Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.2528 OF 2019
IN
S.C.SUIT NO.1608 OF 2019
(CNR NO.:MHCC01000694/2019)
Mr.Haradhan Madhusudan Das ... Plaintiff
Versus
1. Mr.Chanchal Haradhan Das,
2. Mrs.Sunaina Chanchal Das, ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 3rd OCTOBER, 2020
Mr.P.M.Bhat, ld. adv. for plaintiff.
None for defendants.
O R D E R
1. This Notice of Motion is filed by plaintiff for temporary
injunction for order restraining defendants or any person claiming
through them from entering upon, occupying, staying over in suit
premises i.e. Room no.5, 2nd floor, Nemani Building no.4, Bhoiwada,
Bhuleshwar Road, Mumbai02. Plaintiff has filed his affidavit in support
of notice of motion contending that he is intending to rely upon the
contentions raised in the plaint. It is further contended that plaintiff is
tenant in use, occupation and possession of suit premises. His son and
daughter i.e. defendants have forcibly entered in suit premises by
lodging false complaint against plaintiff and under threats of getting
arrested plaintiff by police. It is contended that defendants are not
allowing plaintiff to use suit premises even though defendnats have no
right of any nature in suit premises.
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2. As mentioned in the plaint, plaintiff is senior citizen and he
is tenant in use, occupation and possession of suit premises. Copy of
rent receipt of suit premises is annexed to plaint as Exh.A. It is
contended that suit premises is being used by plaintiff for his business
since 1973 as Silversmith and Goldsmith. Plaintiff has obtained suit
premises on tenancy basis. Electricity and telephone bills in respect of
suit premises stand in the name of plaintiff. Copies of telephone and
electricity bills of suit premises are annexed to the plaint as Exhs.B and
C. Plaintiff has acquired shops and establishment license in respect of
his business which is being carried out by him in suit premises. Copy of
said license is annexed to the plaint as Exh.D. Plaintiff is member of
Maharashtra labour Welfare Board and notice dated 16/12/2006 issued
by said Board to plaintiff is received by plaintiff at suit premises. Copy
of said notice is annexed to the plaint as Exh.E.
3. It is contended that defendant no.1 is the only son of
plaintiff and defendant no.2 is the wife of defendant no.1 i.e. she is
daughterinlaw of plaintiff. Defendant no.1 used to assist the plaintiff
in plaintiff's work as Silversmith and Goldsmith. Plaintiff had trained
defendant no.1 in said business. Since plaintiff's residential premises is
hardly of 200 sq.ft. Plaintiff had acquired additional premises on
tenancy basis in the name of defendant no.1, in the year, about 2006
and said premises is in Sukany Niwas Building situated at Jagannath
Shankarsheth Road, Mumbai400 002, so that defendant no.1 can have
separate room and privacy for him and his family after his marriage.
Copy of rent receipt of said premises acquired by plaintiff in the name
of defendant no.1 is annexed to the plaint as Exh.F. Plaintiff had also
acquired one ownership flat in the name of defendant no.1 at Bhyindar
in the year, 2012. It is contended that defendant no.1 got married with
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defendant o.2 on 13/12/2013. Plaintiff has celebrated said marriage.
After marriage defendants initially started residing with plaintiff and his
wife. However, plaintiff noticed that behaviour of defendant no.2 was
uncultured and insulting. Therefore, plaintiff asked defendant nos.1
and 2 to stay separately in tenanted premises in Sukany Niwas building
at Jagannath Shankarshet Road, Mumbai. Even while staying
separately defendants used to visit plaintiff at his residence. Whenever
defendants used to visit plaintiff and his wife, both the defendants
invariably used to demand transfer of rights of suit premises in the
name of defendant no.2. When plaintiff declined to do so, defendants
picked up serious quarrels with plaintiff and his wife and in rage of
anger defendants used to threaten plaintiff and his wife of serious
consequences. Defendants also used to threaten plaintiff and his wife
that they will have to face criminal complaint. Thereupon, plaintiff and
his wife asked defendants not to come to plaintiff's residential premises.
