Full Order Text
Final Order 1 · 24 Aug 2021 · CNR MHCC010062352019
Order Details: Notice of Motion Pdf Text: ORDER ..1.. NM NO. 2270/2019 MHCC010062352019 IN THE CITY CIVIL COURT FOR GREATER MUMBAI NOTICE OF MOTION NO. 2270 OF 2019 IN S.C. SUIT NO. 2040 OF 2019 Mrs. Anita Anil Naik. Room No.402, D Wing, Ketan Building Shankeshwar CHS Ltd., A. G. Pawar Lane, Byculla, Mumbai 400027. …Plaintiff Versus 1. Mahesh Laxman Dhende. Residing at 402, D Wing, Ketan Building Shankeshwar CHS Ltd., A. G. Pawar Lane, Byculla, Mumbai 400027. 2. Chimanlal Pragji Shah. ...(Deleted as per order 303, D Wing, Ketan Building dated17.01.2020 in CS Shankeshwar CHS Ltd., A. G. Pawar Lane, No.1560/2019) Byculla, Mumbai 400027. 3. Rajaram Bhausaheb Dhende. Residing at 402, D Wing, Ketan Building Shankeshwar CHS Ltd., A. G. Pawar Lane, Byculla, Mumbai 400027. 4. Smt. Ratnamala Ramdas Dhende. Residing at 402, D Wing, Ketan Building Shankeshwar CHS Ltd., A. G. Pawar Lane, Byculla, Mumbai 400027. 5. Mangesh Laxman Dhende Residing at 402, D Wing, Ketan Building Shankeshwar CHS Ltd., A. G. Pawar Lane, Byculla, Mumbai 400027. … Defendants. -- 1 of 9 -- ORDER ..2.. NM NO. 2270/2019 Appearance Adv. S. J. Ghogare I/b Arvind Taral for the plaintiff. None for defendants. CORAM : HIS HONOUR JUDGE Sunil T. Soor. (COURT No.: 2) DATED : 24th August, 2021 ORAL ORDER Heard advocate for the plaintiff on notice of motion moved on behalf of the plaintiff for grant of temporary injunction to restrain defendant or anybody on their behalf from dispossessing the plaintiff from the suit premises i.e., Room No.402 admeasuring 180 Sq.fts situated in 'D' Wing, Shankeshwar CHS Ltd., A.G. Pawar Lane, Byculla, Mumbai - 400 027 without following due process of law. 2. Plaintiff's case is that defendant no.2 is a landlord of the suit premises. One Smt. Subhadra S. Dhende was the original tenant in the suit premises. She expired in the year 1999. Defendant no.1 and 3 to 5 are legal heirs of Subhadra S. Dhende. They alongwith their families were residing in the suit premises. 3. After demise of Smt. Subhadra S. Dhende, defendant no.3 to 5 surrendered tenancy rights of the suit premises in favour of defendant no.2 and removed their articles from the suit premises. However defendant no.1 intentionally kept some articles in the suit premises. Defendant no.1 used to visit the suit premises and abuse the plaintiff and her family members in filthy language without any reason. Hence on 14.01.2019, plaintiff lodged report against defendant no.1 in Byculla Police Station. -- 2 of 9 -- ORDER ..3.. NM NO. 2270/2019 4. By virtue of Transfer of Tenancy Agreement dated 23.05.2019, plaintiff obtained tenancy rights of the suit premises from defendant no.2. Plaintiff is residing in the suit premises alongwith her family members. Plaintiff is regularly paying rent to defendant no.2. On 23.05.2019, the defendant alongwith antisocial elements tried to dispossess the plaintiff from the suit premises and threatened to come back again and take forcible possession of the suit premises. Defendant no.3 being 'Karta' of joint family of defendant no.1,4 and 5 surrendered tenancy right of the suit premises in favour of defendant no.2/landlord. Hence defendant no.1 has no right in the suit premises. He is harassing the plaintiff by adopting different techniques. Under the above facts and circumstances, plaintiff filed the present suit for permanent injunction and claimed temporary injunction against the defendant by way of present notice of motion. 5. Defendant no.1 did not file reply hence notice of motion is proceeded without reply of defendant no.1. Defendant no.2 and 5 filed their reply and supported the case of plaintiff. However subsequently name of defendant no.2 is deleted as per order dated 17.01.2020 in Chamber Summons no.1560/2019 moved on behalf of the plaintiff. Perused the plaint, notice of motion alongwith affidavit and reply of defendant no.2 and 5. 