Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on N/M No.1595/2020 1
IN THE CITY CIVIL COURT FOR GREATER, BOMBAY
AT MUMBAI
ORDER ON NOTICE OF MOTON NO. 1595 OF 2020
(CNR NO. MHCC01-004906-2020)
IN
ST. NO. 5285 OF 2020.
Pravin Yashwant Jadhav. ]
Alias Pravin Yashwant Jadhav ]
Age: 59 years, Occ: Retired. ]
Residing at Room No.4,44/C, 1st Floor, ]
Dhanji Building, Kapad Bazar, ]
Mahim, Mumbai – 400 016. ] ....Plaintiff.
Versus
1. Sham Madhukar Jadhav. ]
Aleas Shawm Madhukar Jadhav. ]
Age :: 66 years, ]
R/at.: Room No 4,44/C, 1st Floor, ]
Dhanji Building, Kapad Bazar Road, ]
Mahim, Mumbai – 400 019. ]
2. Kalpana Sham Jadhav. ]
Age: 51 years, Occ: Housewife, ]
R/at.: Room No. 4,44/C, 1st Floor, ]
Dhanji Building, Kapad Bazar Road, ]
Mahim, Mumbai – 400 016. ]
3.Akshay Sham Jadhav. ]
Age: 30 years, Occ: Not Known, ]
R/at.: Room No. 4,44/C, 1st Floor, ]
Dhanji Building, Kapad Bazar Road, ]
Mahim, Mumbai – 400 016. ]
4. Neelam Santosh Pawar nee ]
Neelam Sham Jadhav. ]
Age: 32 years, Occ: Housewife, ]
-- 1 of 9 --
Order on N/M No.1595/2020 2
R/at.: Room No. 4,44/C, 1st Floor, ]
Dhanji Building, Kapad Bazar Road, ]
Mahim, Mumbai – 400 016. ]
5. Santosh Jadhav. ]
Age: ---- years, Occ: Not Known, ]
R/at.: Room No. 4,44/C, 1st Floor, ]
Dhanji Building, Kapad Bazar Road, ]
Mahim, Mumbai – 400 016. ] ....Defendants.
Appearance:
Ld. Advocate Giriraj for the plaintiff.
Ld. Advocate Jagdish Jayale for the Defendant.
CORAM : HIS HONOUR JUDGE,
SHRI C.V.MARATHE
(Court Room No. 4)
DATED : 11th December, 2020.
O R A L O R D E R
This is an application by notice of motion under Order 39,
Rule 1 and 2 of The Code of Civil Procedure,1908.
2. The plaintiff's case in nutshell as under:
The plaintiff's father and defendant no.1-Sham's father were real
brothers. The defendant no. 2 to 5 are family members of defendant
no.1. The plaintiff is residing at room no. 4, 44/C, 1st Floor, Dhanji
Building, Kapad Bazar Road, Mahim, Mumbai 400 016 (Herein after
referred as ''Suit premises'')
-- 2 of 9 --
Order on N/M No.1595/2020 3
The tenancy right in the suit premises continued to stand in the
name of plaintiff's father Yashwant since inception. The plaintiff's father
late Yashwant permitted defendant no. 1's father- late Madhukar to
reside in the suit premises. The plaintiff, being sole heir of late
Yashwant became the legitimate tenant of the suit premises. The
defendants have no tenancy right in the suit premises. Despite that the
defendants are thretening the plaintiff to disposses him from the suit
premises. They also assaulted the plaintiff in May 2019. During the
lockdown in COVID -19 Pendemic the defendants did not take adequate
precuation in the house and therefore, the plaintiff and his family
members were constrained to stay with plaintiff’s son-in-law or in their
other flat in Virar intermittently. After the lockdown was lifted, the
plaintiff and his family were to start the repair work the suit premises.
Due to defendant’s obstruction the plaintiff has apprehension that he
will be dispossessed from the suit premises without following due
process of law. Therefore, the plaintiff has made following prayers:
(a) '' Pending the hearing and final disposal of the suit, this
Hon'ble Court be pleased to pass an order of temporary
injunction restraining the Defendant's from dispossessing the
Plaintiff and the family members from the suit premises i.e.
