Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.1587/2018 ..1.. Suit No.752/2018
CNR No.MHCC010049232018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1587 OF 2018
IN
SUIT NO.752 OF 2018
Shri Ramprakash Bhagirathi Yadav .. Plaintiff
Versus
Shri Ramswaroop Bhagirathi Yadav .. Defendant
Mr. Sharma, advocate for plaintiff
Mr. Asit Singh, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 12th December, 2019
ORAL ORDER
Notice of motion is taken out by the plaintiff seeking temporary
injunction that defendant, his servants, agents or any person claiming
through him be restrained from interfering/disturbing/removing and/or
dispossessing him from suit premises i.e. Sangam Nagar, S.P. Road,
Wadala (East), Mumbai37 without following due process of law.
2. It is the contention of plaintiff that he is in settled, constructive,
physical and actual use, occupation and possession of suit premises.
Defendant is real brother of plaintiff who permanently resides at native
place in Uttar Pradesh. At present defendant has come to city of
Mumbai and attempted to dispossess him from suit premises. During
the course of use and occupation of plaintiff of suit premises, his name
has appeared in ration card along with defendant since November,
2014. He has also got Aadhar card, election identity card, Pan card, gas
connection and bank account in Union Bank of India, Wadala at the
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address of suit premises. It is further contended that in the year 2015,
defendant attempted to dispossess plaintiff from suit premises. He has
filed written complaint dated 14.09.2015 with police authorities in that
respect. On 04.03.2018 at about 1.00 p.m., defendant has abused
plaintiff on telephone and threatened him to dispossess from suit
premises with the help of antisocial elements. NC complaint in relation
to said incident has been filed with concerned police station. On
06.03.2018 at about 12.30 p.m, defendant attempted to dispossess
plaintiff from the suit premises with the help of his antisocial associates
but he could not succeed. In this backdrop, plaintiff has claimed relief in
above terms.
3. Defendant filed his written statement vide Exh.03 and also filed
pursis vide Exh.04 to treat his written statement as reply to present
notice of motion. It is the contention of defendant that suit premises
was purchased by their elder brother Ramashankar Yadav and
previously he was residing along with his elder brother. He has
purchased suit premises from his elder brother who has inducted him in
suit premises exclusively. After purchase of suit premises, he has
obtained electricity bill on his name at the address of suit premises and
paying electricity bill of suit premises on his name. Ration card and pan
card have been issued at the address of suit premises. He denied that
plaintiff is in settled possession of suit premises since prior to 2010. He
has not disputed that he is brother of plaintiff but denied that he
permanently resides at native place in Uttar Pradesh. It is further
contended that in the year 2014, plaintiff came to Mumbai for the
purpose of job and told to him that he is not getting anywhere job in
Mumbai because of not having any address proof of Mumbai. Therefore,
due to natural love and affection the defendant has inducted the names
of plaintiff and his wife in ration card just for the address proof. Said
ration card was misplaced therefore he applied for new ration card and
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Rationing Authority has issued new ration card on his name only after
verifying the presence of this defendant in suit premises. Plaintiff never
resided in suit premises. Since beginning plaintiff is residing in some
chawl near to the suit premises on leave and licence basis. It is further
contended that plaintiff taking advantage of his name in ration card got
Aadhar card, election card, Pan card, gas connection and bank passbook
with an object to grab suit premises. In light of these contention
defendant has prayed for dismissal of notice of motion.
4. Perused notice of motion, affidavit in support of it, reply of
defendant and record and proceeding in the suit. Heard respective
counsel for parties. They advanced their argument in accordance with
respective contention of the parties.
5. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under:
POINTS FINDINGS
1.Whether plaintiff has got prima facie case? …No.
2.Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
…No.
3.Whether balance of convenience lies in favour of
plaintiff?
…No.
4. What order? As per final
order.
REASONS
As to point Nos.1 to 3
6. I have carefully gone through the averments made in plaint. It is
clear that entire plaint is silent as to how plaintiff allegedly acquired
suit premises. He has not specifically stated as to who is owner of suit
premises and in what capacity he allegedly came into possession of suit
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premises. His pleadings are vague. It is apparent that plaintiff has
suppressed material facts.
7. Plaintiff has filed copy of ration card No. KA508256 which
stands in the name of defendant at the address of suit premises. No
doubt, names of plaintiff and his wife are entered in the said ration card
on 26.11.2014. Plaintiff has not given any explanation as to how ration
card has been issued in the name of defendant at the address of suit
premises. Prima facie contention of plaintiff that defendant permanently
resides at native place in U.P. does not inspire confidence in view of the
fact that ration card has been issued in the name of defendant at the
address of suit premises on 07.07.2010 itself. No doubt, Aadhar card,
election identity card, bank passbook and gas connection have been
issued at the address of Sangam Nagar, S.P. Road, Wadala but as
pointed above plaintiff has not clarified specifically that as to how he
allegedly acquired suit premises and as to who allegedly inducted him
into suit premises. Plaintiff has filed copy of the complaint dated
14.09.2015 wherein it is mentioned that suit premises has been
constructed jointly by plaintiff, his brothers and father. But this fact is
not disclosed in the plaint. It indicates that plaintiff has not come with
clean hands. Even considering the recitals in the complaint dated
14.09.2015 as pointed above it seems that plaintiff claimed that he is
coowner of the suit premises along with his brothers and father.
8. It is settled law that possession of one coowner is for and on
behalf of other coowners and coowner cannot claim injunction so as to
exclude other coowners from exercising their right as coowners. In
present case even assuming that plaintiff is coowner along with
defendant in relation to suit premises, he under the garb of injunction
as sought wants to deprive defendant from exercising his right over suit
premises as coowner. That being so, he is not entitled for relief of
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injunction as sought. Even otherwise as already pointed out that
plaintiff has suppressed material facts and he has not come with clean
hands. It is settled law that person claiming equitable relief of
injunction must come with clean hands and must not suppressed
material facts. Plaintiff has not come with clean hands and suppressed
material facts so too he is not entitled for equitable relief of injunction.
9. From discussion made above it is clear that plaintiff has not
made out prima facie case, even balance of convenience does not lie in
his favour and he failed to prove that he will suffer irreparable loss if
relief sought is refused. Hence, I answer point Nos.1 to 3 in negative.
In view of my findings to point Nos.1 to 3 in negative, present
notice of motion deserves to be dismissed. Hence, pass following order.
ORDER
Notice of Motion No.1587 of 2018 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 12.12.2019 Gr. Bombay
Typed on : 12.12.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13.12.2019
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
12.12.2019
JUDGMENT/ORDER signed by P.O.
on
13.12.2019
JUDGMENT/ORDER uploaded on 13.12.2019
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