Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.2040 OF 2019
IN
SUIT (STAMP) NO.5879 OF 2019
Mr.Hirachand Saremalji Vardhan ... Plaintiff
Versus
Mr.Babulal Saremalji Vardhan ... Defendant
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 28th JUNE, 2019
Mr.Darshan Jani, ld. adv. for plaintiff.
Mr.Ankit Rajput I/b.Adv.Rajesh Jain, ld adv. for defendant.
O R D E R
1. This notice of motion is taken out by plaintiff for
appointment of Court Receiver High Court Bombay with all powers
under Order40 Rule1 of CPC with a direction to Court Receiver to take
possession of suit premises and to put plaintiff in possession of suit
premises as agent of Court Receiver without any royalty. Plaintiff has
also prayed for temporary injunction restraining defendant, his
servants, agents, representatives or any person claiming through him
from dealing with, transferring inducting and creating any third party
rights or parting with possession of suit premises i.e. Flat No.A/82, 3rd
Floor, Gitanjali Building, Dr.D.B. Marg, Mumbai Central, Mumbai08.
Plaintiff has filed his affidavit in support of notice of motion contending
that he is intending to rely upon the contentions raised in the plaint. It
is further mentioned in affidavit of plaintiff that on 23/03/2019 when
plaintiff and his family were out of Mumbai, defendant with his
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daughter in law and 1015 anti social elements broke open lock of suit
premises of plaintiff and took its forcible possession by throwing out
plaintiff's articles and things from the suit premises. As mentioned in
the affidavit of plaintiff, defendant, his daughterinlaw and those 1015
antisocial elements allegedly have broken plaintiff's safe and they have
stolen cash of Rs.1,05,000/ and gold approximately weighing 100
grams which was lying in suit premises.
2. Plaintiff has mentioned in his affidavit that defendant has
deputed 34 bouncers/ security guards in the suit premises and thereby
prevented plaintiff and his family members to enter into suit premises.
Thereafter, by plaintiff's advocate letter dated 26/03/2019, the plaintiff
informed said incident to Senior Inspector of Nagpada Police Station,
however police did nothing in the matter. According to plaintiff himself
and his family members are in possession of suit premises and
therefore, plaintiff is entitled to the decree directing defendant to hand
over peaceful possession of the suit premises to plaintiff. It is alleged
that defendant and his associates have taken law in their hands by
dispossessing plaintiff and his family members from suit premises
without their consent. It is alleged that defendants and his associates
are illegally using suit premises. Therefore, according to plaintiff, this is
the fit case where Court should appoint Court Receiver High Court
Bombay under Order40 Rule1 of CPC with a direction to Court
Receiver to take possession of suit premises during pendancy of the suit
and to put plaintiff into possession of suit premises as agent of Court
Receiver without any royalty. According to plaintiff, if Court Receiver
will not be appointed plaintiff will suffer from irreparable loss and
damages which will not be compensated in terms of money. Further
according to plaintiff no prejudice or loss would be caused to defendant
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if such a Court Receiver will be appointed. As mentioned in the
affidavit of plaintiff he has apprehension that defendant may sale or
transfer suit premises or create third party right in suit premises.
Therefore, according to plaintiff temporary injunction as prayed in
prayer clause(b) of notice of motion is necessary to be granted by the
Court. As mentioned in the affidavit of plaintiff this suit is filed U/s.6 of
Specific Relief Act against defendant for restoration of possession of suit
premises to plaintiff who is dispossessed by defendant without
following due process of law and without consent of plaintiff.
3. As plaintiff is intending to rely upon the contentions from
the plaint, I refer here those contentions. Plaintiff has filed this suit for
direction to defendant to hand over the vacant and peaceful possession
of suit premises to plaintiff. It is plaintiff's case that plaintiff with his
family members is occupying and residing in suit premises. Defendant
is elder brother of plaintiff and defendant with his family members is
staying at his address shown in defendant's array. According to plaintiff
by virtue of family settlement between plaintiff and defendant since
1920 plaintiff and his family is occupying the suit premises which
admeasuring about 160 st.ft. Further plaintiff is paying maintenance
charges/ rent of suit premises to MHADA through plaintiff's bank
account of Saraswat Bank, Girgaon Branch. Said account stands in the
name of plaintiff and his wife. As pleaded plaintiff's son namely
Abhishek was born on 30/01/1986 at the address as mentioned in the
birth certificate of Abhishek which is issued by Municipal Corporation of
Greater Mumbai. In the year, 1983 plaintiff had applied for landline
telephone connection and such landline telephone connection was
allotted to plaintiff by Bombay Telephones by letter dated 07/06/1983.
