit
flat. I have already come to the conclusion that issue about the
defendant's share in suit flat can be decided on merits and for that
purpose parties to the suit will have to adduce their evidence. At this
juncture, from the document of title produced by the plaintiff on
record, it becomes clear that plaintiff is owner of the suit flat and it is
settled position of law that for granting injunction against the true
owner of property some cogent evidence about defendants case is
necessary to be brought on record. It is already observed that there is
martial dispute between plaintiff's daughter and defendant. It seems
that to pressurize each other, plaintiff and defendant are intending to
use this Court as weapon. However, the plaintiff and the defendant
could not understand that reverse stroke of weapon like Court is
always dangerous. In such circumstances, I find that defendant has
failed in establishing prima facie case for granting temporary
injunction in favour of defendant. Admittedly, the title of the
property is in the name of plaintiff and is not name of defendant.
Hence, no question arises about the balance of conveyance in favour
of defendant because if defendant will enter into suit premises with
the help of order of this Court, it will amount to throw away the true
owner from his own property. Therefore, the balance of convenience
also not in favour of defendant. Already defendant's wife and
daughter are residing with plaintiff in some different place which is
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not part and parcel of the suit flat. As summons of this suit is served
upon defendant at his sisters address, it becomes clear that
defendant is not possessing the suit flat. As neither defendant, his
wife nor his daughter are residing in the suit flat at present, no
question arise of sustaining irreparable loss by the defendant on
rejection and prayer for temporary injunction as sought by defendant.
In such circumstances as defendant has failed to establish essential
ingredients for granting injunction, I find that defendant is not
entitled to relief sought in notice of motion no.1394 of 2019. Hence,
I proceed to pass following order.
ORDER
The Notice of Motion No.1394 of 2019 is stands
dismissed.
(K.P. NANDEDKAR)
Judge
City Civil Court,
Gr. Bombay.
03.05.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
11/07/2019 11.58 a.m. .P.R Wagh(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 03/05/2019
Judgment/order signed by P.O on 31/06/2019
Judgment/order uploaded on 11/07/2019
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