Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1349/20(Suit(St.) 3826/20)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1349/2020
(CNR No. MHCC010041392020)
IN
S.C. SUIT (STAMP) NO. 3826/2020
Mr Krishnamani Jayjay Ram Gupta ..Plaintiff
V/s.
1. Mr. Parmeshwar Sriram Gupta
2. Smt.Anita Parmeshwar Gupta
3. Mr. Somnath Sriram Gupta
4. Smt Gudiya Somnath Gupta ..Defendants
Appearance:
Ld. Adv. Mr. Pratap Singh and Ld.Adv. Mr. Pal for plaintiff.
Ld. Adv. Mr. Thorat with Ld.Adv. Mr. Rajiv Singh and Ld. Adv. Mr.
Jayant Puranik for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 22.12.2020.
ORDER
1. The plaintiff has taken out this draft notice of motion in a
suit filed against defendants, seeking relief of declaration and perpetual
injunction. In the present Motion, the plaintiff has prayed for grant of
temporary injunction against the defendants from disturbing his
possession in respect of suit shop premises bearing no. MG1, 1/17 Opp.
Sane Ahmadi Hotel, CST Road/ S.G. Barge Marg, Tansa Pipeline,
Thakkar Bappa Colony, Chembur, Mumbai 400 071. The plaintiff has
also prayed for restraining the defendants temporarily from obstructing
or interfering with his possession of the suit shop and causing any
nuisance to his peaceful and smooth functioning of the business
conducted by the plaintiff in the suit shop, during pendency of the suit.
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It is seen from the record that, there were office objections in this suit
which were removed by the plaintiff. During lockdown, on 29.6.2020,
when the matter had come up before Incharge Court CR04 for passing
orders of interim relief, after hearing both the sides, the Incharge Court
had refused the request for grant of adinterim relief and oral prayer
was rejected. It is seen that, against above said order, the plaintiff had
approached the Hon'ble High Court by filing an Appeal against Order
bearing No.8/2020, which was heard through videoconferencing on
3.7.2020. After some arguments were advanced, Ld. Counsel for the
plaintiff sought to withdraw the appeal and it was dismissed as
withdrawn, with certain directions. Hon'ble High Court had directed
that, the notice of motion for interim relief pending before this court to be
heard at the earliest possible, after physical court functioning fully resumes
(emphasis added).
2. Accordingly, Ld. Counsels and parties to the suit had
appeared before this court on 11.8.2020 and matter was kept for
hearing on notice of motion and interim relief high on board on
2.9.2020. Thereafter,due to various circumstances and reasons
mentioned in the Roznama, the matter was further adjourned to
15.9.2020 and 29.9.2020. Thereafter on 8.10.2020, when the matter
was taken up for urgent hearing on notice of motion/ adinterim relief,
Ld Counsel for the defendants had objected to early hearing by making
reference to the order passed by the Hon'ble Bombay High Court dated
3.7.2020, wherein it is mentioned that, hearing on the notice of motion
should be taken up as early as possible on merit after physical court
functioning is resumed. Ld. Counsel for the defendants submitted that,
regular court functioning is yet to start, therefore it will not be proper to
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proceed for hearing on merit on the notice of motion. However, after
hearing Ld. Counsels for both sides, and after going through the order
passed by the Hon’ble High Court dated 3.7.2020, I had mentioned in
the order sheet dated 8.10.2020 that the pleadings in the notice of
motion are complete and physical functioning of the court has already
started in respect of the urgent matters. Therefore, it would be proper
to proceed for hearing of the notice of motion on merit.
3. I have heard Ld. Counsels for both sides at length on
14.10.2020 and 19.10.2020. Ld Counsels for both sides were also
permitted to submit their written notes of arguments in view of
restricted working hours of the court and accordingly, the written notes
have been submitted by both sides in support of their contentions. I
have gone through the same and taken into consideration various
authorities cited and relied upon by the Ld. Counsel for defendants.
4. After hearing Ld. Counsels for the plaintiff and the
defendants on the Motion, this court is required to consider, whether
the plaintiff has made out a prima facie case and balance of convenience
for grant of temporary injunction, as prayed, and whether the plaintiff
has been able to show that if the temporary injunction is not granted in
his favour, whether he will suffer irreparable loss which will not be
compensated in terms of money.