4. It is contended that in or about January, 2019, defendant
no.1 disposed off the tenanted premises acquired by plaintiff for
defendant no.1 in Sukanya Niwas building and defendant no.1 also has
disposed off Bhynder flat in the year, 2018 without informing plaintiff.
Thereafter, defendants started staying at different places on leave and
license. In the beginning of November, 2018 defendants forcibly
entered in suit premises and they started residing in suit premises
without plaintiff's consent and wish. That time plaintiff asked
defendants to vacate suit premises, however they threatened that if
plaintiff will try to oust them from suit premises, plaintiff would got
arrested on the basis of false complaint of defendant no.2. Thus,
plaintiff was prevented from occupying and using suit premises for his
business and plaintiff has been rendered unemployed without any
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means. It is alleged that defendant no.2 put her threat in action by
lodging false complaint on 13/12/2018 with police station and in said
complaint defendant no.2 falsely alleged that plaintiff had pulled her
hair and touched her inappropriately. Copy of said complaint is
annexed to the plaint as Exh.G. In said complaint defendant no.2 has
admitted that she is occupying suit premises since prior to two months
of filing said complaint. It is contended that on account of said false
complaint plaintiff was repeatedly called by police for investigation and
he is mentally harassed on account of false complaint lodged by
defendant no.2 at the instance of defendant no.1 with a view to prevent
plaintiff from entering, occupying and using suit premises. The
Investigating Officer after making thorough inquiry with neighbouring
tenants and after viewing the CCTV footage of alleged incident came to
the conclusion that said complaint lodged by defendant no.2 is false.
5. It is contended that the files containing important papers,
bills regarding plaintiff's transactions are lying in suit premises.
Further 350 grams gold belonging to plaintiff's customers and 12
carrots of diamonds were also kept by plaintiff in suit premises when
defendants forcibly entered the suit premises and refused to move out
of suit premises. It is contended that defendants have no right in suit
premises which absolutely belongs to plaintiff. The defendant no.1
being son of plaintiff was only allowed to assist plaintiff in his business
without having any independent right in suit premises or any part
thereof. It is contended that suit premises is the only place of plaintiff's
business and only source of plaintiff's livelihood along with his wife.
Defendants are occupying suit premises for their residence and they are
preventing plaintiff from using and occupying suit premises for
plaintiff's business by threatening plaintiff to implicate him in false
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police case and as such defendants have jeopardised, plaintiff's tenancy
right in respect of suit premises which has been let out to the plaintiff
for commercial use. Defendant no.1 is family member of plaintiff, by
virtue of his birth in the family, however defendant no.1 has no legal
right to occupy suit premises against the wishes of plaintiff. In such
circumstances, according to plaintiff he is entitled to the reliefs claimed
in plaint as well as in notice of motion.
6. Defendant no.1 has filed his affidavit of reply to the notice
of motion for himself and defendant no.2. It is contended that plaintiff
has filed the suit with the intention of harassing defendants and to give
counterblast to the complaint lodged on behalf of defendants against
plaintiff. Plaintiff has suppressed true facts from this Court. Plaintiff
has not come before the Court with clean hands. Therefore, plaintiff is
not entitled to any reliefs. It is contended that in Vasudeo Building
there are two rooms bearing Room nos.6 & 7 which are in the name of
plaintiff and another room in the name of plaintiff's wife. Room no.6
was taken in the name of plaintiff and defendant no.1 and thereafter
room no.7 was also obtained. Plaintiff's mother is housewife. It is
contended that suit premises is tenanted premises and suit is related to
tenanted premises, hence this Court has no jurisdiction to entertain the
suit. It is contended that plaintiff has sought eviction of defendants
without any prayer in the plaint and without paying proper Court fees.
