Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.2073/2019
MHCC010057532019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2073 OF 2019
IN
S.C. SUIT NO. 1160 OF 2019
1. Mr. Pratapsingh Haribhau Sawant
and Anr. ...Plaintiffs
V/s.
Mr. Jaysingh Haribhau Sawant and Ors. …Defendants
Appearance
Learned Adv. Mr. Sandip Ghogare for the plaintiffs.
Learned Adv. Mr. Dholakia for defendant No. 1
CORAM : HHJ R. S. Aradhye
(C.R.NO. 62)
Date : 19th September, 2024
O R D E R
This Notice of Motion is taken out by the plaintiffs for
temporarily restraining the defendants/their agents, servants and any
other person claiming through them in any manner from disturbing
their use, occupation and possession over the suit premises i.e. Room
No. 67-B, Khatau Chawl No. 5, Tank Pakhadi Road, Mumbai 400 011
(hereinafter referred to as “Suit Premises”). I have gone through the
affidavit-in-support filed by the plaintiff No. 2 in support of the notice of
motion.
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2. It is the contention of plaintiffs that they are in use,
occupation, possession and enjoyment of the suit premises which
originally stand in the name of husband of plaintiff No. 2 i.e. Shri
Ananda Kesoo Jagtap and during the life time, the said deceased
Ananda Kesoo Jagtap, allowed his sister who was the mother of plaintiff
No. 1 to reside with him along with the family members. In pursuant to
this, plaintiff No.1 along with the family members started residing
jointly in the suit premises. However, in the year 1967 deceased Ananda
Kesoo Jagtap was retired from his employment and therefore, along
with plaintiff No. 2, they all permanently shifted to their native place
and plaintiff No. 1 and his family members were put in exclusive use,
occupation and possession of the suit premises. Since, the plaintiff No.1
and his family members are in continuous occupation of the suit
premises, they used to pay regular rent to the Landlord in the name of
deceased Ananda Kesoo Jagtap.
3. It is further the case of plaintiffs that deceased defendant
No. 1 left the suit premises and firstly shifted to Burhanpur, Dist.
Khandwa, (M.P.) in the year 1974 for the business purpose and resided
there till the year 1996. After that deceased defendant No. 1 along with
his family members permanently shifted to the native place village
Bhikavadi (Khurd), Tal-Kadegaon, Dist. Sangli and had no concern with
the suit premises. Similarly, defendant Nos. 2 and 3 are also shifted to
Phagwara in Punjab State for employment purpose and then
permanently shifted to Banglore, Karnataka, whereas defendant No. 3
shifted to Dahisar, in the year 1984 and then obtained Room No.67-A
adjoining to the suit premises from its original tenant with the help of
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plaintiff No. 1. The defendant No. 2 resided in the said Room No. 67-A
upto 1997 and then after purchase of new flat at Antop Hill, Mumbai
vacated the Room No. 67-A.
4. As per the plaintiff he along with mother and bachelor
brother Suresh Haribhau Sawant is in continuous possession of the suit
premises and after their death remains in possession. But the
defendants more particularly defendant No. 3 threatened him with dire
consequences and continuously disturbing his possession over the suit
premises by all means. It is, therefore, prayed by the plaintiffs that by
issuing order of temporary injunction defendants be restrained from
disturbing or causing obstructions in their peaceful use, occupation and
possession of the suit premises till disposal of main suit.
5. Defendants adopted their written statement Exh. 2 as reply
to the notice of motion and by which strongly resisted the contentions
raised in the motion.
6. It is the defence taken by the defendants that they all and
more particularly defendant No. 3 is in continuous possession of suit
premises and used to pay the rent, light bill and other charges of the
suit premises. Furthermore, it is pointed out by the defendants that
there is no such room having No. 67-A as alleged by the plaintiffs, in
fact there is single room which is numbered as 67. But plaintiffs are
suppressed this fact with intent to mislead this Court. In so far as,
execution of any document by plaintiff No. 2 in favour of the plaintiff
No. 1 is concerned, defendants have shown their unawareness and not
commented on this aspect.
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7. Against the defence taken by the defendants they have
specifically stated in para No. 15 of the written statement that plaintiff
No. 1 had taken forcible possession of the suit premises by taking law in
his hand so obviously it becomes illegal possession. Due to which as per
the defendants, plaintiffs have not come with the clean hands when
claiming the equitable relief of temporary injunction thus, prayed for
dismissal of notice of motion with costs.
8. The following points arise for consideration and my
findings thereon with the reasons are as under.-
POINTS FINDINGS
1. Do the plaintiffs prove that prima facie case lies
their favour ?
Yes
2. Do the plaintiffs prove that balance of
convenience is also lies in their favour ?
Yes
3. Do the plaintiffs further prove that if the
temporary injunction is refused they will suffer
irreparable loss ?
Yes
4. What Order ? As per final
order.
REASONS
9. As to Points No. 1 to 3 : In order to prove the prima facie case
and balance of convenience lies in their favour, plaintiffs have relied
upon the documents Exh. A i.e. rent receipts, Exh. B Agreement Dtd.
13.06.1989, Exh. C tenancy agreement executed on 03.01.2018, Exh. D
copy of ration card and various copies of light bills issued by the BEST.
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Besides these documents, plaintiffs have relied upon the admissions
given by the defendants in their written statement about the possession
in suit premises of plaintiff No. 1 and particularly pointed out
paragraph No. 15 and 16 of of the written statement Exh.2.