6. Though the plaintiff claimed injunction against defendants but it appears that plaintiff is claiming temporary injunction against defendant no.1 only. Defendant no.1 who is the only contesting defendant is proceeded without reply. -- 3 of 9 -- ORDER ..4.. NM NO. 2270/2019 7. Grant of temporary injunction is a discretionary and equitable relief and governed by Order 39, Rule 1 of the Civil Procedure Code (CPC). As per order 39, Rule 1 of the C.P.C., for grant of temporary injunction, plaintiff has to prove by affidavit or otherwise that the defendant threatened to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to the suit premises. Thus first of all plaintiff has to prove her possession in the suit premises on the date of institution of the suit. Needless to say that for grant of temporary injunction, plaintiff has to make out a prima-facie case and show that balance of convenience lies in her favour and she will suffer irreparable loss in case temporary injunction is refused. 8. To prove possession in the suit premises, plaintiff filed on record copy of registered Agreement of Transfer of Tenancy dated 23.05.2019 executed by defendant no.2 in favour of the plaintiff, Rent Receipts issued in favour of the plaintiff from the month of January 2019 to May 2019, Letter of surrender of tenancy right of the suit premises by defendant no.3 to 5 in favour of defendant no.2, copy of report dated 14.01.2019 lodged by the plaintiff against defendant no.1 in Byculla Police Station, Adhar Card, Pan Card and Electricity bills. 9. It is not in dispute that Subhadra S. Dhende was the original tenant and defendant no.2 is landlord of the suit premises. Defendant no.1 and 3 to 5 are legal heirs of Subhadra S. Dhende. According to plaintiff, defendant no.1 and 3 to 5 were residing in the suit premises. Defendant no.3 to 5 surrendered tenancy right of the suit premises in favour of defendant no.2. -- 4 of 9 -- ORDER ..5.. NM NO. 2270/2019 10. Though from the perusal of documents filed on record on behalf of the plaintiff, it appears that after demise of Subhadra S. Dhende, defendant no.3 to 5 surrendered their tenancy rights in favour of defendant no.2/landlord and they vacated the suit premises but it does not appear that defendant no.1 surrendered tenancy rights and vacated the suit premises. It is also not the case of defendant no.2 and 3 to 5 that defendant no.1 vacated the suit premises. Plaintiff came with a case that defendant no.1 intentionally kept some articles in the suit premises. 11. From the perusal of para 12 and 13 of copy of the report dated 14.01.2019 (Exh. E of the plaint) lodged by the plaintiff against defendant no.1, it appears that defendant no.1 and his wife given threats, abused and tried to assault the plaintiff and also demanded illegal money for giving possession of the suit premises to the plaintiff. Plaintiff further alleges in the said report that defendant no.1 and his wife are not allowing the plaintiff to take possession of the suit premises. Under the circumstances, it is incumbent on the plaintiff to aver and prove when defendant no.1 vacated the suit premises and when defendant no.3 to 5 given possession of the suit premises to the plaintiff. However there is no pleading to this effect in the plaint. Defendant no.2 to 5 also did not clarify when defendant no.1 vacated the suit premises. 12. Pending present notice of motion, plaintiff moved Chamber Summons no. 1560/2019 for deleting name of defendant no.2 from the case. Defendant no.1 had filed reply to said chamber summons. Case of defendant no.1 as appears from his reply to said Chamber Summons is that defendant no.2 has not taken consent of all legal heirs of Subhadra -- 5 of 9 -- ORDER ..6.. NM NO. 2270/2019 S. Dhende. Defendant no.2 illegally issued rent receipts to the plaintiff and the plaintiff illegally transferred electricity bills in her name. Thus defendant no.1 denied possession of the plaintiff in the suit premises. 