5. The case of the plaintiff can be gathered from the pleadings
in the plaint as well as affidavit filed in support of the notice of motion
along with documents dated 19.6.2020, additional affidavits along with
documents dated 2.9.2020 and 19.10.2020 along with documents and
photographs. It is the case of the plaintiff that,he is in possession and
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occupation of the suit shop bearing no. MG1, 1/17 Opp. Sane Ahmadi
Hotel, CST Road/ S.G. Barge Marg, Tansa Pipeline, Thakkar Bappa
Colony, Chembur, Mumbai 400 071 and is carrying his business in the
name and style as “M/s. Krishna Chana Bhandar” and is staying along
with his family members for the last several years. The suit shop is
functioning in the area of 14 ft. X 17 ft. made up of BM Wall and AC
Sheet roof with intermediate wooden mezzanine floor, as shown in the
map filed with the suit and referred as “suit premises” vide Annexure
Exh.A. It is submitted that, the plaintiff and the defendants no.1 and 3
are brothers and defendant no.2 is the wife of defendant no.1, both
residing at the address mentioned in the cause title of the plaint.
Defendant no.4 is the wife of defendant no.3 and both are residing at
the address mentioned in the cause title of the plaint.
6. It is submitted that, the plaintiff is in exclusive use and
occupation of the suit premises for more than 35 yrs. The suit premises
are acquired by the the adoptive father of the plaintiff i.e. Shri
Jayjayram Hazari Gupta from owner Qureshi in the year 1980. When
the plaintiff was aged about 14 yrs., the plaintiff along with his adoptive
father were doing business of selling grain nuts/ roast nuts and sweet
items from the suit shop in the name and style of “Krishna Chana
Bhandar” and the plaintiff has continued the said business under the
license issued MMC Act, u/s.394 of the Act. The plaintiff has relied
upon license of Shop and Establishment Act, electricity bill, Pitchholders
Card and other relevant documents etc., where name of the plaintiff
and his father is reflected. It is the case of the plaintiff that, he had been
physically conducting the business from the suit premises till the death
of his father Jayjayram Gupta till May 2019, when the adoptive father
of the plaintiff had died and thereafter, the defendants started making
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their claims in respect of the suit shop/ premises, regarding adoption of
the plaintiff by late Jayjayram Gupta. The plaintiff has relied upon
declaration executed by him in the year’1990 and on that basis, has
claimed his rights as legal heir and successor of late Jayjayram Gupta.
Brother of Jayjayram Gupta namely Sriram Gupta was having three sons
and two daughters. The defendant is causing nuisance to the plaintiff
and disturbing his possession causing him annoyance in respect of the
suit premises. Therefore, the plaintiff is compelled to approach this
court for seeking relief of declaration and perpetual injunction against
the defendants.
7. For proving his possession over the suit premises, the
plaintiff is relying upon the Pitchholder card, copy of which is filed
with the plaint vide Exh.B and license under Shop and Establishment
Act as per Sec.394 of MMC Act vide Exh.‘C’ and ‘D’. License of the
plaintiff has been renewed from time to time as per renewal receipt,
copy of which is filed with the plaint vide Exh.E. The plaintiff is also
relying upon survey slip bearing no. 0657642 which is issued under
Maharashtra Slum Improvement Act, 1976 and is protected occupier as
per policy of the Government and all the occupants since prior to
1.1.2000 are entitled for protection under the said Act. The plaintiff
has also produced and placed reliance on the energy bill issued by BEST
Ltd., subsequently taken over by Reliance Energy and thereafter by M/s.
Adani Group vide Exhs.‘G’ and ‘H’ filed with the plaint. The plaintiff is
also relying upon tax invoice dated 18.3.2000 vide Exh.I, copy of which
is filed on record regarding transfer of electricity connection of the
plaintiff. The plaintiff has produced death certificate of his adoptive
father who expired in May, 2019, copy which is annexed with the plaint
vide Exh.J. The plaintiff is also running the business of Bhel Puri stall/
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Pani Puri from the suit premises and therefore, has obtained necessary
license under Shop & Establishment Act, copy of which is annexed with
the plaint vide Exh.K. The plaintiff is also relying upon declaration of
his adoptive father which is executed in the year 1990, copy of which is
filed with the plaint at Exh.L; NC Complaint filed by the plaintiff on
3.6.2020 against the defendants regarding obstruction and threats given
by them to the Nehru Nagar police station, Kurla, Mumbai 400 024,
copy of which is annexed vide Exh.M; Adhar Card Exhs.‘N’ and ‘O’; copy
of bank passbook showing joint account of the plaintiff with his
adoptive father Jayjayram Gupta in Abhyudaya Bank Coop. Bank in the
year 1999 vide Exh.P.
