Order 2

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.1826 OF 2018
IN
SUIT NO.1181 OF 2018
Mr. Abdul Matin s/o Mohd Raza ..Plaintiff
Versus
Mrs.Devi w/o Fakirchand Agrahi
and anr ..Defendants
Ld. advocate S.K.Dubey for the plaintiff
Ld.Adv. M.R.Desai for defendants
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 17/02/2020
ORAL ORDER
1. This notice of motion is interalia tendered by the
plaintiff seeking restoration of the possession of the
suit premises, restraining the defendants by order of
temporary injunction from entering in the suit
premises and appointing Court Receiver.
2. Heard.
3. The subject matter of the suit is premises is a room
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admeasuring 22x 25 sq. feet made of BM wall and
AC sheet roof situated at Plot No.34, under
Assessment No.3957/27/5A at Thakur Prasad
Compound, Khairani Road, Sakinaka, Mumbai.
(Hereinafter referred to as suit premises)
4. The contention of the plaintiff is that the suit
premises is in his exclusive possession since 1997.
He has acquired the suit premises on monthly rent
from Mr.Sharada Prasad Agrahari on monthly rent of
Rs.2500/. Again another agreement was arrived in
the year 1997 with Fakirchand Agrahari coowner of
Thakur Prasad Compound for mortgage and
thereafter for sometime plaintiff was accepted as a
tenant at monthly rent of Rs.1500/ and rent bill has
been issued from husband of defendant no.1 in
favour of plaintiff. In the year 1999, the suit
premises was transferred in favour of the plaintiff.
The plaintiff is carrying out the business in the name
and style of M/s. Marshall Batteries from the suit
premises. There are several documents to show that
the plaintiff is in possession of the suit premises. In
2009, defendant no.1 started harassing the plaintiff
and therefore plaintiff has filed written complaint. In
the intervening period of 6th and 7th April, 2018, the
defendants forcibly took possession of the suit
premises by breaking open the lock and they are
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residing by closing it from inside. The plaintiff
approached Sakinaka police station and lodged the
complaint. The plaintiff further submits that still
various goods worth Rs.9 lacs and documents are
lying in the suit premises. The police initiated
proceedings u/s. 145 of Cr.P.C. in respect of which
plaintiff got letter dated 11/04/2018 Therefore, the
plaintiff filed the suit for restoration of the possession
of the suit premises and this accompanying notice of
motion.
5. The contention of the defendants is that suit is not
maintainable. It is barred by limitation. The plaintiff
has suppressed material facts. The plaintiff himself is
not clear whether he is a tenant or mortgagee or a
licensee of the suit premises. Therefore the plaintiff
has failed to file the suit on the basis of title. The
plaintiff has not given inspection of the documents as
sought. The defendants also relied upon the
documents to show their address of the suit premises.
The agreement dated 25/12/1996 was unregistered
document entered into between son of defendant
no.1 and plaintiff and on the said document false and
bogus signature of son of defendant no.1 were
obtained. At that time the son of defendant no.1 was
minor. There are corrections in the document. Even
the leave and license agreement was not signed by
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son of defendant no.1. The mortgage deed was not
signed by Fakirchand Thakurprasad Agrahari the
husband of defendant no.1. The documents are fake.
Therefore defendant prayed for rejecting the notice
of motion.
6. On the basis of rival contentions of the parties,
following points arise for my determination and
findings to it are recorded for the reasons stated
hereinafter:
POINTS
(i) Whether the plaintiff has made out a prima
facie case in his favour?
(ii) Whether the needle of balance of convenience
tilt in favour of plaintiff?
(iii) To whom irreparable loss would be caused?
(iv) Whether the plaintiff has made out case for
appointment of the Court Receiver?
(v) What order?
FINDINGS
(i) In the negative
(ii) In the negative
(iii) To the defendants
(iv) In the negative
(v) As per final order.
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REASONS
Point Nos. 1 to 4
7. The plaintiff claims that plaintiff entered the suit
premises in the year 1997 by virtue of agreement
with Shardaprasad on 25/12/1996. The plaintiff
contended that plaintiff is in possession since 1997.