Room No.4, 44/C, 1st Floor, (also known as Room No.8, in
Rent Receipt) Dhanji Building, Kapadi Bazar Road, Mahim,
Mumbai – 400 016 without following due process of law.
(b) Pending the hearing and final disposal of the suit, the
Hon'ble Court be pleased to pass an order of temporary
injunction restraining the Defendants from obstructing and
interfering with the peaceful ingress and engress of the
Plaintiff and his family members in respect of the suit
premises i.e. Room No. 4,44/C, 1st Floor, (also known as
-- 3 of 9 --
Order on N/M No.1595/2020 4
Room No. 8 in Rent Receipt) Dhanji Building, Kapad Bazar
Road, Mahim, Mumbai – 400 016.
3. The defendants have filed affidavit in reply to the notice of motion
and resisted claim of the plaintiff by making following contention.
4. The plaintiff has supressed material facts that on 03.09.2019 at 4
p.m he left the suit premises along with the family and since then he
was not in use and occupation of suit premises. The plaintiff has given
up his tenancy right in favour of defendant no. 1 and assured that he
would not return back. The defendants are in exclusive possession of
the suit premises. To ascertain the actual possession, the Court
commissioner may be appointed.
The plaitntiff and defendant no.1 have equal tenancy rights
becuase father of plaintiff and father of defendant no.1 were residing in
the suit Premises jointly without putting partition wall by way of family
arrangement.
On 05/09/2009, the plaintiff, his son and his wife assualted
the daughter of defendant no.1. Since the plaintiff is not in possesssion
of suit premises, there is no question of protecting his possessive right.
Therefore, the notice of motion be dismissed.
4. In order to grant relief of temporary injunction, the court
has to get satisfied that the three ingredients :
prima facie case, balance
of conveyance and irreperable loss are in favour of the plaintiff. To
establish these three ingredients, the plaintiff has made averments in
the plaint and tendered voluminous documents in support of the plaint.
From the reading of the plaint as a whole, it can be seen that the
-- 4 of 9 --
Order on N/M No.1595/2020 5
plaintiff is claiming exclusive tenancy right over the suit premises and
his case is that after the denial of the plaintiff the defendants have now
turned up to ne tresspassers in the suit premises in which they were
only permitted to reside earlier. In paragraph no. 5 of the plaint, it is
averred that plaintiff’s father late Yashwant acqiured the suit premises
on tenancy basis from londlord, late Yashwant permitted in the suit
premises his three brothers including late Madhukar (Father of
defendant no.1) in or around 1950. The conjoint reading of these
statements reveals that all the brothers were residing in the suit
premises since commencement of tenancy. The plaintiff’s claim of sole
tenancy appeared on the basis of the fact that rent reciept was received
in the name of late Yashwant only. The plaintiff’s claim could have
succedeed, if the plaintiff was able to tender old rent receipts issued in
the name of his fahter in 1950’s, 1960’s amd 1970’s . The plaintiff has
only tendered recent rent receipts from the year of 2008 onwards
showing the name of his father as tenant. It is interesting to note that
plaintiff's father late Yashwant died on 06.06.1986. But still the rent
receipts are drawn in his name. This aspects assumes importance
because the earlier rent receipts are not tendered by the plaintiff when
late Yashwant was alive. The plaintiff has not came with a clear case
about sole tenancy of late Yashwant. No details about death of late
Ganpat Jadhav, the father of late Yashwant are forthcoming from the
pleading of the parties. Therefore, there is no
prima facie material to
held that the plaintiff became the sole tenant of the suit premises after
the death of his father late Yashwant. The learned advocate for the
plaintiff has relied upon the judgment of Hon'ble High Court in ''
Vasant
Sadashiv Joshi and Ors v/s. Yashwant Shankar Barve and Ors. [W.P. No.
2371 of 1997, Judgment Dated 03.01.2020] wherein the Hon'ble High
Court has observed that in the context of Section 5 (11) (c) of the
-- 5 of 9 --
Order on N/M No.1595/2020 6
Bombay Rent Act that the words ‘any member of the tenant famtily
residing with a tenant, at the time of his death,’ would not enable to
each and every number of the tenant's family to claim an independant
right in the tenancy in respect of tenanted premises. In paragraph no.
14 of the said judgment, it is mentioned that it is only one member of
the family who can be recognized by the court and not all the members
residing in the premises at the time of demise of the original tenant.