It is contended that defendants are just trespassers liable to be evicted
from suit premises and under the guise of notice of motion plaintiff is
trying to obtain decree of eviction against defendants, hence reliefs
claimed by the plaintiff cannot be granted. It is contended that negative
declaration sought by plaintiff cannot be granted. It is contended that
defendant no.1 has married sister namely Sumitra Adak. Plaintiff was
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born and brought up at Room Nos.6 and 7 referred above and in the
year 2013 when he got married while he was staying in those room. It
is contended that marriage of defendant no.1 was arranged marriage
and his wife was selected by plaintiff, his wife and daughter. After
marriage defendant no.1 was residing exclusively with his wife at Room
no.7 and plaintiff with his wife was residing in Room no.6, being joint
family HUF. Defendant no.1 has Ration Card showing names of all
family members and their address at Room no.6 from Vasudeo Building.
Defendant no.1 has various documents like Election Commission Card,
Aadhar Card, PAN Card, Bank Passbook, Income Tax details etc.
showing address of defendant no.1 at Room no.6 Vasudeo Building.
Defendant no.1 has studied up till 12th Std. and after passing 10th std.
Examination, defendant no.1 started assisting plaintiff at suit premises.
Since, 1999 defendant no.1 is assisting in the business of his father at
suit premises, however since 2015 plaintiff is not regularly attending
the business of suit premises due to plaintiff's poor health as plaintiff is
suffering from Diabetis and Blood Pressure. It is contended that there
was no major dispute between plaintiff and defendant no.1 till the
middle of 2018. Plaintiff, his wife along with both defendants were
jointly residing in Room nos.6 and 7 referred above and plaintiff and
defendant no.1 were jointly doing the business at suit premises.
Defendant no.1 full time is involved in business at suit premises. Flat at
Bhynder was purchased in the year, 2010 in the name of defendant
no,1 however same was never used for residence of defendants and
plaintiff with his wife. Said flat was continuously given on leave and
license till 2018 when it was sold. The income derived out of license
fees was used for meeting the needs of joint family. The defendants
used to manage joint family with plaintiff.
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7. It is contended that another premises at Sukanya Nwas
building was obtained on tenancy and it was non residential premises.
Said premises was obtained in 2004 by plaintiff in the name of
defendant no.1. Said premises was given since beginning on leave and
license basis and it was never used for business. The income of license
fees was used for meeting family expenses. As such defendant no.1 was
residing with his parents along with his wife at Vasudeo building, hence
according to defendant no.1 plaintiff and defendant no.1 are joint
family members and they are running the business jointly. As relations
between plaintiff and defendant no.1 were good and cordial, the
amount received by selling flat at Bhynder was kept with plaintiff as
joint family. It is contended that defendant no.1 was residing with his
parents after the flat at Bhynder and tenanted premises at Sukanya
Niwas building was sold and consideration therefrom was entrusted to
plaintiff, noticeable change was seen in behavour of the plaintiff. It is
contended that root cause of the dispute was that since 2013 defendant
no.1 is childless. It is alleged that parents of defendant no.1 on so many
times asked defendant no.1 to give divorce to defendant no.2 as she is
unable to bear any children and as such parents of defendant no.1
wanted that defendant no.1 should abandon his wife and he should get
remarried so that there can be child in the family. It is contended that
defendant no.1 refused above suggestion of parents saying that he
cannot give divorce to his wife and therefore, parents of defendant no.1
turned against him and they are supporting sister and brother in law of
defendant no.1.
8. It is alleged that all consideration amounts received by
defendant no.1 are paid to plaintiff and therefore, plaintiff planned to
oust defendants from room no.7 Vasudeo Building. The Clothes of
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defendants and various various jewelery and documents and furniture
were lying in room no.7 Vasudeo building. It is alleged that on
28/10/2018 at 4.00 p.m. when defendant no.1 went to his residence he
foudnt hat lock was put up on room no.7 Vasudeo Building by removing
the lock which was put up by defendant no.1 Said another lock was put
up by plaintiff and further plaintiff has collected 25 persons and
restrained defendants from entering suit premises. It is contended that
defendants were told by plaintiff that henceforth defendants will not be
allowed to reside in Room no.7, Vasudeo building and they are asked
to find out any other premises. Due to it defendant no.1 was shocked
since defendant no.1 was in use, occupation and possession of said
room as member of HUF. It is alleged that plaintiff obtained sale
proceedings of Rs.16,00,000/ of Bhynder flat and said proceeds of
about Rs.12,00,000/ of the premises from Sukanya Niwas building.
