Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. Order in N/M no.1498/19 in S.C.Suit 445/2019
MHCC010039542019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1498 OF 2019
IN
S.C.SUIT NO. 445 OF 2019
Mr. Maroof Ahmed Khan ...Plaintiff.
Versus
Mr. Ishtiyaq Ahmed Shaikh ...Defendant.
Appearance:
Adv. Shri Kudalkar for the Plaintiff.
Adv. Smt. Sapna Khobragade for Defendant
CORAM : SMT. S.S.NAGUR
JUDGE, (C.R.NO.62)
DATE : 02.05.2026
ORAL ORDER
(Dictated in open Court)
1. The Notice of Motion is filed by plaintiff to temporarily
restrain defendant from claiming through him or creating third party
right in suit Gala No.1, Plot No.109-117, Sundardas Mill Compound,
Barrister Nath Pal Marg, 162 Reay Road, Mazgaon, Mumbai – 400 010 ;
to pay sum of Rs.40,000/- towards compensation for unlawful use
occupation and remaining the suit premises pending the final disposal
of the suit.
2. The Notice of Motion is supported by affidavit of plaintiff.
The plaintiff has adopted contents of the plaint. The plaintiff stated that
he is in use occupation and possession of suit shop area admeasuring
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225 sq.ft. made of triangular shape of tin shed partly B.M.wall and
patra sheet roof, a tin shed stands on land belonging to Mumbai Port
Trust, leased out to M/s. Swastik Cleaning Corporation and the plaintiff
is the sub-tenant of Mumbai Port Trust.
3. The plaintiff stated that he started machine workshop. The
Shop and Establishment license is obtained in his name on the strength
of his inventory of various latches, wielding, grinding machines, small
steel cupboard containing records, tools etc. The defendant is resident
of Baigan Wadi Slum located at Govandi-Mankhurd Mumbai. He does
not have any working place and used to work from different places in
and around Reay Road as lathe machine operator. The defendant was
never in possession of suit shop. The defendant approached the plaintiff
to get employment when he came to know that the plaintiff main
machine operator Mr. Saeed Khan being Supervisor has left the plaintiff
and plaintiff is looking out someone to run and conduct the workshop
efficiently. The Supervisor Mr. Saeed Khan recommended the defendant
as the defendant had work under him. The plaintiff employed him in
the capacity of casual worker Supervisor on a retainer salary based on
performance and work accomplished from the month of July 2015.
4. The plaintiff stated that the suit shop is located at par end
of cross road abutting slum separate wall. The defendant started
befrending anti social elements of adjoining slum of Nariyal Wadi
Chawl. The neighbours of plaintiff and all small businessman complaint
about the behaviour of the defendant. The defendant quarreled with
one Mr. Naseer Khan a businessman twice in the month of April and
May 2016. The same was reported to Byculla Police Station for
intervention. The defendant tried to get his name recorded in the
electricity connection and to get the license from BMC. But the same
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could not be recorded by him as the authorities refused. The defendant
is trying to replace plaintiff’s name with his name for the suit shop by
getting license and electricity connection. The defendant is enjoying the
suit shop. The plaintiff is suffering monetary loss of Rs.40,000/- per
month on account of unlawful occupation and enjoyment of the suit
shop. Hence prayed to allow the notice of motion.
5. The defendant filed reply and denied the contents of the
notice of motion/plaint in toto. The defendant stated that the plaintiff
has suppressed the suit filed by the defendant and the Notice of Motion
No.309/2018 taken by the plaintiff for the same reliefs which was
rejected. He has reiterated the contents of written statement filed by
him. The defendant stated that he filed Suit No.2880/2016 against
plaintiff for injunction restraining the plaintiff from dispossessing the
defendant without due process of law. The plaintiff is not sub-tenant of
M/s. Swastik Cleaning Corporation as per letter dated 24/04/1995
relied by the plaintiff.
6. The defendant stated that he is carrying on business of
lathe machine in the suit shop and he is in possession since 2008. There
is electricity connection provided in the suit shop it stands in the name
of plaintiff. The plaintiff is having grudge against defendant therefore
he was sending his persons to extort illegal money and threatened to
vacate the suit premises. Accordingly on 04/04/2016 one Mr. Naseer
Tayab Khan visited the suit shop and quarreled with the defendant.
Therefore N.C. complaint was filed at Byculla Police Station. The said
Naseer Tayab on 23/05/2016 attack and assaulted the defendant.
Therefore the complaint was filed by him at Byculla Police Station. On
03/10/2016 plaintiff personally visited the suit shop alongwith gundas
and attempted to take forcible possession of the suit premises.
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Therefore the defendant has filed complaint against the plaintiff. The
plaintiff again visited the suit shop on 13/12/2016 at 12.30 PM with
gundas. On that day also plaintiff could not get forcible possession from
the defendant. The defendant approached the police station to file
complaint. It was not registered because dispute is of civil nature.
Therefore he filed Suit No.2880/2016 against the plaintiff. The plaintiff
has not made out prima facie case. Hence prayed to reject the notice of
motion.