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4. As pleaded in the plaint, plaintiff is holding Passport issued
by the Passport Authority in the year, 1982. Plaintiff is having Saving
Account at Union Bank of India. He is holding driving License issued by
RTO, Bombay. According to plaintiff, plaintiff and defendant are not on
good terms for last several years because of the fact that defendant has
ulterior motive and evil design and defendant has defrauded the
plaintiff in respect of joint family properties i.e. land situated at
Bhinmal, Rajasthan. It is alleged that defendant being elder brother has
never bothered to ask the plaintiff or to consult him regarding joint
family properties. Therefore, differences and disputes started between
the families of plaintiff and defendant and plaintiff was required to file
Civil Suit bearing No.49/2018 at Bhinmal Court, Rajasthan. As
pleaded said suit is pending in said Court.
5. It is alleged that on 23/03/2019 when plaintiff, his wife
and son Abhishek were out of Mumbai, by taking advantage of the
situation, defendant with his daughterinlaw Ms.Sangita Vardhan and
1015 anti social elements came to suit premises and broke open lock
of suit premises. It is alleged that defendant with his daughter in law
and those 1015 anti social elements have thrown all articles of plaintiff
which were in suit premises, they have broken the safe and carried out
100 grams gold with cash of Rs.1,05,000/ lying in suit premises.
Further it is alleged that defendant has deputed 34 bouncers/security
guards in suit premises and prevented plaintiff and his family members
from entering in suit premises. As such according to plaintiff, defendant
has dispossessed plaintiff and his family members. Therefore, plaintiff
was required to shift temporarily to the house of his relative and said
house is situated in the vicinity of the suit premises.
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6. It is contended that after above referred incident plaintiff
immediately approached Nagpada Police station and lodged report,
however defendant and his associates were in Nagpada Police Station
and Duty Officer of said police station refused to register plaitntiff's
report. It is alleged that said Duty Officer of Police Station threatened
plaintiff not to register any complaint against defendant and his
associates. Hence, plaintiff apprehended the danger and addressed
letter dated 26/03/2019 to Police Inspector of Nagpada Police Station,
however, police authorities did nothing in the matter. Hence, according
to plaintiff he is required to file this suit and according to him he is
entitled for decree directing defendant, his agents, servants, guards to
hand over vacant and peaceful possession of suit premises to plaintiff.
7. It is alleged that defendant and his associates have taken
law in their hands by dispossessing plaintiff and his family members
from suit premises and defendant and his associates are illegally using
suit premises Hence, plaintiff is constrained to file the notice of motion
taken out by the plaintiff.
8. Defendant has filed his affidavit of reply to resist the
notice of motion taken out by the plaintiff. According to defendant, the
notice of motion is not maintainable either on facts or in the eyes of law
and it is liable to be dismissed. It is alleged that plaintiff has not come
before the Court with clean hands and plaintiff has presented incorrect
version of facts before the Court thereby plaintiff has attempted to
misguide and mislead the Court. According to defendant in plaint and
in affidavit filed in support of notice of motion, plaintiff has made
several contradictory statements and therefore, the notice of motion is
not maintainable and liable to be dismissed. It is alleged that notice of
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motion taken out by plaintiff is nothing but abuse of process of law.
Further plaintiff has not made out prima facie case against defendant.
According to defendant, it is evident that plaintiff has filed present suit
and notice of motion with some oblique motives in an endeavour to
force defendant to accept certain illegal demands of the plaintiff and
defendant is not liable for the same. It is alleged that the allegations
made by the plaintiff against defendant are all got up and bogus
allegations. Those allegations are made with intention to somehow
falsely affix some liability on defendant so as to pressurize the
defendant in bowing to the illegal claim of the plaintiff.