9. It is denied that plaintiff is in possession of suit premises.
It is contended that defendants are in possession of suit premises and
defendant no.1 is involved in the business from 1999 and more actively
since 2005 being member of the HUF. The defendant no.1 has been
mostly contributing the rent even though suit premises is in the name of
plaintiff. Defendant no.1 has paid the rent for the period between 2016
to 2018 and he is possessing original rent receipts issued by landlord.
Even otherwise contribution of defendant no.1 towards rent is from
19992000 and the reason was that business was called joint family
business. Since, 2005 defendant no.1 is actively involved in the
business at suit premises plaintiff used to come hours or two at the
place of business and plaintiff used to go away after receiving the
money. It is contended that there was common residence and business
of plaintiff and defendant no.1, hence name of defendant appearing in
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Ration Card showing their address along with parents of defendant
no.1. It is contended that electricity bill of suit premises since 2017
standing in the name of defendant no.1. It is admitted that defendant
no.1 is the only son of plaintiff and hence, he has love and affection for
plaintiff and mother of defendant no.1. For that reasons defendant
no.1 left his studies after passing of 12th standard in the year, 2000 and
defendant no.1 has become right hand of plaintiff in carrying out day
today business. After 2006, defendant no.1 carried out business so that
plaintiff can have the rest as plaintiff has crossed the age of 50 years. It
is admitted that marriage of defendant no.1 was settled by plaintiff and
defendant no.2 was selected by parents and sisters of plaintiff. It is
denied that defendant no.2 was uncultured and she was insulting family
members. It is alleged that till 2018 everything was fine and when
plaintiff received the money of the sale proceeds of the premises at
Bhynder and Sukany Niwas building, the attitude of plaintiff changed
as such plaintiff has literally put on road. Even though all the garments
and articles of defendants were lying in room no.7 of Vasudeo building.
Thereafter, plaintiff started making false allegations against defendants.
10. It is contended that defendant no.1 is obedient son and he
was always maintaining his parents and he is ready to maintain them.
However, plaintiff should allow defendant no.1 to reside in room no.7
of Vasudeo building so that defendants can have peaceful life and
defendant no.1 can carry out business of joint family. It is contended
that at one point of time suit premises was residential before occupants
started to use the premises from building as commercial. Further it is
common practice of goldsmiths to use part of the premises jointly as
commercial and residential. It is contended that since 1999 defendant
no.1 is using suit premises mainly for business and now plaintiff is
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trying to oust defendant no.1 from suit premises. It is alleged that
plaintiff is demanding huge amount from defendant no.1 and
threatening to remove defendant no.1 from suit premises. It is
contended that the documents possessed by defendant no.1 show that
till end of 2018 the defendant was possessing suit premises, however
after the amount of sale proceeds of premises at Bhynder and Sukanya
Niwas building are handed over to plaintiff his behaviour is changed. It
is contended that allegations made in the plaint are false and it is
denied that defendants have no right in suit premises and only plaintiff
has the rights in suit premises. According to defendants as defendants
are members of HUF and as defendant no.1 since the year, 2000 is
carrying out business at suit premises and as he has developed the
business defendants are entitled to occupy suit premises. It is contended
that telephone connection at suit premises is in the name of defendant
no.1 and shops and establishment license in respect of suit premises is
also in the name of defendant no.1 which clearly show that defendants
have right, title and interest in suit premises. It is contended that suit
premises the only place of business of defendant no.1 and it is only
source of income for his family. It is contended that defendants are not
interested in involving plaintiff in false case. With the help of those
contentions, defendants have prayed to dismiss the notice of motion.