8. On the above factual background, Ld. Counsel for the
plaintiff submitted that, inspite of filing of NC Complaint, as mentioned
above, against the defendants, they continued to create nuisance and
obstructions to the plaintiff and tried to take forcible possession of the
suit premises. Therefore, again the plaintiff has filed complaint in Nehru
Nagar police station on 9.6.2020. The plaintiff has produced on record
photographs of the factual aspect which can be seen from the suit
premises vide Exh.Q (colly.) to show his exclusive use, occupation and
possession of the suit premises. The plaintiff has taken these
photographs on 3.6.2020, 8.6.2020 and 9.6.2020, which clearly
demonstrate that the plaintiff was and is in use and occupation of the
suit premises on the date of filing of the suit, even today and the
defendants are trying to dispossess him from the same by creating the
act of nuisance. These letters/ photographs are annexed with the plaint
vide Exh.R(colly.)
Under the above circumstances, Ld Counsel for the plaintiff
submitted that, the plaintiff has no other alternative but to approach
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this court by filing present suit seeking temporary injunction against the
defendants for protecting his possession in respect of the suit premises.
9. Per contra, Ld. Counsel Mr. Thorat for the defendants
referred to and relied upon WS filed in the suit on 29.6.2020 and taken
on record on oral submissions of Ld. Counsel for the defendant and
treated as reply to the notice of motion. He strongly opposed the
contentions of Ld. Counsel for the plaintiff regarding grant of temporary
injunction during pendency of the suit. He submitted that, the plaintiff
and defendants no.1 and 3 are joint owners of the shop premises which
are situated at MG1, 1/17 Opp. Sane Ahmadi Hotel, CST Road/ S.G.
Barge Marg, Tansa Pipeline, Thakkar Bappa Colony, Chembur, Mumbai
400 071. He further argued that, originally, the suit premises were
belonging to Jayjayram Hazari Gupta, uncle of the plaintiff and
defendants no.1 and 3. The defendants no.1 and 3 were joint
purchasers of the said suit premises along with Jayjayram Hazari Gupta,
who was carrying the business in the suit premises in the name and
style as “Krishna Chana Bhandar” and therefore, all the licenses and
electricity bills and Pitchholders Card etc. were standing in the name of
Jayjayram Gupta.
10. It is the case of the defendants that, in the year 2003, said
Jayjayram Gupta had made a Will and got it registered with the Sub
Registrar of Assurance at Kurla vide document no. BDR 3–24/2003 and
by the said Will, he had given the suit premises to all his nephews i.e.
the plaintiff, defendant no.1 and defendant no.3 in equal parts.
Therefore, the plaintiff and the defendants no.1 and 3 all became joint
owners of the suit premises on the demise of said Jayjayram Gupta in
the month of May 2019. Ld Counsel for the defendants argued that, the
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said execution of the Will has been confirmed by Jayjayram Gupta in
the month of June 2017 by executing an affidavit to that effect. Original
Will executed by late Jayjayram Gupta is in possession of the plaintiff
and xerox copy is with defendants.
11. It is further case of the defendants that, as agreed between
the plaintiff and the defendants no.1 and 3, they were running business
known as Krishna Chana Bhandar in the suit premises along with late
Jayjayram Gupta and subsequently the suit premises have been
partitioned in three different parts by the plaintiff and the defendants
i.e. one bigger part and two small parts and there is wooden partition
having three shutters making them independent. Two parts are on the
main road and one part is in the inner street. Three small businesses are
being run. In the bigger part of the shop business of Parching and
selling of grains, nuts and bhelpuri is carried out and in second part,
Pani Puri shop is run.
