Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1626/18 (Suit 884/18)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1626/2018
IN
S .C. SUIT NO.884/2018
M/s. Shri K. Kamraj Memorial Library,
A Public Trust & Ors. ..Plaintiffs
V/s.
Mr. Sherman Durai Tangaiya ..Defendant
Appearance:
Adv. Mr.Kothari for plaintiffs.
Adv. Mr. Upadhyay for the defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 26.9.2019.
ORAL ORDER
1. This Notice of Motion(N/M) is taken out by the plaintiffs
seeking relief of temporary injunction during pendency of suit. It is
prayed that the defendant, his servants, agents, and representatives
through him be restrained from creating any third party interest in the
suit property, which is individual part of the library partly occupied by
the defendant. It is further prayed that the defendant may be directed
to pay Rs.8000/ per month to the plaintiff Trust by way of mesne profit
to continue illegal use and occupation of the suit premises. The N/M is
supported by an affidavit filed by Mrs. Sugandhi Francis, President of
the plaintiff Trust.
2. The notice of motion is strongly opposed by the Ld.
Counsel for the defendant. He has relied upon the reply submitted on
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record by Mr. Sherman Durai Tangaiya.
3. I have heard Ld. Counsels for both sides on the N/M and
perused the pleadings of the parties in the N/M as well as in the Suit
and WS. It is submitted by Ld. Counsel for the plaintiff that, the
plaintiff has filed Suit against the defendant for various reliefs as per
prayer clause in the plaint. It is submitted that the plaintiff is a
registered public Trust registered under the Bombay Trust Act, 1950,
having registration No.E33421. The plaintiffs no.2 to 8 are its trustees.
The registration certification and resolution dated 4.12.2017 is filed on
record vide Exhs.A and B along with the plaint. The plaintiff trust is a
providing its services in the field of education, particularly to the
downtrodden and needy children of Tamil Community. The plaintiff
Trust is running a library in the name of Shri K. Kamraj Memorial
Library.
4. It is submitted that an agreement was executed on
15.5.1976 between in Ramanand Gupta i.e. original owner of the
premises and one Mr. K.T. Puuswamy, the then President of the
plaintiff Trust and library. As per said agreement, the plaintiff Trust,
which was unregistered at that time, had purchased the ownership
rights in the suit premises admeasuring 280 sq. ft. for consideration of
Rs.1600. Copy of the said agreement of sale is filed with the plaint at
Ex.C. Rough sketch plan of the library is also filed at Ex.D and copy of
Municipal tax receipt is at Exh.E for the year 201718. It is submitted on
behalf of the plaintiff that, after purchase of the suit room by original
owner, the defendant was appointed as care taker of the library without
any remuneration. The defendant was allowed to stay gratuitously in
one portion of the said library premises i.e. in the portion admeasuring
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10 X 12 sq. ft. for the sake of convenience. It is submitted that, the suit
premises is a indivisible part of library and defendant is occupying the
above said portion as gratuitous/ permissive possessee. The defendant
has no independent right, title or interest in the suit premises.
5. It is submitted that in the month of February 2015, the
defendant had started illegal construction of upper floor on the library
premises and it was objected by the plaintiff Trust. It has come to the
knowledge of the plaintiff that, the defendant has also obtained ration
card by providing his address as the suit premises with a malafide
intention to grab the suit premises. The defendant has obtained electric
meter in the suit premises. Objection was taken by the plaintiff Trust by
writing a letter to the Electric Distribution Co. and rationing authorities
at Bhandup and sought clarification. Copy of the letters dated
24.2.2015 and 5.10.2015 are filed along with the plaint vide Ex.F colly.
The Electric Distribution Company and ration authority, Bhandup had
submitted their reply dated 4.5.2015 and 2.5.2015 respectively and
informed the plaintiff that, the ration card is not a proof of residence
as per Government Circular dated 5.6.2010. Copy of reply is filed on
record vide Ex.G (colly.). It is the case of the plaintiff that, the
defendant has not produced any document showing his right, title or
interest over the suit property in the capacity as a tenant etc.
6. On the above factual background, it is the case of the
plaintiff that the plaintiff Trust had called a General Body Meeting on
8.2.2015 for electing new Committee. In the said meeting, new
Committee was elected and it was decided amicably to hand over the
documents pertaining to the library and vacate the library premises
including the suit premises by 10.4.2015. But the defendant has failed
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to vacate the suit premises and hand over the possession of the portion
occupied by him to the plaintiff with a malafide intention, the
defendant had filed a Suit bearing no. 530/2015 for declaration and
injunction before this court claiming ownership of the suit premises. In
the meeting dated 15.2.2015, new committee of the plaintiff Trust had
decided to look after the functioning of the said library and in the said
meeting, the wife of the plaintiff and his daughter had started abusing
the members of the plaintiff Trust and the plaintiff was constrained to
call for police aid to prevent disturbance and to provide protection.
7. It is vehemently contended by Ld. Counsel for the plaintiff
that, occupation of the suit premises by the defendant is unlawful and
without any authority. He has listed fact of the case and submitted
that, the defendant has filed false Suit against the plaintiff bearing no.