13. Address of the plaintiff and defendant no.1 is shown as the same i.e., Room No.402, D Wing, Shankeshwar CHS Ltd., A.G. Pawar Lane, Byculla, Mumbai 400 027 (the suit premises) in the plaint, present notice of motion and chamber summons. Plaintiff served copy of notice of motion on defendant no.1 by hand delivery on the address of the suit premises which falsifies the case of plaintiff that she is in possession of the suit premises. Address of defendant no.1 is the same till date. Further address of defendant no.3 to 5 are shown as the same as that of the suit premises. Suit premises is a room admeasuring 180 Sq. fts. Thus it is not believable that the plaintiff, defendant no.1 and defendant no.3 to 5 are residing in the suit premises jointly. 14. Plaintiff and defendant no.2 executed Agreement of Transfer of Tenancy on 23.05.2019 and on the same day, plaintiff shown the cause of action stating that the defendant alongwith antisocial elements tried to dispossess the plaintiff from the suit premises and threatened to come back again and take forcible possession of the suit premises. However plaintiff did not mention whether defendant no.1 or any other defendants tried to dispossess her from the suit premises. So also the plaintiff did not lodge the report of the incident dated 23.05.2019. It is not digestible that when defendant no.1 is in possession of the suit premises on 14.01.2019 as per the report of the plaintiff herself then how and when the plaintiff came in possession of the suit premises. -- 6 of 9 -- ORDER ..7.. NM NO. 2270/2019 15. Defendant no.3 to 5 received amount for surrendering tenancy rights of the suit premises in favour of defendant no.2. No cause of action is shown to file the suit against defendant no.2 to 5. It appears that plaintiff made defendant no.2 to 5 as party to the suit merely because they are supporting the case of plaintiff. Admittedly defendant no.1 did not receive any amount for surrendering tenancy rights or possession of the suit premises which is also evident from the report dated 14.01.2019 (Exh.E) of the plaintiff. 16. Thus it can be concluded that the plaintiff obtained documents on the address of the suit premises on the basis of Agreement of Transfer of Tenancy dated 23.05.2019 and shown cause of action of the same day only to file this suit against defendant no.1 which is clear from the fact that no cause of action is shown to file this suit against defendant no.2 to 5 and also from the fact that the plaintiff did not lodge report against any of defendants about threat of dispossession from the suit premises. The fact whether defendant no.3, Rajaram was 'Karta' of joint family of defendant no.1,4 and 5, and authorized to surrender tenancy rights of the suit premises in favour of defendant no.2 is a matter of trial. Even the plaintiff did not file on record affidavit of any independent person showing her possession in the suit premises. Plaintiff is contradicting her own pleading and documents. 17. Under the facts, circumstances and documentary evidence on the record, plaintiff failed to prove her possession in the suit premises by affidavit or otherwise which is a pre-condition for grant of temporary injunction. Thus plaintiff failed to prove prima facie case for grant of temporary injunction. Hence balance of convenience not lies in favour of the plaintiff and no irreparable loss would be cause to her if -- 7 of 9 -- ORDER ..8.. NM NO. 2270/2019 temporary injunction refused. In the result, plaintiff is not entitled for grant of temporary injunction. Hence this Court proceeds to pass following order. ORDER Notice of motion no. 2270/2019 is dismissed and disposed of. (Sunil T. Soor) Judge City Civil Court, Gr.Mumbai Date : 24.08.2021 Typed on : 24.08.2021 HHJ signed on : 24.08.2021 -- 8 of 9 -- ORDER ..9.. NM NO. 2270/2019 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.” DATED 24.08.2021, 2.30 p.m. UPLOAD DATE AND TIME Mrs. V. N. Rajgole. NAME OF STENOGRAPHER Name of the Judge (With Court Room No.) H.H.J. Shri. S. T. Soor C.R.No.02 Date of Pronouncement of JUDGMENT/ORDER 24.08.2021 JUDGMENT/ORDER signed by P.O. on 24.08.2021 JUDGMENT/ORDER uploaded on 24.08.2021 -- 9 of 9 --