12. It is submitted by Ld. Counsel for the defendants that,
during the lifetime of late Jayjayram Gupta in the year 2012, it was
decided to let out the suit premises on leave and license basis for the
period of 33 months to the plaintiff and defendants no.1 and 3 on the
condition that, each of the plaintiff and defendants no.1 and 3 will run
the said business for the period of 11 months turn by turn on the agreed
terms and conditions, which are specifically stated in para 2 of the WS.
In this way, the business in the suit premises was carried out by the
plaintiff and the defendants no.1 and 3 from the year 2015 to 2018.
When the leave and license expired again fresh leave and license was
executed by late Jayjayram Gupta on the first June of 2018 and again
for the period of 5.6.2018 to 4.6.21019 on the same terms and
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conditions on the basis of understanding and rotation policy.
13. It is submitted that, from 5.6.2019 till 4.6.2020, plaintiff
Krishnamani Gupta was supposed to run the business on the first part
i.e. business of parching and selling of grains, nuts and defendant no.1
Parmeshwar Gupta was supposed to run business in the front small part
i.e. pani puri and defendant no.3 Somnath Gupta was supposed to run
business of mobile shop in the third part of the stall. Accordingly, the
business conducted till 4.6.2020. Thereafter, the plaintiff was supposed
to hand over the larger part of the suit premises to the defendant no.1
and shift himself to the small premises of the mobile shop but the
plaintiff had become dishonest and refused to hand over the larger part
of the suit premises to the defendant no.1 and had lodged a false
complaint with police with malafide intention to grab and withheld the
possession over the larger part of the suit premises illegally after expiry
of his term of leave and license.
14. Ld Counsel for the defendants submitted that, this is the
crux of the matter when the plaintiff had turned dishonest and had
failed to discharge his legal obligation to abide by the understanding
and terms of the settlement in respect of the partition of the suit
premises between the plaintiff and defendants no.1 and 3 and even the
plaintiff has tried to dispossess the defendants no.1 and 3 from their
respective part of the suit premises by putting his lock by breaking open
the lock of the defendants. Therefore, Ld Counsel for the defendants
submitted that, the plaintiff has not approached this court with clean
hands and he has suppressed material facts regarding execution of the
Will by late Jayjayram Gupta and therefore, the plaintiff is not entitled
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for equitable relief of grant of temporary injunction as prayed in the
suit. Regarding all the averments and allegations made in the plaint by
the plaintiff, the defendants have denied the same in paras 4 to 24 of
their WS, which has been treated as reply to the notice of motion taken
out by the plaintiff.
15. In support of his above submissions, Ld. Counsel for the
defendants has relied upon lease agreement dated 1.6.2018(Exh.A);
sketch map of location of each parts of the suit premises(Exh.B); death
certificate of Jayjayram Gupta (Exh.C), affidavit executed by late
Jayjayram Gupta in the month of June, 2017 (Exh.D), Aadhar Card of
the defendant no.4 (Exh.E), photographs of small part of the suit
premises where pani puri shop is being run (Ex.F colly) and some more
photographs vide Exh.G colly., showing factual position as on 4.6.2020
and 25.6.2020 in respect of the suit premises.
16. In response to the WS filed by the defendants, the plaintiff
has filed additional affidavit of the plaintiff in support of his notice of
motion dated 19.10.2020 along with documents and in reply to the
same, the defendants have filed additional affidavit of defendant no.3
Somnath Gupta dated 19.10.2020 and another reply of the defendants
to the additional affidavit filed by the plaintiff in October 2020 as a
rejoinder to the WS dated 8.7.2020. Further the defendant no.3 has
filed surrejoinder on 14.9.2020 and additional affidavit as surrejoinder
dated 6.10.2020 along with documents. I have gone through the above
mentioned pleadings of the plaintiff and the defendants respectively
and carefully. I have also taken into consideration oral submissions
made by Ld. Counsels for both sides supported by their written notes of
arguments submitted for the sake of convenience after oral arguments
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were over.
17. On the basis of the pleadings of the parties in the plaint as
well as notice of motion and written statement and affidavits as well as
in view of oral submissions made by Ld. Counsels for both sides,
following points arise while deciding the present Motion before me and
I have recorded my findings against them with reasons as under :
POINTS :
1. Whether the plaintiff has made out prima facie case
and balance of convenience in his favour ?
2. Whether the plaintiff has proved that he is in exclusive
possession of the entire suit premises in his own
rights?
