Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft NM (Suit 1942/19)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
ORDER BELOW DRAFT NOTICE OF MOTION
IN
S.C. SUIT NO. 1942/2019
1. Gulabrai Shamji Vaghani
2. Raghu Basvaraj Gowda ..Plaintiffs
V/s.
Rajmani Gayaprasad Verma ..Defendant
Appearance:
Adv. Mr.DA Barot for plaintiffs.
Adv. Mr. Pradeep Dubey for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 03.8.2019.
ORAL ORDER
1. This draft Notice of Motion (N/M) is submitted by plaintiffs
for seeking urgent relief of appointment of Court Receiver under Order
40 Rule 1 of CPC for taking possession of suit premises and directing
defendant to pay Rs.2500/ per month to the plaintiffs by way of mesne
profit/compensation for illegal and wrongful occupation and possession
of the suit premises during pendency of the suit, and perpetual/
temporary injunction against defendant from parting with the
possession of the suit premises or creating third party interest in the
same during pendency of suit. The draft N/M is supported by an
affidavit of Power of Attorney (POA) holder of plaintiff no.1 Chirag
Vaghani.
2. On 11.7.2019, by precipi Ld. Counsel for the plaintiffs has
moved this Court for passing adinterim order of protection of plaintiffs
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and prayed for urgent hearing of the matter regarding grant of interim
relief. He has served copy of the draft N/M on the defendant.
3. I have heard Ld. Adv. Mr. Barot for the plaintiffs and Ld.
Adv. Mr. Pradeep Dubey for the defendant on the point of grant of ad
interim protection to the plaintiff.
4. Ld. Counsel for the plaintiffs submitted that, he wants to
rely on the pleadings of the plaint while arguing on the point of ad
interim relief with reference to the draft N/M. He submitted that, Mr.
Bharat G. Vaghani is the Karta of HUF and Manager. He is landlord of
the building known as Parvati Bhuvan, 52/54, Old Hanuman Lane,
Mumbai 400 002; while plaintiff no.2 is the licensee in respect of
wooden cabin/ box having dimensions of height 4 ft X width 2 ft X
depth 1 ft., situated at the corner of building between shops no. 5 and 6
and stall, on the ground floor situated at Parvati Bhuvan, 52/54, old
Hanuman Lane, Mumbai2, which his called as suit premises.
5. Ld. Counsel for the plaintiffs further submitted that,
defendant is a tenant in respect of small premises admeasuring approx.
4 sq ft., having height of 7 ft. on the ground floor in between shops no.5
and 6 and wooden stall on the corner of Parvati Bhuvan, 52/54, old
Hanuman Lane, Mumbai2 and it is called as 'tenanted premises' on the
monthly rent of Rs.1200/.
6. Ld. Counsel for the plaintiff further argued that, the
tenanted premises were let out to defendant by a registered agreement
of the tenancy dated 21.10.2016 vide AnnexureA with the plaint.
However the defendant has illegally let out said tenanted premises to
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third person and therefore, the plaintiffs have filed one RAE Suit
No.1418/2018 in Small Causes Court at Mumbai against the defendant
and against third person. It is submitted that, the plaintiff no.1 has
allowed plaintiff no.2 to occupy the suit premises from 16.8.2018 till
16.7.2019 on leave and license basis as per writing dated 16.8.2018.
The Licensee has been granted permission to use and occupy the suit
premises and he has agreed for the same along with license fees of
Rs.250/ pm. Copy of agreement between the plaintiffs no.1 & 2 is
annexed with the plaint as Annexure 'B' .
7. The main grievance of the plaintiffs is that, on 2.2.2019,
defendant without consent of the plaintiffs had illegally and unlawfully
broke open lock of the suit premises and removed sandwich material
and other articles kept inside wee stolen by defendant from the
possession of plaintiff no.2, who had intimated the above fact to
plaintiff no.1 and had lodged a complaint regarding his forceful
dispossession by defendant. Copy of that letter/ complaint is marked as
Annexure 'C'. Accordingly, police complaint lodged against the
defendant at LT Marg police station regarding forceful and illegal
dispossession of the plaintiff no.2 from the suit premises on 9.2.2019. It
is submitted that, LT Marg police have recored statement of the plaintiff
no.2 on 9.3.2019 and also recorded statement of Chirag Vaghani, POA
of the plaintiff no.1. Copies of their statements are annexed with plaint
as Annexure 'D'. The plaintiff waited for the legal action to be taken by
LT Marg police against defendants till 4.2.2019. LT Marg police had
called the defendant for investigation purpose but defendant had sought
time as his advocate was not available and assured the police to
produce necessary documents to show his legal possession in the suit
premises. Thereafter, Ld. Counsel for the defendant assured the LT
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Marg police to furnish the documents but documents have not been
furnished within reasonable time. The defendant claimed before the LT
marg police station that he is tenant of the suit premises and has
documentary evidence in that regard.
