Final Order 1

Order Details: Notice of Motion
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MHCC010040092020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1317 of 2020
IN
S.C. SUIT NO.1122 OF 2020
Waris Ali Mohd. Shamim.
Age: 35 years, Occ: Business,
Drakkers, Shop No.7, Haqqani Estate,
Nr. Royal Hotel, CST Road, Kurla West,
Mumbai – 400070. .. Plaintiff.
Versus
Mohammed Shamim Mohd. Yasin.
Age: 55 years, Occ: Business,
R.26, Vishnudatt J Pandey Chawl,
Pipe Road Gwaliwala Tabela Kurla,
Mumbai 400 070. .. Defendant.
Advocates
Nuzhat Ansari for the plaintiff.
Hardik Desai alongwith P.D. Gandhi for the defendant.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 14th October, 2020
ORAL ORDER
Heard both parties on notice of motion filed on behalf of the
plaintiff claiming temporary injunction against the defendant
restraining him from entering and interfering with peaceful possession
of suit shop i.e., shop no. 7, House no.616-A, Haqqani Estates, S.G.
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Barve Marg, Kurla (W), Mumbai 400 704.
2. Perused plaint, documents, notice of motion and affidavit in
reply of the defendant to the notice of motion.
3. Plaintiff is son of the defendant. Plaintiff’s case is that suit shop
is a rented shop. Rent receipt is issued in the name of Mohammed Yasin
Wali Mohammed (deceased ) who was grandfather of the plaintiff and
father of the defendant. Plaintiff is regularly paying electricity bill
issued in the name of his grand father. Plaintiff is running business of
fabrics and garments under the name and style of “Drakkers” in the suit
shop. BMC issued registration certificate in the name of plaintiff for
running said business. Plaintiff is paying income in respect of his
business in the suit shop. Plaintiff is having bank account in the name of
his business in the suit shop. BMC also issued letter to the plaintiff for
putting up the display board in the suit shop without permission of the
BMC. According to the plaintiff he established said business in the suit
shop by taking loan from the bank. After the death of grand father of
the plaintiff, the defendant, plaintiff’s uncle Riyaz and Aunts Sharja and
Samiza allowed the plaintiff to do the business in the suit shop and pay
the rent to the landlord.
4. Advocate for the plaintiff submitted that plaintiff is in possession
of suit shop since year 2006 till date. Plaintiff had made payment of
Rs.15 Lakhs since 2006 to 2020. Defendant with the help of and on the
instigation plaintiff’s two brother namely Jamshed and Danish @ Sonu
threatened to dispossess the plaintiff from suit shop and take forcible
possession of the suit shop. On 03.09.2020, the defendant threatened
the plaintiff to throw out the stock in the suit shop and putting his lock
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on the suit shop and part with possession to any third party. Hence, the
plaintiff lodged report against the defendant on 05.09.2020 but the
police did not take action against the defendant. Hence the plaintiff
filed this suit for declaration, injunction and claiming temporary
injunction against the defendant. In view of above facts, advocate for
the plaintiff prayed for grant of temporary injunction restraining the
defendant from disturbing possession of the plaintiff in the suit shop
without following due process of law.
5. Advocate for the defendant submitted that suit is not tenable as
the plaintiff is seeking negative declaration. Plaintiff has no cause of
action to file this suit. Mohammed Yasin Wali Mohammed who was
grandfather of the plaintiff and father of the defendant, died intestate in
the year 1975 leaving behind the wife Smt.Badrunisa, his elder son i.e.,
the defendant, his younger son i.e., Riyaz, his elder daughter i.e.,
Samida and younger daughter Sharjahan. Samida is residing with her
husband. Sharjahan was married to one Faiyaz. She expired in the year
2014. Badrunisa expired in the year 2016. Afsarjahan is wife of the
defendant and mother of the plaintiff. Plaintiff, Jamshed, Danish @
Sonu and Roshan Ara are the children of the defendant. Roshan Ara is
leaving with her husband.
6. Late Mohd. Yasin Wali Mohd. was tenant of the landlord
Haqqani Public Charitable Trust in respect of suit shop. Rent receipt
were received in the name of late Mohd. Yasin Wali Mohd. Till date,
rent receipt are received in the name of Mohd. Yasin Wali Mohd.
7. In lieu of family arrangement, it was agreed that until further
arrangement, the defendant shall exercise dominion over the suit shop.
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Since then the defendant is in legal possession of suit shop and have
right to include and exclude others. Defendant is paying rent to the
landlord. Old rent receipt are kept in suit shop and plaintiff is misusing
the same. Defendant is earning his livelihood by driving taxi.
8. In the year 2006, plaintiff was 20-21 years old. Plaintiff
informed the defendant that he wants to start readymade garments
business and thus, open readymade garments retail shop in the suit
shop. For that, plaintiff requested the defendant to use the suit shop.
Earnings from said business would be used to meet the needs of family
members. Defendant informed the plaintiff that if he starts business
alongwith his youngest brother Sonu @ Danish, income from the said
business shop will be used to meet the needs of family members. Hence,
the defendant permitted the plaintiff and Sonu to use the suit shop.