3. Who will suffer irreparable loss if the temporary
injunction is granted ?
4. What order ?
FINDINGS :
1. Not proved.
2. Not proved
3. Defendant will suffer irreparable loss.
4. As per final order.
REASONS
AS TO POINTS NO.1 TO 3 :
18. While considering the prima facie case and balance of
convenience in this case it can be seen that, the dispute between the
plaintiff and the defendants is nothing but a family dispute regarding
family business and the property rights in relation to the said business.
Certain facts are admitted between the parties. The relations between
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the plaintiff and the defendants is not disputed. Similarly, the
description and location of the suit shop property is not disputed. It also
not disputed that, the plaintiff is in possession of the suit premises. But,
the dispute starts from here regarding nature and extent of possession
and right of the plaintiff to continue/ and retain his possession. The
defendants have disputed the plaintiff’s claim to run the family business
in the suit premises. The defendants are also claiming their rights and
share in the family business and they have opposed the plaintiff's claim
mainly on the ground that the plaintiff has not approached this court
with clean hands and with dishonest intention, he has deprived the
defendants from their rights to continue the business along with the
plaintiff in the suit premises.
19. Ld. Counsel for the plaintiff has heavily relied upon written
notes of arguments and has contended that, the plaintiff is in possession
of the suit premises and he has produced on record ample documentary
proof to substantiate his claim. Therefore, he cannot be dispossessed by
the defendants without following due process of law and to that extent,
the plaintiff has made out a prima facie case and balance of
convenience in his favour. Therefore, he is entitled for temporary
injunction during pendency of the suit.
20. In this regard, Ld Counsel for plaintiff has relied upon
sketch map of the suit shop, Pitchholder card, Shop and Establishment
license, electricity bill, Aadhar Card, death certificate of the deceased
Jayjayram Gupta, Survey slip of 2000, declaration cum affidavit of
Jayjayram Gupta, bank passbook, complaint lodged with Nehru Nagar
police station and photographs of the suit shop. The plaintiff has relied
on the adoption of the plaintiff by Jayjay Ram Gupta and pointed out
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that, in view of Pitchholder card, this fact of adoption is reflected and
the plaintiff is recognized as adopted son of the late Jayjay Ram Gupta.
Therefore, the business run in the name and style “M/s. Krishan Chana
Bhandar” in the suit premises is inherited by the plaintiff from his
adoptive father after demise of late Jayjay Ram Gupta. The plaintiff
being successor and owner of the suit premises, is in possession of the
same and the defendants have no right to interfere with the possession
of the plaintiff during pendency of the suit.
21. Regarding reasonable apprehension of the plaintiff in
respect of interference by the defendants to his possession, reference is
made to the police complaint submitted by the plaintiff to Nehru Nagar
police station on 3.6.2020 wherein it is alleged that, the defendant
no.1, his wife and defendant no.2 had created unlawful atmosphere and
threatened the plaintiff regarding his dispossession. Regarding the
statement of the plaintiff recorded by duty officer Mrs. Nutan Patil, who
was present at the Nehru Nagar police station, it is submitted that, she
had recorded statement made by the plaintiff but due to
misunderstanding the contents of his statement were not properly
incorporated in the statement. In fact, the plaintiff has stated before the
police that, Krishna Chana Bhandar was belonging to his father and the
defendants were claiming right in respect of the suit premises. But, the
officer had misconstrued his statement and therefore, same cannot be
relied upon by the defendants in support of their contentions. Ld.
Counsel for the plaintiff specifically pointed out from WS filed by the
defendants that, the defendants have made false claim by preparing
false documents and submitted that, Jayjay Ram Gupta is neither father
of the defendant no.1 nor that of defendant no.3, because in the WS,
they have specifically stated name of father Sriram Gupta and not
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Jayjay Ram Gupta. Ld Counsel for the plaintiff pointed out that,
Parmeshwar Gupta has specifically stated in the WS and at pg.5 of the
affidavit that in October 2020 Annexure “C” and at pg.9 and the
photographs he has mentioned his name as Parmeshwar Gupta which
shows that, the defendants have created forged document to enter into
the suit premises after 2018 by showing name of Jayjay Ram Hazari
Gupta as their father instead of name of their father as “Parmeshwar
Jayram Gupta”. Ld Counsel for the plaintiff specifically pointed out from
the passbook that account of the defendant no.3 in the Abhudaya Co
op. Bank showing name of the defendants and that they are sons of late
Jayjay Ram Hazari Gupta as to how they have created false evidence. It
is further corroborated by additional affidavit dated 19.10.2020
exposing defendants that the defendant no.1 also used name of Jayjay
Ram Gupta while opening the bank account with ulterior motive only to
falsely create their alleged rights in respect of the suit premises.