11. Plaintiff has filed his affidavit of rejoinder and denied that
there is HUF as alleged by defendants. However, it is admitted that
defendant no.1 being son of plaintiff, the names of defendants are
appearing in the Ration Card at the address of Room no.6 of Vasudeo
building. It is contended that by virtue of Election card, Voters ID Card,
Aadhar Card, PAN Card, Bank Passbook and income tax details do not
give any right in favour of defendants. It is contended that defendant
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no.1 studied up to 12th Std., but defendant no.1 could not acquire
expertise in goldsmith's business. It is denied that defendant no.1
started assisting plaintiff in the business. It is contended that plaintiff
was required to employ artisan for making the ornaments. It is denied
that since 1999 defendant no.1 is working with plaintiff from suit
premises as member of HUF. It is contended that defendant no.1 was
allowed to come to suit premises to learn the art of making silver and
gold ornaments. It is denied that plaintiff is not attending the business
regularly since 2015. It is contended that even though plaintiff is
suffering from diabetes and blood pressure those diseases are under
control by regular medication. It is alleged that after marriage of
defendant, plaintiff and his wife were tolerating and misbehavour
defendants. It is admitted that after marriage, defendants were
permitted to reside with plaintiff in room nos.6 and 7 of Vasudeo
Building. It is contended that the tenanted premises from Sukanya
Niwas building was acquired by plaintiff in the name of defendant no.1.
It is denied that amount received from sale proceeds of Bhynder flat is
kept with plaintiff. The incident dated 28/10/2018 is also denied by
plaintiff. It is contended that by contributing or paying the rent,
electricity bills and out goings of suit premises will not give any legal
right in favour of defendants. It is contended that the business from suit
premises belongs only to plaintiff and defendant no.1 has no right in it.
It is denied that defendant no.1 is obedient son and always ready to
maintain plaintiff and his wife. All the allegations made by defendants
are denied by plaintiff. It is alleged that false complaint in writing is
made by defendant no.2 at the instance of defendant no.1 and it shows
that defendants can go to any level to oust plaintiff from plaintiff's
commercial premises. It is denied that defendants shifted to suit
premises just as a case of emergency and requirement. It is also denied
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that the building in which suit premises is situated was residential
building before occupants or tenants from said building started to use it
as commercial. It is specifically contended that suit premises is
commercial one and plaintiff is using it since beginning for commercial
purpose. It is denied that it is common practice of goldsmiths to reside
in the part of business premises, however it is contended that
defendants are forcibly using suit premises for their residence even
though they have no legal right to reside in it.
12. Roznama of the matter shows that on 16/09/2019
arguments of plaintiff's advocate Mr.Bhat were heard. Adv.Mr.Bhat
submitted that defendants are served with writ of summons and copy of
notice of motion and inspite of it till 16/09/2019 defendants had not
filed their reply to notice of motion. It is argued that suit premises is
commercial premises in which plaintiff is doing his business as
goldsmith, however defendants have forcibly started residing in suit
premises and thereby defendants have prevented plaintiff from doing
his business. It is argued that defendants thereby have changed the
user of suit premises hence landlord of suit premises may give notice to
plaintiff for vacating suit premises for change of its user. Plaintiff's
advocate referred copy of report lodged by defendant no.2 with
V.P.Road Police Station, Mumbai on 13/12/2018. In said report
defendant no.2 has alleged that plaintiff had outraged the modesty of
defendant no.2 by pulling her hair and by touching her breast.
According to plaintiff's advocate, said false report is filed with a
intention to pressurize plaintiff and to deprive plaintiff from entering
into suit premises. It is argued that defendant no.1 is real son of
plaintiff and husband of defendant no.2 but defendant no.1 has
instigated defendant no.2 to file false report with police, however due
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to CCTV footage of suit premises in which alleged incident was
recorded, police concluded that plaintiff has not done any bad things as
alleged, hence plaintiff could be saved. Plaintiff's advocate argued that
defendants have no right to prevent plaintiff from entering into suit
premises and to continue its occupation as suit premises is commercial
one used for earning bread and butter by plaintiff. It is submitted that
plaintiff has filed documents like rent receipts, shop and establishment
license, electricity bills of suit premises etc. to show that, plaintiff is
tenant in suit premises and plaintiff has right to occupy it. Hence,
according to plaintiff's advocate notice of motion is necessary to be
made absolute.