9. According to defendant there is no iota of proof or evidence
against defendant except for bald and vague statements made in plaint
and affidavit filed in support of notice of motion. Hence, according to
defendant the notice of motion is necessary to be dismissed.
10. Under the head true facts of the case, defendant has
contended that he came to Mumbai about in the year, 1962 and started
his business. Within few years defendant was in need of premises for his
residence and through some broker met Shri Bhagwatilal Chowkchand
and agreed to purchase suit premises. After discussion with Bhagwatilal,
he agreed to sale suit premises to defendant for some consideration.
After making agreed payment to Bhagwatilal, defendant submitted an
application before Competent authority of MHADA to enter defendant's
name in place of Bhagwatilal in respect of suit premises. Thereafter
authorities of MHADA issued allotment/ order No.B.B.C.A.
No.10811033 dated 29/01/1981 and since then the defendant is owner
of the suit premises.
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11. It is contention of defendant that later on plaintiff came
from native place to Mumbai for the purpose of business. However, at
that time plaintiff was not having any accommodation. Plaintiff
requested defendant to allow plaintiff to reside with defendant till he
gets suitable residence. Considering relation without any doubt and
thought, out of gratuitous, defendant gave chance to plaintiff to reside
with defendant and plaintiff agreed to share the expenses. As family
expanded, the defendant was in need of some bigger place, therefore, in
the year, 1986 defendant has purchased another place at Shuklaji Street
and then defendant shifted to the address shown in the defendant's
array. Defendant shifted to said premises with his family but defendant
was residing in suit premises frequently. When defendant was shifting
to new premises plaintiff requested defendant that plaintiff may be
allowed to continue to reside in the suit premises on gratuitous basis.
Plaintiff assured that plaintiff will take due care of suit premises without
any right, title, interest or claim over suit premises.
12. Defendant has contended that after regular interval, the
defendant was requesting plaintiff to vacate the suit premises and to
hand over possession of suit premises to defendant as family of
defendant was further expanded and defendant was in personal need of
suit premises. It is alleged that plaintiff always with ill and malafide
intention misguided the defendant and requested defendant for some
more time. Plaintiff also assured defendant that plaintiff was searching
the place for his residence and plaintiff will shift to such place.
13. Defendant has contended that through his reliable sources
defendant got knowledge of the fact that plaintiff has purchased Room
No.A/85 in the same building. Therefore, defendant informed plaintiff
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to vacate suit premises because plaintiff had purchased his own room.
According to defendant, in the year, about 2010 plaintiff shifted from
the suit premises to the premises which is shown as address of plaintiff
and which is referred in plaintiff's array. According to defendant,
plaintiff shifted to said address behind back of defendant and without
giving any idea to defendant as such plaintiff has changed his address
from suit premises to the address shown in plaintiff's array. Plaintiff
also changed his telephone No.23090872 having Customer Account
No.2041180872 and account number is showing plaintiff's address
which is shown in the plaintiff's array of the plaint. Defendant has
contended that whenever defendant informed plaintiff to vacate suit
premises, plaintiff used to visit defendant's residence informing that
plaintiff had suffered very huge loss in the business and he has sold
Room No.A/85 in 201314. Plaintiff used to say that plaintiff is
homeless as such plaintiff requested defendant to grant some time for
vacating suit premises. Defendant never had doubt about plaintiff
because plaintiff is younger brother of defendant hence defendant was
unaware about ill and malafide intention to grab suit premises.
14. It is contended that defendant's son Rajesh Babulal
Vardhan expired on 16/07/2017 and defendant was under depression
for more than one year due to death of his young son who had left
behind wife and two daughters. According to defendant due to death of
his son all responsibility and burden of day to day expenses of family
again shifted back upon defendant hence he thought to give suit
premises on rent or dispose it off to meet his day today needs and day
to day needs of his family. However, to the shock and surprise of
defendant he received a notice from Civil Court Bhinmal, Rajasthan.