22. In support of his statement, Ld. Counsel for the plaintiff has
placed reliance upon the decision of the Hon’ble Apex Court in the case
of Krishna Ram Mahale (Dead) by his LRs V/s. Shobha Venkat Rao
(MHLJ 1989 0 1130= SSC 1989 (4) SCC 131), wherein it is held that,
even if license of licensee comes to an end and he remained in unlawful
possession, the remedy for the aggrieved party is to ask for damages in
respect of unlawful possession but such licensee cannot be dispossessed,
without following due process of law. The person who is in settled
possession of the property even if it is assumed that he has no right to
remain in possession of the property, he cannot be dispossessed by the
owner of the property except by taking recourse to the law.
23. Per contra, Ld Counsel for the defendants has strongly
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opposed the above contentions of the plaintiff and heavily relied upon
the written notes of arguments in support of his contention. He
submitted that, the defendants are opposing the Motion taken out by
the plaintiff mainly on the ground that, as per provisions of Civil
Procedure Code, Specific Relief Act and Evidence Act, the plaintiff's
claim in the suit itself is not maintainable in law. He submitted that, the
plaintiff in the present suit is claiming discretionary relief from the court
under Specific Relief Act and therefore, he cannot claim negative
declaration that the defendants have no right, title and interest in
respect of the suit premises. In this regard, reliance is placed on the
decision of Shipping Corporation of India V/s. Machhado Brothers
and ors. ((2004) AIR(SC) 2093 = (2004)11 SCC 168, wherein
Hon’ble Apex Court has held that, while considering the said question
one basic principle should be born in mind that interlocutory orders are
made in aid of final orders and not vice versa.
24. Ld Counsel for the defendants referred to the provisions of
Sec.34 of the Specific Relief Act and argued that, no negative
declaration can be sought and furthermore, as per provisions of Sec.41
of Specific Relief Act, there is bar of granting certain reliefs, where
equally efficacious remedy is available to plaintiff or where conduct of
the plaintiff disentitles him from seeking assistance from the court.
From the written statement of the defendants, it is clear that, the
defendants have disputed the plaintiff's right in relation to the
ownership and rights over the suit shop, being brothers and coowners
of the plaintiff. Ld Counsel for the defendants relied upon the statement
of the plaintiff recorded by the police authority in the course of
investigation and reliance is placed on the decision of the Hon’ble Apex
Court in the case of P.C Purushothama Reddiar V/s. S. Perumal (AIR
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1972 SC 608), wherein it is held that, as per Sec.35 of the Evidence
Act, statement made to the police or public servant in discharge of his
official duty cannot be brushed aside as not relevant and it is presumed
to be true unless otherwise is proved.
25. Therefore, it was contended that in view of admission of
the plaintiff in the NC complaint dated 3.6.2020 and that his statement
was voluntarily made and recorded by the police and that, it has to be
accepted by this court and the defendants are not required to prove the
same. In this regard, reliance is also placed on the decision of the
Hon’ble Apex Court in the case of Narayan Swamy V/s. State of
Maharashtra (AIR 1972 SC 1789 = 1971(2) SCC 182) Similarly,
reliance is placed on another decision of the Supreme Court in the case
of Vathsala Manickavasagam & Ors V/s. N. Ganesan and Anr.
(2013(9) SCC 152), wherein Hon’ble Apex Court has explained the
principles laid down in Sec.17 of the Evidence Act and effect of
admission during the trial of the case. In this regard, Ld.Counsel for the
defendants argued that as per provisions of Sec.114 of Evidence Act
adverse inference is to be drawn against the plaintiff regarding his
admission. It is the case of the plaintiff that he was adopted by late
Jayjay Ram Hazari Gupta and by virtue of execution of adoption deed,
he has become owner of the suit premises. When the onus to prove the
fact of adoption is on the plaintiff, he has to prima facie prove the same
by producing adoption deed before the court. But, the plaintiff with
ulterior motive and malafide intention, has not produced the alleged
adoption deed before the court and failed to discharge the onus of proof
in this regard.
