Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: CNR NO. MHCC01-006917-2019
Exh.15
Lodged on : 06.07.2019
Registered on : 12.07.2019
Decided on : 15.01.2025
Duration : 05Y 06M 09D
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
SUIT NO.2008 OF 2019
Mrs. Lata W/o. Narendra Canser
Age: 51 years,
In respect of the premises being Shop no.2
Situated at Vivekanand CHS Ltd, T.H.
Kataria Road, Mahim West, Mumbai 400 016. ...Plaintiff.
Versus
Vivekanand CHS Ltd.,
A society incorporated under the provision
of Maharashtra Co-operative Societies Act
Having its office situated at
T.H. Kataria Marg, Mahim, Mumbai 400 016. ...Defendants.
Appearance
Adv.Ashok M. Saraogi and Adv. Neha Pandey, for plaintiff.
Defendant ex-parte.
CORAM : HIS HONOUR JUDGE
R.V. Bhakta
(COURT No.: 2)
DATED : 15th January, 2025.
J U D G M E N T
1. This is the suit for the perpetual injunction.
2. Averments of the plaintiff in short as under :-
The plaintiff is the owner of the suit property i.e., Shop No.2
situated at Vivekanand CHS Ltd., T. H. Kataria road, Mahim West,
Mumbai 400 016, specifically mentioned in the para 1 of the plaint
(hereinafter called as suit property). The defendant is the co-operative
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Judgment .. 2 ..
Housing Society. Plaintiff added that she has purchased the suit
property for a valuable consideration. After that the defendant society
has also accepted her as a member of the society. However, despite of
this the defendant society is restraining plaintiff to provide basic
amenities like water, drainage facility etc., despite of several request
made by the plaintiff. Not only this the Dy. Registrar of the Co-
operative Society has also directed the defendant society to provide the
above said amenities to the plaintiff but despite of this the defendant
are not complying the order.
3. It is further case of the plaintiff that the plaintiff has handed over
her shop to one Mr. Akshay Arun Jagtap on leave and license basis and
he was carrying his business from the suit property. However, the
defendant society was restrained him to run the business and directed
the watchman to restrain the licensee of the plaintiff to enter into the
society building. Therefore, the licensee of the plaintiff has left the suit
premises by terminated the leave and license agreement. Plaintiff
added that her bread and butter is depend on the income of the suit
shop. As a defendant society is restraining the plaintiff from giving said
shop on leave and license basis. The plaintiff is facing financial
problem. As a result, the plaintiff has filed the suit against the
defendant. Restraining the defendant society or its members from
obstructing the plaintiff or any other person on behalf of the plaintiff to
run business in the suit property.
4. The defendant society has appeared before this Court but failed
to file written statement. Hence, suit proceed, no written statement
here in against the defendant.
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Judgment .. 3 ..
5. Following points arise for my determination and I have recorded
my findings against them for the reasons there under :-
Sr.
No.
POINTS FINDINGS
1. Whether the plaintiff has succeeded to
prove that she is the owner of the suit
property and defendants are obstructing
the plaintiff from using the suit
property ? In the affirmative.
2. What order and decree ? As per final order.
REASONS :-
6. In order to prove her case the plaintiff has lead her evidence by
way of affidavit at Exh.3. In support of this she has also relied on number
of documents i.e., Certified copy of court order dated 05.11.2022 at
Exh.5, Agreement dated 26.11.2018 at Exh.6, Share certificate at Exh.7,
Copy of bill dated 09.12.2022 at Exh.8, Copy of Letter dated
30.01.2017 at Exh.9, Copy of Letter dated 09.03.2017 at Exh.10, Copy
of Letter dated 30.03.2017 at Exh.11, Copy of letter dated 19.01.2019
at Exh.12.
7. As stated supra, in this suit the defendant society has failed to
file its written statement. It can be presumed that the defendant society
has accepted the case of the plaintiff and that is why the defendant
society has not filed its written statement. However, despite of this, this
Court has to decide this suit on its own merit.
8. So far as the aspect of the merit is concerned the evidence of the
plaintiff involved that the plaintiff is the owner of the suit property i.e.,
Shop No.2 situated at Vivekanand CHS Ltd., T. H. Kataria road, Mahim
West, Mumbai 400 016. The defendant is the co-operative Housing
Society. Plaintiff added that she has purchased the suit property for a
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Judgment .. 4 ..
valuable consideration. After that the defendant society has also
accepted her as a member of the society. However, despite of this the
defendant society is restraining plaintiff to provide basic amenities like
water, drainage facility etc., despite of this several request made by the
plaintiff. Not only this the Dy. Registrar of the Co-operative Society has
also directed the defendant society to provide the above said amenities
to the plaintiff but despite of this the defendants are not complying the
order.
9. It has further come in to the evidence of plaintiff that she had
given her shop to one Mr. Akshay Arun Jagtap on leave and license
basis and accordingly he was carrying his business from the suit
property. However, the defendant society was not allowed him to run
the business and directed the watchman to restrain the licensee of the
plaintiff to enter into the society building. Therefore, the licensee of
the plaintiff has left the suit premises by terminated the leave and
license agreement. Plaintiff added that her bread and butter is depend
on the income of the suit shop. As a defendant society is restraining the
plaintiff from giving said shop on leave and license basis. The plaintiff
is facing financial problem. As a result, the plaintiff has filed the suit
against the defendant. Restraining the defendant society or its
members from obstructing the plaintiff or any other person on behalf
of the plaintiff to run business in the suit property.
10. In order to prove that the plaintiff is the owner of the suit
property. The plaintiff has produced the agreement share certificate
etc., before this Court. These documents clearly shows that the plaintiff
is the owner of the suit property. As stated supra the defendants have
failed to file their written statement and remain absent before this
Court after their appearance. Therefore, the evidence of the plaintiff
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Judgment .. 5 ..
remained unchallenged. As a result, it can be very well said that the
plaintiff has succeeded to prove that the defendant society is illegally
restraining the plaintiff from using the suit property or running
business in it or through any person on behalf of her. Hence, the
plaintiff is entitled for the perpetual injunction. As a result, I proceed
to pass following order.
ORDER
1. Suit No.2008 of 2019 is decreed with costs.
2. Defendants society is hereby perpetually restrained from
obstructing plaintiff's peaceful possession over the suit property and
restraining the plaintiff or any other person on behalf of him from
running business in the suit property.
3. Decree be drawn accordingly.
(R.V. Bhakta)
City Civil Judge, Gr. Mumbai
Date :15.01.2025
Typed on : 18.01.2025
HHJ signed on : 18.01.2025
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Judgment .. 6 ..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATE 18.01.2025, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. R.V. Bhakta
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
15.01.2025
JUDGMENT/ORDER signed by P.O.
on
18.01.2025
JUDGMENT/ORDER uploaded on 18.01.2025
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