Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 1759 of 2019, in Suit no.1101 of 2019
MHCC010048172019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO.1759 OF 2019
IN
S.C. SUIT NO.1101 OF 2019
Balajirao Narayan Swamy Adepu. Plaintiff.
V/s
Alfa Jeans Tailors & Anr. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 17th DAY OF DECEMBER, 2022
: Appearances:
The learned Adv. Mr. Nagvadaria for plaintiffs.
The learned Adv. Mr. Manoj Kondekar for defendants.
ORAL ORDER
This Notice of Motion is taken out by the plaintiff for
claiming reliefs inter alia;
(a) To appoint Court Receiver, High Court, Bombay as Receiver
of the suit premises;
(b) To pass an order of temporary injunction thereby
restraining defendants from obstructing ingress and egress of the
plaintiff to the suit premises and further restrain defendants from
creating any hurdle in the way of the plaintiff from doing his business
from the suit premises;
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(c) Defendants be directed to refix the suit premises as it were
before and to turn the same by 180 degree so as to face the main road
and for other reliefs.
2. The plaintiff has filed suit against defendants for
claiming reliefs of declaration, permanent injunction and for other
reliefs. It is contention of the plaintiff that, his deceased father A.V.
Narayan Swami was carrying business of Watch Repairs since more
than 57 years in the name and style of M/s. Precision Watch Makers,
in a wooden stall on the ground floor, compulsory open space outside
shop No.3, situated in “Srirang Building”, 351, Chandavarkar Marg,
Matunga, Mumbai 400 019 as the sole proprietor thereof and as a
licensee of the New Mysore Mess, who was the tenant of Shop No.3
of the landlords of the said building.
3. It is further contention of the plaintiff that, his deceased
father started said business of Watch Repairs since prior to 1961 in
the wooden cupboard which admeasures about 4'x 2.5' x 8'
(Hereinafter said wooden cupboard referred to as “suit premises”).
The deceased father was having Shop and Establishment Licence
bearing No. F.I.7504. It came to be renewed from time to time. It is
further contended that his deceased father repaired some of
prestigious clock and watches like clocks of Nizamiah Observatory at
Hyderabad. It is further contended that, in the year 1972 the then
owners/landlords of the suit building Mr. Pravin Keshvlal Parikh had
filed suit bearing No.3383 of 1972 against deceased father of the
plaintiff for possession of the suit premises and mesne profits. The
said suit came to be abated. After abatement of the Suit
No.3383/1972 the landlords started accepting rent from the plaintiff.
In the year 1988 one Mr. C.B. Modi became the tenant of said shop
No.3 and he started threatening brother of the plaintiff and wanted to
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remove him from the suit premises. Therefore brother of the plaintiff
had lodged a complaint with the police station, Matunga.
4. It is further contended that, at the instance of the owner,
BMC issued a notice u/s. 381 of BMC Act on 01.10.1987. Suddenly
on 02.06.2001 a notice was pasted on the suit premises falsely
alleging that deceased father of the plaintiff had installed a wooden
cupboard on the compulsory open space of the building. The
deceased father of the plaintiff replied said notice through his
advocate. The Assistant Municipal Commissioner vide a letter dated
21.09.2001 informed to deceased father of the plaintiff that reply to
notice u/s. 351 of BMC Act is not satisfactory for the reason that
documents produced by deceased father of the plaintiff do not prove
authorization or existence of structure prior to 01.04.1962 and called
upon him to remove the same. Therefore plaintiff's father has filed a
suit bearing No.5073 of 2001 against Municipal Corporation of
Greater Mumbai. In the said suit the deceased father of the plaintiff
was successful in getting interim orders against Municipal
Corporation of Greater Mumbai. Thereafter suit came to be decreed
in favour of plaintiff's deceased father. Thereafter the deceased father
of the plaintiff continued business without any hindrance. The
deceased father of the plaintiff had gifted the suit premises along
with business to the plaintiff vide Gift Deed dated 31.08.2010.
5. It is further contended that, C.B. Modi left the shop
premises in the year 1990 and on his place T.C. Mathew came in shop
premises and started business of Sound and Vision. The said Mr. T.C.
Mathew in the year 2003 put up a collapsible grill in front of his shop
which also covered the suit premises. This collapsible gate acted as a
security to the said shop No.3 and suit premises. The said Mr. T.C.
Mathew also gave an extra key of the lock to plaintiff so that the
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plaintiff is not prevented from doing his business. The said Mr. T.C.
Mathew passed away in the year 2007 and after his death his son
Sajiv Mathew i.e., defendant no.2 started doing business from shop
No.3.
6. It is further contention of the plaintiff that said Sajiv
Mathew on 26.12.2018 put a subtenant in shop No.3 by name Alfa
i.e. defendant No.1. After taking the possession of shop No.3
defendant No.1 started misbehaving with the plaintiff and he
changed the lock of the collapsible grill. Now defendant No.1 creating
hindrance in the ingress and egress of the plaintiff so as to approach
the suit premises. He also changed the position of the suit premises.