26. In the NC complaint dated 3.6.2020, the plaintiff has
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admitted the fact that the suit shop was run by the father of the plaintiff
and the defendants no.1 to 3 and after demise of the father there is
dispute between 23 brothers in relation to the ownership rights of the
suit shop. It is the case of the plaintiff that, by virtue of declaration
dated 3.9.1990, late Jayjayram Hazari Gupta has created right in favour
of the plaintiff in respect of the suit premises, it is not a registered
documents required u/s.17 of Registration Act. Because, late Jayjayram
Gupta had allegedly created right, title and interest in favour of the
plaintiff in relation to the suit shop by execuing a declaration, it prima
facie shows that unless it is registered document, it cannot have any
evidential value while deciding the present Motion.
27. Regarding conduct of the plaintiff, Ld Counsel for the
defendants has argued that, the person who plays fraud on the court or
on the opposite party, is not entitled for any discretionary relief and
Hon’ble Apex Court in the case of S.P. Chengalvaraya Naidu V/s.
Jagannath (AIR 1994 SC 853 = 1994(1) SCC 1) has held that the
litigant who approaches the court, is bound to produce all documents
which he wants to rely and if he suppresses material document from the
court he is not entitled to any discretionary relief. Further reliance is
placed on the decision of the Hon’ble Allahabad High Court in the case
of Sri Dasnam Naga Sanyasi and Anr V/s. Allahabad Development
Authority Allahabad and Anr. (AIR 1995 ALL 418) wherein it is held
that in a suit for perpetual injunction, disclosure of facts to satisfy the
requirements of Sec.38 of Specific Relief Act and absence of prohibition
u/s.41 of the said Act is essential. In the present case, the plaintiff has
failed to prove his exclusive right in respect of the suit premises and
there is also bar u/s. 41 of the Specific Relief Act regarding the conduct
of the plaintiff.
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28. Therefore, relying on the ratio of the above authorities and
pleadings of the defendants in the written submission, it was argued by
Ld Counsel for the defendants that as per factual matrix of the case, the
defendants have equal rights as to the possession and to run part of the
family business in the suit shop after demise of late Jayjayram Gupta,
who was owner of the suit premises. Therefore, the plaintiff and the
defendants are having joint rights, title and possession over the suit
premises and therefore, no temporary injunction can be granted against
defendants who are coowners. According to the defendants, late
Jayjayram Hazari Gupta has made a Will in the year 2003 and it was
also registered with the SubRegistrar, Assurance at Kurla vide
document no. BDR 3–24/2003 and had given the suit premises to all
the three nephews i.e. the plaintiff, the defendant no.1 and defendant
no.3 in equal parts and therefore, by virtue of said Will, the defendants
have become joint owners of the suit premises along with the plaintiff
after death of late Jayjayram Gupta in the month of May 20190.
Accordingly, the said arrangement has been acted upon by the parties
and suit shop was being run by the plaintiff and the defendants in
rotation. In this background, even though the suit shop stands in the
name of Jayjayram Gupta in record that does not prove exclusive
ownership right and possession of the plaintiff over the suit premises.
29. Regarding electricity connection supplied by M/s. Adani
Group to the suit shop, the defendants had taken objection and
therefore the decision in respect of the electricity connection is kept in
abeyance by M/s. Adani Group. As per leave and license agreement
dated 1.6.2018 filed with the WS by the defendants vide Exh.A, the
court has already found that the defendants are occupying portion of
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the suit premises and running their business as per stipulation of
rotating business as per understanding and the arrangement between
the plaintiff and the defendants prior to filing of the suit and therefore,
prima facie, this court has held that the plaintiff is not in exclusive
possession of the suit premises. Therefore, adinterim relief was refused
by this court on that ground alone on 29.6.2020.
30. Considering the legal position in the matter as well as
factual aspect Ld Counsel for the defendants urged that, this is not fit
case for grant of temporary injunction in favour of the plaintiff as
prayed and therefore, the Motion is liable to be dismissed with
exemplary costs.