8. Ld. Counsel for the plaintiff specifically argued that,
dispossession of the plaintiff no.2 from the suit premises by the
defendant is very much illegal and interference of the court is called for
to protect the interest of the plaintiffs during pendency of the suit. It is
the case of the plaintiffs that, vide letter dated 10.10.2018, the plaintiff
no.1 had terminated tenancy of the defendant on the ground that he
had illegally sublet the tenanted premises to third party. The
defendant through his advocate has filed reply dated 26.10.2018 to the
notice given by the plaintiff and admitted that, the defendant is tenant
of one stall, however denied the fact of subletting of the tenanted
premises to third party. Letter given by the advocate for the plaintiff
dated 10.10.2018 and reply given by the advocate for the defendant to
the said notice dated 26.10.2018 are annexed with the plaint as
AnnexuresE.
9. It is submitted on behalf of the plaintiff that, defendant has
filed WS in RAE Suit No.1418/18 pending before Court of Small
Causes, Mumbai on 4.2.2019 after taking forceful possession of the suit
premises and for the first time alleged that he is tenant of the stall and
wooden stall i.e. suit premises. Therefore, it is clear that, the defendant
is tenant of the different premises which are called as “tenanted
premises”, while suit premises are different and defendant is unlawfully
occupying the same by dispossessing the plaintiff no.2. Under the
above circumstances, Ld. Counsel for the plaintiff has argued that, it is
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most essential in the present case to grant interim protection to the
plaintiff during pendency of the suit and interim reliefs in terms of
prayers clause (a),(b) and (c) may be granted and necessary orders be
passed.
10. Ld. Counsel for the plaintiff has placed reliance on the list
of documents filed with plaint vide AnnexuresA to F, which consist of
agreement of tenancy dated 21.10.2016, written understanding
between plaintiff no.1 and 2 dated 16.8.2018, plaintiff no.2's letter/
complaint dated 9.2.2019, statement of the plaintiff recorded at LT
Marg police station, letter of advocate of the plaintiff dated 10.10.2018
and letter of reply given by the advocate of the defendant dated
26.10.2018 and colour xerox copy of photographs vide Ex.F.
11. Ld. Counsel for the defendant sought time to file reply to
the draft N/M and prayed for grant of adjournment. But, because the Ld
Counsel for the plaintiff insisted for arguing the matter on the point of
grant of adinterim protection to the plaintiff, he argued the matter and
opposed grant of interim relief on behalf of the defendant, without
filing reply affidavit.
12. Ld. Adv.Mr. Dubey for the defendant submitted that, the
plaintiff's claim in the suit is not legal, proper and correct and it is not
supported by prima facie documentary evidence on record. In the
course of argument, he placed reliance on the reply given to the notice
issued by Counsel for the plaintiff dated 26.10.2018. He argued that,
the defendant is a tenant of the one stall situated on Gr. Floor, between
shops no.5 and 6 at the corner of Parvati Bhuvan, 52/54, Old Hanuman
Lane, Mumbai 400 002. The defendant has denied that he has sublet
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the tenanted premises to the third party and more particularly to one
Dilip @ Pappu and Manmaatgiri @ Munna. It is submitted that, they are
employees of defendant and working as helpers and defendant is paying
them monthly salary. It is further submitted that, on account of cataract
surgery of his right eye and due that medical treatment he was not able
to conduct his business properly and was advised complete bedrest by
the doctor. In his absence, the employees mentioned above, used to
look after his stall.
13. Ld. Counsel for the defendant has specifically contended
that, the plaintiff is not entitled for any adinterim relief at this stage
when the defendant has not filed his reply or WS before the Court and
there are disputed facts to be adjudicated by the court during trial of
the case and therefore, no order can be passed at interim stage at the
behest of the plaintiff.