Therefore the plaintiff lodged a report with Matunga police station,
however of no use. Defendant No.1 again changed the position of the
suit premises by 90 degree. Due to adamant behavior of defendant
No.1 plaintiff is unable to make ingress and egress to the suit
premises. Thus business of the plaintiff has come to a standstill.
Hence the present Notice of Motion.
7. Defendants strongly opposed Notice of Motion by filing
reply on affidavit. It is contended that Notice of Motion taken out by
the plaintiff is false, vexatious and malafide and thus liable to be
rejected. It is contended that, the plaintiff has approached to the
court by suppressing material facts and hence not entitled for
discretionary relief as claimed. It is contended that, the plaintiff is a
trespasser who is obstructing defendants illegally from carrying on
their lawful business in the shop behind the suit premises. Defendants
being lawful tenant have every right to defend themselves. It is
contended that, the plaintiff never carrying on his alleged business
from the suit premises. Therefore Notice of Motion is liable to be
rejected with cost.
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8. The plaintiff has filed rejoinder to Notice of Motion and
denied all the adverse contents.
9. Heard both learned advocates for the plaintiff and
defendants at length. Perused the record.
10. Following points arises for my determination to which, I
record my finding with reasons as follows:
Sr.No Points Findings
1. Whether the plaintiff is entitled for the
reliefs claimed in Notice of Motion? Yes
2 What order? As per final order.
REASONS
AS TO POINT No.1:
11. It is well settled principle of law that to claim relief of
temporary injunction the plaintiff has to prove three basic ingredients
i.e. (i) the plaintiff has prima facie case in his favour, (ii) balance of
convenience lies in favour of the plaintiff and (iii) if temporary
injunction is refused then the plaintiff would suffer irreparable loss.
12. It is contention of the plaintiff that his deceased father
was carrying on business of Watch repairs in the suit building from
suit premises since more than 57 years. To substantiate his
contentions the plaintiff has filed license under Bombay Shops and
Establishment Act wherein it reveals that license was issued on
31.12.1965 in the name of deceased father of the plaintiff. It further
reveals that said license came to be renewed from time to time. The
plaintiff has also filed a letter issued by Nizamiah Observatory
wherein certified that deceased father of the plaintiff has repaired
synchronome clocks and other allied instruments on 29th August
1957.
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13. It is further contention of the plaintiff that he used to
maintain a book wherein he kept the account regarding payment of
rent made to the landlord. The plaintiff has filed account of extract at
Exh.C. It is further contention of the plaintiff that, Mr. C.B. Modi
asked him to move his shop and also threatened him. Therefore he
lodged the report which is filed at Exh.D. The plaintiff has also filed
notices issued by the Municipal Corporation of Greater Bombay to
deceased father of the plaintiff so as to remove the suit premises from
the suit shop. The plaintiff has filed a copy of decree passed in L.C.
Suit No.5073/2001 wherein suit filed by his father came to be
decreed thereby notice issued by the Municipal Corporation of
Greater Bombay declared as bad in law, illegal and cannot be
enforced against the plaintiff. The plaintiff has also filed a copy of
Gift Deed whereby his deceased father gifted suit premises to him.
The plaintiff has also filed on record photographs wherein it clearly
reveals that wooden cupboard i.e. suit premises position is changed
by defendants. It further reveals that face of suit premises is shown
towards inside of shop instead of shown facing towards road. Due to
act of defendants the plaintiff is unable to run his business from the
suit premises. All these documents prima facie made out a case in
favour of the plaintiff. Upon perusal of said documents it reveals that
deceased father of the plaintiff was running the business from the suit
premises prior to 1965. It further reveals that the Municipal
Corporation of Greater Bombay issued notices to father of the
plaintiff to remove the suit premises. However said notice came to be
declared as bad in law in Suit No.5073/2001. It tilts needle of
balance of convenience in favour of the plaintiff. Naturally if
injunction is refused then it is the plaintiff who will suffer irreparable
loss as he could not run his business from the suit premises from suit
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shop. Therefore the plaintiff has made out a prima facie case, balance
of convenience and irreparable loss in his favour. Hence my answer
to Point No.1 is in affirmative.
AS TO POINT NO.2:
14. In view of my above discussion, I pass following order.
ORDER
1. Notice of Motion no.1759/2019 stands allowed and
made absolute in terms of prayer clause (a),(b) and (c).
2. Notice of Motion stands disposed off.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 17.12.2022 (C.R. No.1)
Dictated on : 17.12.2022
Transcribed on : 19.12.2022
checked and Signed on : 22.12.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 22.12.2022 NAME OF STENOGRAPHER(GI)
Mr. V.S. Shinde
TIME: 3.30 p.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 17.12.2022
JUDGMENT/ORDER signed by P.O. on 22.12.2022
JUDGEMENT/ORDER uploaded on 22.12.2022
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