Initially it was acquired from one Shardaprasad on
monthly rent. The agreement is annexed which is
dated 25/12/1996. On perusal of the agreement it
reveals that it is a loan agreement by virtue of which
the plaintiff has taken possession of the suit
premises. Subsequently the agreement is dated
01/01/1997 which is a leave and license agreement
executed between Sarda Prasad Fakirchand Agrahari
and plaintiff which is dated 01/01/1997 in respect of
the suit premises. The plaintiff claims to be in
possession since 1997 but the document shows that
plaintiff is in possession by virtue of the said
agreement. The plaintiff was permitted to use the
suit premises for a period of four years. The plaintiff
has entered into mortgage deed with Fakirchand
Thakur Prasad Agrahari and simply mortgaged the
suit premises. The plaintiff has filed rent receipts of
various period to show his right as a tenant. He had
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also filed the affidavit of Fakirchand Agrahari who
has relinquished his right over the suit premises. On
indiamart website the address of the suit premises is
shown. Besides this, the plaintiff has filed the
telephone bill, accounts statement to show that he is
in possession of the suit premises. Even the shops
and establishment license and other documents show
the possession of the plaintiff over the suit premises.
The defendants denied the existence of these
documents. It is the stand of the defendants that at
the relevant time, Sarada Prasad was minor but
there is nothing on record to suggest the same, save
and accept the ration card which cannot be said to be
the proof of fact. The defendants have filed the
ration card showing the address of suit premises.
They have also filed the property card and also the
telephone bill. The defendants have filed various
other documents to demonstrate that they are in
possession. There are rival claims for possession by
the plaintiff and defendants. The agreement dated
25/12/1996 filed by the plaintiff shows the delivery
of the possession to the plaintiff, then within the
short span of 7 days there is a leave and license
agreement for a period of four years and again
possession was given to the plaintiff. Again three
months later there was mortgage deed and also the
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possession was delivered to the plaintiff. These three
documents within a short period of time executed by
Sarada Prasad itself create doubt at this stage. The
rent receipts are filed wherein the house number is
not visible. The contention of the plaintiff is that the
premises was taken on monthly rent of Rs.2500/ but
the two receipts filed which appears for a period of
three months which shows total rent for Rs.4500/
which ought to have been for Rs.7500/. This prima
facie create certain doubt. The telephone bill and
other documents show the address as “Thakur Prasad
Compd, Kherani Road, Opp. Jama Masjid, Sakinaka”.
It does not specifically mentioned the block
number/shop number. The accounts statement of
Sarswat bank shows the address as K8, Ansa
Industrial Estate, Ground floor, Sakinaka,
Andheri(E).
8. Even the shop and establishment license also does
not show the block number or shop number. It
shows the address as ‘Thakoor Prasad Comp. Kharani
Road, Sakinaka, Mumbai.” Therefore at this juncture,
it prima facie cannot be said that the suit premises
was the same premises mentioned in the documents.
There are successive documents within a span of
time, showing delivery of possession to the plaintiff
creates doubt. In that circumstances, it cannot be
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said that plaintiff has made out a strong prima facie
case for restoration of possession at this interim
stage. There are rivals claim. At this juncture, the
plaintiff has not made out case for restoration of
possession and needle of balance of convenience
does not tilt in favour of the plaintiff. The
documents produced by the plaintiff needs scrutiny
at the time of the evidence and therefore it would not
be proper to restore the possession at the interim
stage when prima facie the documents do not gives
the exact location of the premises. The defendants
are in possession of the suit premises and would
suffer irreparable loss if the possession is handed
over to the plaintiff. The plaintiff has not made out
case for appointment of court receiver. There is
nothing on record to show that property is being
damaged or waste by the defendants which warrants
for appointment of the court receiver. Hence, I
answer point nos.1 to 4 in the negative.
Point No.5
9. In view of above discussion and findings to point
nos.1 to 4, this notice of motion needs no
consideration. Hence, it is expedient to pass
following order:
ORDER
1. N/M No.1826/2018 stands rejected.
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2. Costs in the cause.
3. N/M No.1826/2018 is disposed off
accordingly.
17/02/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 17/02/2020
Typed on : 28/02/2020
Signed on : 11/06/2020
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