The learned advocate for the plaitniff has argued on the basis of these
observations that the defendant no.1 did not get any right in the suit
premises after the death of late Yashwant and the plaintiff being the
legal heir in the Class I category was successor of late Yashwant.
However, after going throught the facts of the aforesaid case, it can be
seen that after the death of original tenant Raghunath in the year 1971,
the rent receipt came to be transferred in the name of his son Achyut,
although Raghunath's Brother and his family members also occupied
the suit premises. It was also transpired that said Achyut (Defendant
No.1 therein) left the suit premises in the year 1971 and the same
remained in the occupation of the defendant no. 2. - Vasant Sadashiv
Joshi Acbyut's Cousin brother. From this factual matrix it is apperent
that there was no dispute about the tenancy of Raghunath, his brother
never claimed joint tenants in the suit premises therein. In that factual
background Hon'ble Bombay High Court made the aforsaid
observations. In the present case the defendant have came with a case
that they are joint tenancy of the suit premises alongwith the plaintiff.
At this stage there is no clear material to held that the plaintiff's father
late Yashwant became the sole tenant of the suit premises at the
beginning and thereafter called his brother to reside with him therein.
That being the state of affairs the claim of the plaintiff that he is sole
tenant of the suit premises cannot be accepted.
-- 6 of 9 --
Order on N/M No.1595/2020 7
5. During the course of arguments, the learned advocate for
the plaintiff has argued that the plaintiff never claimed his sole
possession, but he is claiming relief of injunction because he has been
dispossessed by the defendant illegaly. In this context the plaintiff's
allegations are not consistant with his arguments. In the plaint, it is
alleged that the plaintiff is sole tenant of the suit premises, the
defendants were initially in permissive possession and later became
tresspassers. From the subsequent avernments in the plaint, it can be
seen that the plaintiff moved out of the suit premises due to disputes
and now defendants are not allowing him to enter into the suit
premises. The defendants have come with the case that the plaintiff has
given up tenancy right in favour of the defendant no.1 on 03.09.2019.
Firstly there is no document to prove this case. Secondly the
reliquishment of the tenancy right by the plaintiff in favour of defendant
no.1 is vertually impossible because plaintiff questioned right of
defendant in the suit premises in 2009 by issuing a legal notice claiming
that the defendant no.1 was the tresspassers in the suit premises.
Moreover, it is not believable that in the city like Mumbai, the person
will reliquish right in immovable property wihtout any consideration
that too in favour of a person who is fighting with him for last decade.
Threfore, there is no substance in the contention of the defendants that
the plaintiff reliquished his tenancy right over the suit premises. When
the plaintiff is not in occupation of the suit premises, though temporary,
he cannot claim temporary injunction becuase in absence of actual
possession of the plaintiff no question arises dispossessing him from the
suit premises. Therefore, prayer clause (a) of the notice of motion is
liable to be rejected. Since the plaintiff has tenancy right in the suit
premises, defendants will have to be restrained from obstructing and
-- 7 of 9 --
Order on N/M No.1595/2020 8
interfering with peaceful ingress and engress of the plaintiff and his
family members in the suit premises. Hence following order is passed.
ORDER
1. Notice of Motion No. 1595 of 2020 is partly allowed.
2. The prayer clause (a) of the Notice of Motion is rejected.
3. The defendants, their servants, agents or any person of their
behalf are temporary are restrained from obstructing and
interferring with peaceful ingress and engress of the plaintff
and his family members in respect of suit premises i.e. 4, 44/
C, 1st Floor, Dhanji Building, Kapad Bazar Road, Mahim,
Mumbai 400 016 till final disposal of the suit .
4. Costs in cause.
Date.: 11.12.2020 C.V.Marathe.
Judge
City Civil Court,
Gr. Bombay.
Dictated on : 11.12.2020
Typed on : 16.12.2020
Signed on : 17.12.2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 18.12.2020 at 11.30 a.m.
NAME OF STENOGRAPHER : Mrs. P. R. Wagh
-- 8 of 9 --
Order on N/M No.1595/2020 9
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
11/12/2020
JUDGMENT/ORDER signed by
P.O. on
17/12/2020
JUDGMENT/ORDER uploaded
on
18/12/2020
-- 9 of 9 --