Said suit was filed by plaintiff against defendant and other bearing
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No.48/2018. As defendant received said notice he got knowledge about
ill intention of plaintiff. Thereafter, defendant visited his native place
and filed necessary application in said proceedings. It is alleged that
though defendant had replied the case filed by plaintiff at Bhinmal
Court, Rajasthan, plaintiff is continuously pressurizing defendant and
asking defendant to vacate the suit premises. However, due to
depression, old age, defendant was not able to do the same.
15. It is contended that looking at his old age, defendant is
intending to transfer suit premises in the name of his daughterinlaw to
protect her interest and therefore, he executed registered gift deed
before SubRegistrar of Assurance, Mumbai City. Said gift deed is
bearing No.BBE494832018, as such according to defendant he has
gifted suit premises to daughter in law and he is required to change all
related documents in the name of his daughter in law. With same
intention defendant visited society office on or about last week of
December, 2018. At the same time the defendant visited the suit
premises and he was surprised to see that plaintiff was not residing in
suit premises and one other person was residing there. When defendant
inquired with said other person it was told by said other person that his
name was Bipin Kothari. It was further informed by Bipin Kothari that
Bipin Kothari was residing in suit premises since long and was paying
rent of Rs.13,000/. Bipin Kothari also informed defendant that on
14/02/2019 Bipin Kothari was going to vacate suit premises. That time
Bipin Kothari sought defendant's information and defendant has told his
name, shown his identity card to Bipin Kothari. After satisfaction of
Bipin Kothari about defendant's right defendant informed Bipin Kothari
that Bipin Kothari shall hand over key to defendant on vacating it.
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Defendant also informed Bipin Kothari that if he fails in handing
over the key of suit premises to defendant, he will take necessary
action against Bipin Kothari. It is further contended that on
14/02/2019 defendant once again visited suit premises and asked
Bipin Kothari to hand over the key of suit premises and to give
vacant and peaceful possession of suit premises. It is contended
that the suit filed by plaintiff at Bhinmal Court of Rajasthan was
dismissed on 25/04/2019.
16. Defendant has denied all allegations made by plaintiff
contending that since 2010 plaintiff is residing at Room no.701,
Trimurti Tribhuvan Road, Girgaon, Mumbai and not at suit
premises. Further defendant contended that he had never broken
the lock of suit premises. According to defendant since 2010
plaintiff never resided in suit premises and therefore no question
arises of lying the things and articles of the plaintiff in suit
premises. According to defendant, plaintiff was not possessing suit
premises hence no question arises of plaintiff’s entitlement for the
decree as prayed for. Further according to defendant, plaintiff is
not entitled for the appointment of Court Receiver of High Court
Bombay. It is alleged that plaintiff is misusing the provisions of
law and therefore, plaintiff is not entitled for any relief because no
cause of action is mentioned in notice of motion. According to
defendant, plaintiff’s claim is having assumptive nature and any
legal action against defendant is not maintainable on the basis of
assumption and presumption. It is alleged that plaintiff’s claim is
false, baseless and the allegations in the plaint are made to tarnish
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the defendant’s reputation. It is contended that plaintiff cannot be
allowed to take benefit on his own fault. with the help all those
contentions defendant has contended that plaintiff is not entitled
to the reliefs as prayed in notice of motion.
17. I have heard plaintiff’s advocate Mr.Jani and defendant’s
advocate Mr.Ankit Rajput at length. It is pertinent to note here
that arguments of parties were heard by this Court on 26/06/2019
and the matter was posted for order on 27/06/2019. However,
this Court was busy on 27/06/2019 in the judgment of Hon’ble
Supreme Court time bound matter and this Court was also busy in
deciding one urgent notice of motion by which election process of
one Institute was sought to be interfered by Court. Hence this
court could not decide this notice of motion yesterday on
27/06/2019 and today advocate Mr.Pandey had appeared on
behalf of plaintiff in place of advocate Mr.Jani. After appearance
of Mr.Pandey plaintiff has filed affidavit of one Bipin Kothari in
support of plaintiff’s case and copy of said affidavit is served upon
defendant’s advocate at 5.10 p.m. and thereafter only I have
proceeded to pass further order.