10. It is the contention of plaintiffs that when the defendants
admitted their possession in the suit premises no further proof is
required for passing the interim order of injunction against the
defendants. On the other hand, Learned Counsel for the defendants
first of all raised the question that, whether plaintiff No. 2 has right to
create any sub-tenancy right and if yes then the question of possession
of plaintiff No. 1 will arise. It is further submitted by the defendant’s
Counsel that the entire documents on which plaintiffs have relied upon
not shown the number of suit premises as 67-B but each and every
document discloses the number of suit premises as 67/FN4, the same
way Agreement Dtd. 13.06.1989 and 03.01.2018 as well as copy of
ration card and various copies of light bills not disclosed the suit
premises as a Room No. 67-B. It is, thus, the grievance of defendants
that when the plaintiffs have not come with the clean hands before the
Court while claiming the equitable relief of injunction certainly they
becomes dis-entitled for the temporary injunction asked against the
defendants.
11. I have gone through the documents filed by the plaintiffs
and which are referred by the defendants, it is the fact that rent receipts
Exh. A shows the tenants name Bhawoo Bala and Ananda Kesoo
(husband of plaintiff No. 2). Similarly, Agreement Dtd. 13.06.1989 and
tenancy agreement Dtd. 03.01.2018 shows the same fact that the
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number of suit premises is mentioned as Room No. 67 and not Room
No. 67-B. Further, the affidavit executed by the plaintiff No. 2 in favour
of plaintiff No. 1 and Consent Affidavit Dtd. 13.06.1989, all reflects the
same number of suit premises as Room No. 67 but copy of ration card
and light bills shows that the name of plaintiff No. 1 is mutated for the
suit premises and Room No. 67-B is mentioned therein. Therefore,
submissions made on behalf of both the parties if considered, it is
apparent that in the plaint itself, rent receipts Agreement Dtd.
13.06.1989 and 03.01.2018 all shows the suit premises as Room
No.67/FN4, however ration card and light bills speaks about Room
No.67-B. So, now it becomes necessary to see that as per the plaintiffs
contention, whether defendants have admitted the fact that plaintiff
No.1 is in possession of suit premises or not ? Firstly, in paragraph
Nos.1 to 14 defendants have denied the fact of possession of plaintiff
No. 1 over the suit premises and specifically contended that defendant
No. 3 is in use, occupation and enjoyment of the suit premises and used
to pay the rent and other charges. However, in paragraph No. 15 it is
stated by the defendants that “on the contrary plaintiff No. 1 taking the
law in hands have forcibly grabbed the possession of the suit premises
and managed to intrude in illegal possession of the suit premises”. Also
in paragraph No. 16 it is stated that “the plaintiffs have approached this
Hon’ble Court with unclean hands and after taking forcible possession
of the suit premises has filed the present suit so as to ousted the
defendants right in respect of the suit premises”.
12. The possession of plaintiff No. 1 in the suit premises is
concerned, plaintiff No. 2 by executing Agreement Dtd. 13.06.1989 put
him in the possession of suit premises and consequently executed one
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affidavit on the same day with consent affidavit of her son namely Vijay
Ananda Jagtap and daughter Radhutai Sambhaji Sawant. No doubt,
there are variance in the number of suit premises, in some documents it
has mentioned only Room No. 67/FN4 and rest of the documents where
it has mentioned Room No.67B. This discrepancy in respect of the room
number of the suit premises does not bear much significance, because
as pointed out by the plaintiffs, in written statement, defendants have
clearly admitted that plaintiff No. 1 is in possession of the suit premises
and by taking the law in hands, he forcibly obtained the same. Whether
the possession of plaintiff No. 1 is legal or illegal, I think that cannot be
decided at the initial stage of matter, because plaintiffs have claimed the
main relief of perpetual injunction against defendants and that time it
will become incumbent on the part of Court that to consider the fact of
legal or illegal possession. At this juncture, by the admissions of
defendants in written statement, it came on record that plaintiff No.1 is
in possession of suit premises and used to pay rent and other charges to
concerned authorities. With this factual background, I come to the
conclusion that plaintiff No. 1 is in use, occupation and enjoyment of
the suit premises and paying the rent and requisite charges, so,
obviously prima facie case, balance of convenience is in favour of
plaintiffs and because of possession over the suit premises if the
temporary injunction is refused, certainly irreparable loss will be caused
to them. In the result, accordingly I answered the point No. 1 to 3 in
affirmative.
13. Point No. 4 :- In view of above said discussion, observations and
findings recorded by me for point No. 1 to 3, the notice of motion
deserves to be allowed so following order is passed:-
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ORDER
1. Notice of Motion No. 2073 of 2019 is hereby made absolute in
terms of prayer clause (a) of the motion.
2. The defendants or their servants, agents or any other person
claiming through them are hereby temporarily restrained from
causing any type of disturbance or obstructions to plaintiffs’ use,
occupation and possession of the suit premises till the final
hearing of the suit.
3. Notice of Motion No. 2073 of 2019 is accordingly disposed of.
Date : 19.09.2024 (R. S. Aradhye)
Judge,
City Civil Court,
Dictated on : 19/09/2024 Mumbai
Transcribed on : 20/09/2024
Signed on : 24/09/2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
24.09.2024 at 5.50 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI R. S. Aradhye
(C.R.No.62)
Date of pronouncement of Order 19/09/2024
Order signed by P.O. on 24/09/2024
Order uploaded on 24/09/2024
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