Defendant provided Rs.4 Lakhs to the plaintiff and Sonu to open
readymade garment retail shop in the suit shop. Defendant arranged the
fund by selling his spare taxi and gold ornaments of his wife. Plaintiff
and Sonu started business of readymade garments in the suit shop in
the year 2006. At that time Sonu was 16 years old. Hence plaintiff was
looking after aspects of finance and statutory compliance in respect of
said business in the suit shop. Hence, the name of plaintiff is reflected in
income tax record and Shop and Establishment certificate etc. Plaintiff
was never using money from the said business to meet the needs of
family members. Plaintiff was paying meager amount of Rs.400/- per
month to Sonu from the year 2006 to 2017. Hence in the year 2017,
Sonu availed loan for starting his business of readymade garments and
he started his individual business of readymade garments in the suit
shop. Till date, Sonu is simultaneously carried on his individual
business in the suit shop. Plaintiff was and is never in exclusive use of
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the suit shop.
9. Plaintiff has purchased his separate place of residence at Mira
road and residing there with his family. In the year 2012, plaintiff asked
the defendant to provide him more funds for expansion of business.
Defendant sold his property in Uttarpradesh for Rs. 7 Lakhs and
transferred said amount to account of the plaintiff on 05.12.2012. Since
2006, plaintiff is utilizing earnings from the business in the suit shop
and for purchasing property for his own. Defendant denied that plaintiff
paid Rs. 15 Lakhs to the defendant.
10. Due to outbreak of Covid-19 and consequential lock down, the
defendant asked in the last week of August 2020 to the plaintiff and
Sonu for monetary help to overcome financial difficulties. Sonu has not
shown any agitation in respect of the decision of the defendant but the
plaintiff refused. Hence on 03.09.2020, the defendant terminated oral
permission given to plaintiff to use suit shop. Thus plaintiff's possession
in suit shop is illegal and unlawful.
11. On 03.09.2020, Jamshed was out of station from 29.07.2020 to
11.09.2020. Plaintiff lodged false report in police station against the
defendant, his sons Jamshed and Sonu @ Danish that they threatened
the plaintiff to dispossess from suit shop. Neither defendant nor
Jamshed nor Danish threatened to dispossess the plaintiff from suit
shop. Plaintiff have suppressed material fact from the Court. Plaintiff is
not in exclusive possession of suit shop. Hence advocate for the plaintiff
submitted for dismissal of the notice of motion. .
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12. In support of contentions, advocate for the defendant relied on
the Judgment of Hon’ble Apex Court in
(i) Maria Margarida Sequeria
Fernandes and others Versus Erasmo Jack de Sequeria (Dead) through
L.Rs. , Civil Appeal No.2968 of 2012 dated 21.03.2012 and (ii)
127(2006) DLT 431, decided on 09.01.2006, Thomas Cook (India)
Limited vs. Hotel Imperial and Ors. Having gone through the Judgments
filed on behalf of advocate for the defendant, it appears that facts stated
therein are totally different from the facts of the present case. Hence
citations relied on advocate for the defendant are not applicable to the
case in hand.
13. From the perusal of plaint, documents and reply of the
defendant, it prima-facie evident that plaintiff and his brother, Sonu @
Danish are carrying out business of readymade garments from suit shop.
Possession of plaintiff alongwith his brother Sonu @ Danish is proved
from the documents and photographs filed on behalf of both parties.
Defendant also admitted possession of the plaintiff in suit shop since the
year 2006. Other facts mentioned in the plaint and reply of defendant
are not material at this stage. Whether report lodged by the plaintiff is
false or correct can be decided at the time of evidence. Possession of
plaintiff in suit shop is established on record.
14. Defendant in his reply submitted that he orally terminated
license of the plaintiff to carry out business in the suit shop. Defendant
also submitted that defendant have right to exclude and include others
in suit premises. Thus it is clear that one day, the defendant will
dispossess the plaintiff from suit shop without due process of Law or
part with possession of suit shop to third party if injunction is not
granted to the plaintiff. It is well settled that person in settled
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possession of immovable property is entitled to protect his possession
and no person can dispossess him without following due process of law.
Hence possession of the plaintiff over suit shop needs to be protected till
decision of the suit.
15. Under the facts, circumstances and documentary evidence on
record, plaintiff made out prima-facie case for grant of temporary
injunction in his favour. Balance of convenience also lies in favour of the
plaintiff. Plaintiff would suffer irreparable loss if injunction is not
granted as he is running business of readymade garments from suit
shop. Hence following order.
ORDER
1. NM No. 1317/2020 is allowed and made absolute in terms of
prayer clause (a).
2. Defendant is restrained from disturbing possession of the
plaintiff in suit shop till decision of the suit.
3. Notice of motion is disposed of.
4. Authenticated copy be given to advocate for plaintiff.
(Sunil T. Soor)
Judge
Date : 14.10.2020 Gr. Mumbai.
Typed on : 14.10.2020
HHJ signed on : 19.10.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.10.2020, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
14.10.2020
JUDGMENT/ORDER signed by P.O.
on
19.10.2020
JUDGMENT/ORDER uploaded on 19.10.2020
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