18. After referring above material facts, now I refer the
arguments advanced on behalf of parties. Plaintiff’s advocate
referred the documents annexed to the plaint and argued that
plaintiff is residing in suit premises since 1980. It is argued that
there is custom in the family of plaintiff and defendant that
properties of family should be purchased in the name of defendant
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who is elder brother from the family. Plaintiff’s advocate argued
that while going out of station plaintiff has handed over the key of
suit premises to one Bipin Kothari, however when plaintiff
returned back Bipin Kothari has handed over said key to plaintiff
and Bipin Kothari has not given the key to defendant as contended
by defendant in the affidavit of reply. It is argued that in the year,
2011 wife of plaintiff was shifted to another premises due to her
ailment and hence temporary telephone connection was obtained
in the name of plaintiff for convenience of his wife. It is argued
that entries from the passbook of bank account of plaintiff are
related to the payment of maintenance charges of suit premises to
MHADA, hence on the basis of those entries and on the basis of
plaintiff’s address shown in passbook and other documents like
driving license, birth certificate of plaintiff’s son, passport of
plaintiff etc. plaintiff is possessing suit premises. In respect of copy
of report dated 26/03/2019 it was argued that said report was
filed due to forcible dispossession of plaintiff from suit premises
and said dispossession was made by defendant. Plaintiff’s advocate
also dealt with defendant’s reply of notice of motion and rejoinder
submitted by plaintiff.
19. Defendant’s advocate Mr.Rajput has referred Para no.3 of
the plaint and pointed out that in said para plaintiff has contended
that he is residing in suit premises since 1920, however age of
plaintiff is 65 years and plaintiff was born in the year, 1951 as per
the documents filed by plaintiff, therefore, no question arises of
possessing the suit premises by plaintiff prior to his birth.
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Defendant’s advocate referred the word settlement from para3 of
the plaint and argued that neither document of any such
settlement is filed before the Court nor plaintiff has clarified that
whether said settlement was oral or written settlement.
Defendant’s advocate argued that there is no pleadings on the part
of plaintiff in respect of the custom argued by plaintiff’s advocate,
hence according defendant’s advocate plaintiff’s case is false at the
outset. In respect of the documents filed by plaintiff with plaint,
advocate Mr.Rajput argued that all the documents filed with plaint
are related to the decade of 1980 and no document of current
year is filed to show plaintiff’s present possession over suit
premises. While referring copy of passport of plaintiff it is argued
that plaintiff has not filed recent or renewed passport showing his
current address. In respect of passbook of plaintiff, it is argued
that the entries about payment of maintenance charges to MHADA
are appearing in said Passbook for the period upto 2015 only and
no such recent entries are appearing in said passbook. Therefore,
according to advocate Mr.Rajput the documents relied upon by
plaintiff are not helpful to prima facie establish his possession over
the suit premises. It is further argued that there is no evidence on
record to show that defendant has dispossessed plaintiff from suit
premises. In respect of copy of police report dated 26/03/2019, it
was argued on behalf of defendant that from said report it
becomes clear that on 26/03/2009 plaintiff was not possessing suit
premises. Exh.A annexed to the affidavit of reply of notice of
motion was referred and it is argued that said document proves
the fact that defendant has purchased suit premises from one
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Bhagwatilal Chaukchand on 21/01/1981 hence according to
defendant’s advocate no question arises of plaintiff’s possession
over suit premises in the year, 1980 as argued by plaintiff’s
advocate. The electricity bill of April 2019 filed by defendant is
referred and it is argued that said bill shows that defendant had
lastly paid the electricity charges of suit premises and not the
plaintiff. In respect of contentions raised in rejoinder by plaintiff it
is argued that those contentions are after thought, false and hence
according to defendant’s advocate notice of motion is liable to be
dismissed. Paragraph nos.9, 23 and 24 of affidavit of defendant
are also referred to show that Bipin Kothari had handed over key
of suit premises to defendant.
20. I have given serious consideration to the arguments
advanced on behalf of parties. I have carefully perused the
pleadings and documents upon which parties are intending to rely.