530/15 claiming declaration of ownership and injunction in respect of
the suit premises and therefore, the plaintiff is entitled for mesne profit
@ Rs.8000/ per month from the defendant during pendency of the
suit. The plaintiff is also entitled for seeking temporary injunction
against the defendant for not creating any 3rd party interest in the suit
premises during pendency of the suit. Hence, the N/M taken out by
the plaintiff deserves to be allowed in the interest of justice.
8. Ld. Counsel for the defendant has strongly opposed the
Motion and relied on the WS (Ex.2) as well as reply submitted to the
N/M. It is submitted that, the suit filed by the plaintiff itself is false and
frivolous and suffers from suppression of material facts from the court.
The plaintiff has not approached the court with clean hands and has
given incorrect description of the suit premises as well as address of the
plaintiff M/s.K. Kamraj Memorial Library through plaintiff Trust. From
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the pleadings of the plaint, it does not become clear whether the
defendant was residing in room no.1 or room no.2 of the Ganesh Nagar,
Ranu Chawl, Quary Road, Near Jijamta High School, Bhandup(W),
Mumbai78. Ld. Counsel for the defendant has also challenged the
legality and validity of the agreement of sale relied upon by the plaintiff
on the ground that, the stamp paper was purchased in the name of
different person who is not party to the agreement and vendor has not
signed to the effect that he has received the consideration amount. The
agreement of sale is not a registered document and it has no effect of
creating any right, title interest in favour of the plaintiff. The suit
premises do not belong to the plaintiff Trust. It is the case of the
defendant that, he is residing in the suit premises and has taken the
same from one Hanumant by executing an affidavit in his favour and he
had handed over possession of the same to him. The defendant and his
family is having ration card, school ID, Aadhar Card, electricity bill etc.
showing same address and therefore, the defendant has made out a
prima facie case to show that, he has entered the suit premises lawfully
and is in possession of the same. It is submitted that, the alleged
agreement of sale dated 15.5.1976 has nothing to do with the suit
premises.
9. Ld. Counsel for the defendant submitted that on 15.5.2018,
the defendant had submitted a written complaint to the local police
station i.e. Bhandup police station in the context of the dispute in
respect of the suit premises. The defendant has also filed the suit
bearing No.530/15 against the plaintiff in this court. The defendant
had applied for documents under RTI Act, 2005 from the office of Asst.
A&C(S)Ward, Municipal Corporation Office, Bhandup(W), Mumbai and
an information of assessment has been given on the basis of information
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provide by the residents of the plaintiff Trust dated 30.6.2016 but there
is no entry in the office of Asst. Charity Commissioner, Bhandup(W),
Mumbai in this regard. Under the above circumstances, Ld. counsel for
the defendant submitted that, the plaintiff has no right, title in respect
of the suit premises and the present N/M seeking relief against the
defendant is devoid of any merit and it is liable to be dismissed.
10. I have gone through the pleadings of the parties and
documents filed on record by the defendant along with WS, which
include copy of ration card, Aadhar Card, Census receipt for the year
2000 of the defendant, copy of affidavit executed by Hanumant Rao in
the year 1979, copy of ID Card issued by Bright High School Jr.
College, Bhandup in the name of defendant to the effect that he was
working since 1981, copy of progress report of the children of the
defendant, copy of complaint submitted by the defendant to the
Bhandup police station dated 15.5.2018, copy of RTI application
submitted to the Municipal Corporation, copy of agreement of sale
dated 15.5.1976 between Ramanand Gupta and one K.T. Ponnuswamy ,
copy of electric bill etc.
11. After considering the rival contentions of the both sides, I
find that, there are disputed questions of facts involved in the case
regarding suit premises, its ownership, right, title and interest as well as
legality of the possession of the defendant over the suit premises.
However, it is clear that as per documents on record, the defendant is in
settled possession of the suit premises for considerable length of time
and therefore, during pendency of the suit, no order of temporary
injunction can be passed directing the defendant to pay Rs.8000/ per
month to the plaintiff by way of mesne profit. However, the purpose
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of the plaintiff would be served if the court passes an order directing the
defendant to maintain status quo in respect of legal status of the suit
premises and not to create any 3rd party interest during pendency of
the Suit. Hence, I proceed to pass following order:
ORDER
1. Notice of Motion No.1626/2018 is hereby partly
allowed.
2. Prayer clause(a) is allowed and defendant is directed
to maintain statusquo in respect of legal status of the
suit premises and not to create third party interest
during pendency of the suit.
3. Prayer clause(b) is not maintainable during pendency
of suit, hence it is rejected.
4. Authenticated copy of today's Roznama shall
be given to the Ld. Counsels for both sides for
information and necessary compliance on their
part.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 26.9.2019 Gr. Bombay (C.R. 03)
Dictated on :26.9.2019
Typed on : 27.9.2019
Draft given on 27.9.2019.
Signed by HHJ on : 5.10.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 5.10.19
TIME: 11.30 am (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 26.9.19
Judgment/ order signed by P.O on 5.10.19
Judgment/ order uploaded on 5.10.19
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