13. After hearing plaintiff's advocate on 16/09/2019 matter
was adjourned to 19/09/2019, 24/09/2019 and meanwhile defendants
have filed their reply to notice of motion. On 30/09/2019 both the
learned advocates for plaintiff and defendants sought adjournment on
the ground that parties to the suit were thinking for settlement,
however settlement could not take place between the parties. Till
13/03/2020 arguments about notice of motion were not advanced on
behalf of defendants and the Court was compelled to fix matter for
order on notice of motion order on 21/03/2020, however due to
Corona Pandemic the order could not be passed and as now the Court
has started working daily the order is being passed.
14. I have given serious consideration to the pleadings of the
parties and copies of documents annexed to the plaint. On careful
perusal of notice of motion, its reply, it is noticed by me that defendant
no.1 has contended that defendants along with plaintiff were residing in
Room nos.6 and 7 from Vasudeo Building. Thus, it becomes clear that
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residence of plaintiff and defendants was separate from suit premises
which is commercial one. Hence, it can be said that suit premises is
used for commercial purpose only and it cannot be used by defendants
for residential purpose. It is admitted fact that suit premises was
obtained by plaintiff on tenancy basis and plaintiff as a tenant was/is
doing his business as goldsmith at suit premises. Defendant no.1 has
contended that since 2015 plaintiff is not keeping good health and
therefore, defendant no.1 is running plaintiff's business from suit
premises and further defendant no.1 has contended that since 1999
defendant no.1 is assisting plaintiff in business. If really defendant no.1
would have any interest in the business from suit premises and if really
since 2015 defendant no.1 only would have started running plaintiff's
business from suit premises, definitely defendant no.1 would have got
transferred tenancy of suit premises in the name of defendant no.1 and
further defendant no.1 would have got transferred the Shops and
Establishment License of the business from suit premises in the name of
defendant no.1. Till filing of this suit, defendant no.1 has not taken any
such step hence it becomes clear that plaintiff only has the right to run
the business from suit premises as his own business and it cannot be
said to be the business of Hindu joint family. It is unfortunate that in
the old age of plaintiff, defendants have made allegations of extreme
level against plaintiff. It seems that defendants are intending to grab
plaintiff's business and suit premises. Hence, I find that plaintiff has
made out prima facie case for granting temporary injunction restraining
defendants from entering in suit premises. Considering the facts that
plaintiff is tenant of suit premises and plaintiff is doing his business
from suit premises, I find that balance of convenience lies in favour of
plaintiff and not in favour of defendants. If defendants will not allow
plaintiff to do his business from suit premises, plaintiff and his wife in
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old age even will suffer for bread and butter. From the contentions
raised by parties in pleadings it becomes clear that now defendants are
not ready to take care of plaintiff and his wife as such if injunction will
not be granted as prayed plaintiff will suffer from irreparable loss which
cannot be compensated in terms of money because plaintiff will be
deprived from doing his business at suit premises and therefore, will be
deprived of bread and butter. In such circumstances, I find that plaintiff
has made out all the essential ingredients for granting temporary
injunction as prayed in notice of motion and defendants even have not
taken care to argue about the notice of motion. Hence, I find that
plaintiff is entitled for the reliefs sought in notice of motion and I
proceed to pass following order.
O R D E R
Notice of Motion No.2528/2019 is made absolute in terms of
prayer clause(a).
Sd/
(K.P.NANDEDKAR)
03/10/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 30/09/2020, 03/10/2020.
Transcribed on : 15/10/2020
Signed by HHJ on : 15/10/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
03/10/2020 11.04AM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 03/10/2020
Judgment/order signed by P.O on 15/10/2020
Judgment/order uploaded on 21/10/2020
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