On careful perusal of pleadings of plaint, it is noticed by me that
plaintiff has not pleaded that in the month of March on which date
he had gone out of station and on which date he returned back to
Mumbai and on which date Bipin Kothari returned back him the
key of suit premises. Admittedly, plaintiff is residing at Room
no.701, Trimurti Tribhuvan Road, Girgaon, Mumbai and suit
premises is having address as A/82, Gitanjali Building, 3rd Floor,
D.B. Marg, Mumbai Central, Mumbai. Thus, at least as on the date
of filing of this suit admittedly plaintiff was not occupying suit
premises. At this juncture, it becomes necessary to point out here
that Court has raised query with plaintiff’s advocate that since
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when plaintiff is residing in Trimurti Building, Tribhuvan Road,
Girgaon and in which capacity plaintiff is residing in said premises,
plaintiff’s advocate submitted that plaintiff with his family
members is residing in Room no.701 from Trimurti Building
Tribhuvan Road, Girgaon after plaintiff’s dispossession from suit
premises. This query was raised considering the fact that
defendant has contended that since 2010 plaintiff is residing in
Giragaon area. After said query I have asked plaintiff’s advocate
that whether plaintiff is having any document to show plaintiff’s
capacity either as tenant or licensee to occupy said room no.701,
plaintiff’s advocate submitted that plaintiff is residing in said room
at the mercy of one of the relative. Actually, fact that since when
plaintiff is residing in room no.701 Trimurti Building, Tribhuvan
Road, Girgaon, Mumbai is not pleaded in the plaint. If really
plaintiff would have occupied room no.701 of Trimurti Building,
Tribhuvan Road, Girgaon, Mumbai after his dispossession it was
necessary on the part of plaintiff to plead that exactly on which
date he has shifted to said room no.701 of Trimurti Building.
There are no pleadings to that effect.
21. Plaintiff's pleadings about his dispossession from suit
premises are very vague. Plaintiff has not clarified exactly that
whether on 23/03/2019 plaintiff was in suit premises or whether
he was out of station, Bipin Kothari asked plaintiff for a short
period to allow him to reside in suit premises and since plaintiff
going out of town, Bipin Kothari agreed to take care of suit
premises in absence of plaintiff. I have noticed that plaintiff has
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not clarified that when he has gone out of Bombay, when he has
returned back, for how many days Bipin Kothari was possessing
the suit premises and when Bipin Kothari returned back the key of
the suit premises to plaintiff. Those were very material facts to
consider plaintiff's possession over suit premises on the alleged
date of his dispossession i.e. 23/03/2019. If really the incident
dated 23/03/2019 would have been taken place in presence of
plaintiff, definitely immediately on the very day plaintiff would
have approached police station. However, the report submitted to
police is dated 26/03/2019 and as pleaded by plaintiff that on 23rd
plaintiff had gone to police station, however defendant with his
associates was present in the police station therefore, the Duty
Officer has not accepted plaintiff’s report, on the contrary said
Duty Officer threatened plaintiff not to file report against
defendant. This contention of plaintiff cannot be believed mainly
because if really plaintiff would have been dispossessed on
23/03/2019 with his family members from suit premises and if
really the Duty Officer of Nagpada Police Station would have
refused to accept plaintiff’s report definitely the plaintiff would
have approached to Superior authorities of police on the very day
and would have raised hue and cry for justice. On the contrary
copy of report dated 26/03/2019 is filed by plaintiff on record and
said report was filed by plaintiff with police through one advocate.
Thus, it becomes clear that the report dated 26/03/2019 is
nothing but after thought attempt on the part of plaintiff.
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22. Suit premises is situated in Gitanjali building and
probably in said building so many occupants may be residing. If
really serious incident of dispossession would have taken place on
23/03/2019 and if really plaintiff would have occupied suit
premises since 1980 at least few of the persons would have come
forward to file affidavits in support of plaintiff’s case, but none of
the resident of Gitanjali building has filed on record the affidavit
to show that alleged incident has taken place. It is true that in
Mumbai next door persons do not cooperate each other but it does
not mean that long standing neighbours totally discard of such
serious incident of dispossession. In such circumstances, for want
to cogent evidence about plaintiff’s dispossession from suit
premises on 23/03/2019 I am unable to accept plaintiff’s case as
prima facie case. Further plaintiff has suppressed material facts
from the Court. He has not pleaded in the plait that in the year,
2011 his wife was residing in different premises in same building.