31. I have carefully gone through the pleadings of the plaintiff
in the plaint and his affidavit filed in support of the notice of motion as
well as pleadings in the WS submitted by the defendants and taken in to
consideration documentary evidence produced before the court for
proving their respective contentions. After considering the detailed and
indepth submissions made on behalf of both parties and by their
respective Counsels, I have come to the conclusion that, though prima
facie the plaintiff is in possession of the suit premises, it cannot be said
that, the plaintiff is in exclusive possession of the suit premise as held by
this court while refusing to grant adinterim relief on 29.9.2020.
32. It is true that, the plaintiff is not to be dispossessed by the
defendants without following due process of law but at the same time,
the plaintiff's possession cannot be said to be his exclusive possession as
of right, to run the suit shop excluding the defendants. The plaintiff's
conduct before the court do not inspire confidence for grant of
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discretionary relief of temporary injunction because for proving his
prima facie case and balance of convenience the plaintiff was required
to produce before the court adoption deed on which he wants to rely
and to base his claim that late Jayjayram Gupta was his adoptive father
and as per declaration cum affidavit dated 3.9.1990. If the plaintiff is
claiming any right in respect of the suit premises exclusively as against
the defendants on the basis of such declaration and adoption deed then
the same ought to to have been registered as per provisions of Sec.17 of
the Registration Act.
33. The plaintiff has also suppressed from the court material
facts regarding alleged Will of late Jayjayram Gupta and leave and
license agreement between the parties and also regarding subsequent
developments after death of late Jayjayram Hazari Gupta in the year
2019 when the suit shop was being run by the plaintiff and the
defendant no.1 and 3 on rotation basis for a period of 11 months till
4.6.2019 when the plaintiff had failed to abide by the terms and
conditions of mutual understanding between the parties and therefore,
the plaintiff is not entitled for discretionary relief of temporary
injunction in the present Motion.
34. So far as defendants’ claim is concerned, it is based on the
Will of late Jayjayram Hazasri Gupta dated 2003. It is also registered
with the office of SubRegistrar. As per said Will , some arrangement
was made in respect of running of suit premises by the plaintiff and the
defendants, however same cannot be considered by this court at this
stage as the probate is not obtained and it will be a subject matter of
trial before the court.
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21 N/M 1349/20(Suit(St.) 3826/20)
35. In view of above discussion, as to points no.1 and 2, I
record my findings that the plaintiff has not proved prima facie case and
balance of convenience in his favour. Regarding point no.3 that, I have
come to the conclusion that no irreparable loss will be caused to the
plaintiff if temporary injunction is denied because prima facie he has
failed to prove his exclusive right to run the suit shop.
36. On the other hand, if the temporary injunction is granted,
the defendants will be deprived of their rights to jointly run the suit
shop with the plaintiff. Moreover, trial of the suit is likely to take couple
of years before any final adjudication of the rights of the parties can be
made. It is also a matter of record that, running of Chana Bhandar
business is the source of livelihood for both the plaintiff and the
defendants being their family business. Therefore, I am of the
considered opinion that, this is fit case for taking recourse by the parties
to ADR mechanism i.e. try to resolve their disputes either by way of
mediation, conciliation or keeping the matter before LokAdalat with
the able assistance and guidance of the Ld Counsels for both the sides.
Therefore, the parties are advised to consider this suggestion seriously
before case goes for trial and decision on merits.
With these observations, I proceed to pass following
order :
ORDER
1. Notice of Motion No. 1349/2020 is hereby dismissed
with costs.
2. In the circumstances of the case, both the parties are
advised to take recourse to ADR mechanism i.e. going
for mediation etc. during the pendency of the suit.
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3. Notice of Motion is disposed of accordingly.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 22.12.2020 Gr. Bombay (C.R.03)
Dictated on : 14.12.2020(part), 24.12.2020(part) and 28.12.2020
Transcribed on : 14.12.2020, 24.12.2020 and 28.12.2020
Draft given to HHJ on : 28.12.2020
Signed by HHJ on : 28.12.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :28.12.2020
TIME:4.42 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER
Name of the judge (with Court Room No.) Shri V. V. Vidwans, Judge(C.R. 03)
Date of pronouncement of Judgment/ Order 22.12.2020
Judgment/ order signed by P.O on 28.12.2020
Judgment/ order uploaded on 28.12.2020
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