14. Ld. Counsel for the defendant argued that, sometime in the
month of March, 2018, defendant had met the plaintiff no.1 at his
residence at Santacruz along with his nephew Krishnachandra and one
of his friends Anand Sharma and sought oral permission from the
plaintiff no.1 by paying Rs.12000/ in cash as demanded by the plaintiff
no.1 for granting sanction for converting use of the premises from
Belpuri Juice Centre to Pan Bidi shop. The defendant has specifically
denied that he has illegally constructed the wooden box below the stall
without permission of the plaintiffs no.1 and 2 or concerned authorities.
He submitted that, such boxes were there since inception of the tenancy
of the defendant and even prior to that. Defendant had informed the
plaintiff no.1 that, his business of Bhelpuri and Juice Centre was not
running very well and fruitful, therefore he had decided to change the
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nature of his business and was assured by the plaintiff no.1 to grant
approval and sanction for the same for consideration as stated above
and accordingly, above arrangement was made between the plaintiff
no.1 and defendant. Under the above circumstances, Ld. Counsel for
the defendant argued that, no exceptional circumstances or urgency are
made out by the plaintiffs for granting adinterim protection as prayed.
Hence, interim protection/ relief is liable to be denied.
15. I have gone through the prima facie material on record and
more particularly pleadings of the plaint and documents filed with the
plaint as per list AnnexuresA to F. I have also taken into consideration
oral submissions made by Ld. Counsels for both sides.
16. It can be seen that, the suit premises and tenanted premises
are different though located in the same building, as per description
given in the plaint. The plaintiffs have alleged that, the defendant has
forcefully and illegally dispossessed the plaintiff no.2 from the suit
premises on 9.2.2019 and in that regard, complaint has been lodged by
plaintiff no.1 at LT Marg police station and it has been investigated. The
plaintiff no.1 has also filed a suit for eviction against defendant in the
court of small Causes, Mumbai bearing RAE Suit No. 1418/18. It is
highly contested. In the said suit, defendant has filed WS on 4.2.2019
and contended for the first time that, he is tenant of the stall and
wooden stall i.e. suit premises. The dispute between the plaintiff no.1
and defendant is relating to the registered tenancy agreement dated
21.10.2016.
17. According to the Ld Counsel for the plaintiff, plaintiff no.1
has allowed plaintiff no.2 to use the suit premises on leave and license
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basis from 10.8.2018 to 16.7.2019 for consideration of monthly license
fees of Rs.250/ and accordingly, he was occupying the suit premises.
On the other hand, Ld. Counsel for the defendant has argued that, in
fact, plaintiff no.1 has allowed him to convert his business from
Bhelpuri & Juice Centre to Pan Bidi shop sometime in the month of
March, 2018 for consideration of Rs.12,000/ and also agreed to give
necessary sanction/ approval for the said conversion of the use of
premises. Accordingly, defendant has paid Rs.12,000/ to the plaintiff
no.1 in cash in presence of witnesses at his residence namely his
nephew Krishnachandra and his friend Anand Sharma. So, it is clear
that, there are disputed questions of facts which are required to be
adjudicated by the court by allowing parties to lead documentary as
well as oral evidence.
18. Under the above circumstances, I am of the opinion that,
the plaintiffs have failed to make out any exceptional circumstances or
cause of urgency to pass adinterim order of protection/ relief to the
plaintiff, as prayed in the N/M. It can also be seen that, even as per case
of the plaintiffs, the suit premises have been given by plaintiff no.1 to
plaintiff no.2 on leave and license basis as per written understanding
dated 16.8.2018 for a period of 11 months till 16.7.2019 and said
period is also now over. Under the above circumstances, I proceed to
pass following order :
ORDER
1. Interim relief/ protection as prayed by the plaintiffs
in the draft N/M is hereby refused.
2. Plaintiffs are granted leave to register the draft N/M
and serve copy on the defendant if not already
served and defendant shall file his affidavit in reply
to the draft N/M on next date.
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3. Keep the matter for filing original draft N/M by
plaintiffs and reply affidavit by the defendant on
next date.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 3.8.2019 Gr. Bombay (C.R. 03)
Dictated on : 3.8.2019
Typed on : 3.8.2019
draft given on 3.8.2019
Signed by HHJ on : 5.8.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 5.8.19
TIME: 5.40 pm (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 3.8.19
Judgment/ order signed by P.O on 5.8.19
Judgment/ order uploaded on 5.8.19
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