Further he has not clarified that any separate telephone number
was obtained in the name of plaintiff and all those material facts
are stated by plaintiff in his affidavit of rejoinder to rebut the
defendant’s case. Admittedly defendant is owner of suit premises.
Admittedly, there is no document of any settlement as pleaded by
plaintiff. It is natural that plaintiff being brother of defendant,
plaintiff would have got a chance to reside in suit premises as
gratuitous licensee or out of love and affection of defendant and it
is possible that in such stay of plaintiff in suit premises the
documents showing plaintiff’s address of suit premises may have
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submitted in various Banks, offices etc. but documents showing the
address of suit premises, in my opinion, are not helpful to prove
plaintiff’s possession over suit premises as on 23/03/2019 when
plaintiff’s pleadings itself are vague. It seems that due to one suit
filed by plaintiff in the Court of Rajasthan, relation between
plaintiff and defendant have become strained and it is possible that
they may make false allegations against each other. They may go
to any extent for protecting their own ego. However, for
considering prima face case, it is duty of the court to become firm
that there is strong pleadings by plaintiff and there is documentary
evidence in support of plaintiff’s strong case to show plaintiff’s
possession as on the date of alleged dispossession. Title clause of
the plaint shows that this suit is filed U/s.6 of Specific Relief Act.
For filing such a suit there is limitation of only six months and
even though plaintiff was dispossessed allegedly on 23/03/2019
he has approached the court after two months of alleged incident
i.e. coincidental on 23/05/2019. If really plaintiff would have been
dispossessed as alleged immediately plaintiff would have rushed to the
Court for restoration of his possession. Plaintiff was waiting for two
moths meanwhile admittedly in the month of April, 2019 plaintiff's suit
filed in Rajasthan Court was dismissed and thereafter plaintiff has
approached this Court. This conduct of plaintiff makes me to observe
that plaintiff's case cannot be believed about alleged dispossession and
it cannot be held that plaintiff has made out prima facie case for
granting temporary injunction as prayed or for appointment of Court
Receiver as prayed by plaintiff. Admittedly, defendant is owner of suit
premises and I am unable to understand as to how injunction can be
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granted against true owner of the property. According to plaintiff he
was occupying suit premises as on 23/03/2019 and plaintiff was
forcibly dispossessed by defendant with the help 1015 anti social
elements on said date. If really 1015 anti social elements would have
come to suit premises as alleged there would have been much chaos
and there would have been much hue and cry and therefore, it was
expected that any of the residents of Gitanjali building in which suit
premises is situated should have come forward to support plaintiff's case
so as to make it believable. In such circumstances, I find that plaintiff
has failed in making out prima facie case for granting temporary
injunction or granting relief as prayed for. As there is no evidence of
plaintiff's possession over suit premises on 23/03/2019 and as there is
no evidence about his dispossession from the suit premises on said date
by defendants, I find that balance of convenience does not lie in favour
of plaintiff. Admittedly defendant is owner of suit premises and if the
injunction as prayed will be granted against defendant who is true
owner of the suit premises, defendant will be deprived of his legal rights
as owner in respect of suit premises. Hence, defendant will suffer
irreparable loss which cannot be compensated in terms of money.
23. On the contrary, plaintiff is already residing at the house of
his relative and hence no question arises of plaintiff's sustaining any loss
on rejection of this notice of motion. Today plaintiff has filed affidavit of
Bipin Kothari, however said affidavit is filed after arguments are
advanced by parties and it is clear that said affidavit is after thought as
it is filed today, I find that said affidavit cannot be considered because it
was expected to be filed prior to the arguments of the parties. As such
as plaintiff has failed in establishing all three essential ingredients for
granting temporary injunction, I find that reliefs prayed in the notice of
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motion cannot be granted. Hence, I proceed to pass the following
order.
O R D E R
Notice of Motion No.2040/2019 stands dismissed/ disposed off.
Sd/
(K.P.NANDEDKAR)
28/06/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 28/06/2019
Transcribed on : 15/07/2019
Signed by HHJ on : 17/07/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
17/07/2019 2.50PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 28/06/2019
Judgment/order signed by P.O on 17/07/2019
Judgment/order uploaded on 17/07/2019
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