7. The plaintiff has filed affidavit in rejoinder and has denied
the contents of reply in toto.
8. In view of the above pleadings of the plaintiffs, the
following points arise for my determination and the reasons with
finding thereon are as under:-
POINTS FINDINGS
1) Whether the plaintiffs have
made out a prima facie case?
NO.
2) In whose favour balance of
convenience lies?
Not in favour of both the parties.
3) Who will suffer irreparable
loss?
Not in favour of both the parties.
4) What order? NM is rejected.
R E A S O N S
9. Heard Advocate Shri Kudalkar For plaintiff and Advocate
Smt. Sapna Khobragade for defendant. Perused contents of notice of
motion, reply and rejoinder supported by affidavits.
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As to Point Nos. 1 to 3.
10. The plaintiff is sub-tenant of Swastik Cleaning Corporation.
The defendant claims to be in possession of the suit shop. It is the case
of the plaintiff that the Bombay Port Trust has recognised his sub-
tenancy. The plaintiff has relied on the letter issued by Bombay Port
Trust dated 24/04/1995. He has relied on clause 11 of the said letter
that “without the prior written permission of this Port Trust, you shall not
sublet/assign/transfer/give on licence or part with possession of the said premises or
any portion thereof in any manner whatsoever/except the existing occupant viz. 1)
Shri Maruf, 2) Shri Sayed Mushtaq Hussain, 3) Shri Mohamed Ayub, 4) Shri Sayed
Mohamed Ibrahim, 4) Shri Jamil Ahmed, 6) Shri Abdul Gaffar Khan, 7) Shri
Mohamed Aslam Khan permitted to occupy the part of the premises for an area
admeasuring 100.37 sq. mtrs. (Approx.). However, the Bombay Port Trust shall not
withhold such consent without reasonable cause. In the event of the Bombay Port
Trust granting such permission, on payment of addl. rent/premium, the
transferee/assignee will hold on the same terms and conditions as embodied in the
15 monthly lease agreement, subject to further variation in rent/payment of
premium. It is presumed that the lessees have not committed any breach. However,
at a later stage if it is observed, the lessees would be liable for such action as may be
warranted.”
11. The case of the plaintiff is that the defendant is employed
with him and he is only allowed to do the work. The plaintiff is now
claiming the compensation of Rs. 40,000/- for lawful occupation and
not to create third-party interest. The other suit is pending between the
parties bearing S.C. Suit NO. 2880/2016. The said suit is filed by
defendant against plaintiff to protect his possession. In the said suit the
plaintiff preferred Notice of Motion No. 309/2018. It was dismissed on
24/07/2018 (Both the suits are in this court. The Notice of Motion in
that suit is decided by me today itself filed by plaintiff to protect his
possession. Therefore the reference of the Notice of Motion No.
309/2018 is stated here as it is relevant to the facts). The Notice of
motion No. 309/2018 was filed by plaintiff in the said suit to get
compensation of Rs. 40,000/- from plaintiff. My predecessor in the said
order observed that the plaintiff did not prefer counter-claim/separate
suit to seek monetary benefit. Therefore it seems that the plaintiff has
filed the separate suit and claiming in the Notice of Motion the
compensation.
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12. The plaintiff claims to be sub-tenant of Bombay Port Trust.
The nature of relief sought by plaintiff in this Notice of Motion his
compensation towards occupation of defendant. This act of the plaintiff
shows that he is accepting the possession of defendant in the suit shop
thereby claiming compensation though the said premises is not owned
by him. The plaintiff is not owner of the premises in which suit shop is
situated. The said premises is owned by Bombay Port Trust a
Government authority. The parties cannot be allowed to use the
properties owned by Government by their own choice. Therefore I hold
that plaintiff has not made out prima-facie case and answer point No. 1
in negative.
13. The plaintiff has not made out prima-facie case. The
plaintiff is only sub-tenant of Bombay Port Trust. The parties cannot be
allowed to use and occupy the properties owned by the Government
according to their choice by taking recourse of the Court Order.
Therefore I hold that the balance of convenience is not in favour of both
the parties. No irreparable loss will cause to the parties. Accordingly
answering point No. 2 and 3 pass following order.
ORDER
1. Notice of Motion No. 1498 of 2019 is rejected.
2. Parties to bear their own cost.
3. Accordingly, Notice of Motion is disposed of.
(Smt. S.S. Nagur)
Judge
City Civil Court,
Date :02-05-2026 Gr. Mumbai.
Pronounced on : 02-05-2026
Directly dictated on PC : 02-05-2026
Typed on : 02-05-2026
Checked & Sign on : 02-05-2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Typist
Mr. Prasanna P. Ekashinge	02-05-2026 1.55 PM
Name of the Judge (With C.R. No.) HHJ Smt.S.S.Nagur (C.R.No. 62)
Date of Pronouncement of
JUDGEMENT /ORDER
02-05-2026
JUDGEMENT /ORDER signed by P.O.
on
02-05-2026
JUDGEMENT /ORDER uploaded on 02-05-2026
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