Final Order 1

Order Details: Copy of Judgment
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Jud in Suit 2947 of 2019
MHCC010076472019
Presented on : 24.07.2019
Registered on : 16.11.2019
Decided on : 17.04.2023
Duration : 03Y.08M.24D
IN THE CITY CIVIL COURT OF MUMBAI
S.C. SUIT NO. 2947 of 2019
Exh.39
Junaid Salim Chowdhary
Aged 38 years, Occupation: Business
Indian Inhabitant, residing at 202, 286/B,
2nd floor, Aziz Estate, S.G. Barve Marg,
Kurla West, Mumbai 400 070 ...Plaintiff
Versus
1. Mr. Taufiq Ahmed Khan
Aged: Major, Occupation: Business
Residing at 2B/1116 1118 Raheja
Classique, Oshiwara Link Road, Andheri
West, Mumbai 400 053.
OR
Galfa Travel Services
Having address at Dheeraj Heritage,
2 39/40, Milan Bridge, Signal,
Santacruz West, Mumbai 400 054
2. Mrs. Siddiqua Taufiq Khan
Aged: Major, Occ. Not known
Residing at 2B/1116 1118 Raheja
Classique, Oshiwara Link Road,
Andheri West, Mumbai 400 053. ….....… Defendants
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CORAM: HIS HONOUR JUDGE
SHRI. VIRENDRA D. KEDAR
(C.R. NO.1)
DATE: 17th DAY OF APRIL 2023
: Appearances:
Adv. Zubin Dalal for the plaintiff
Adv. Ramesh Kamble for defendants.
JUDGMENT
(Delivered on this 17th day of April 2023)
The plaintiff has filed the present suit under section 6 of
the Specific Relief Act, 1963 for restoration of possession, permanent
injunction and for damages of Rs.23,22,000/.
2. Briefly summarized, the facts of the case are as under:
Defendant no.1 is the owner of shop nos.1 and 2 and
defendant no.2 is the owner of shop no.3, on ground floor, situated at
Sapna Complex, 285/123 S.G. B Road, Kurla (West), Mumbai (herein
after referred to as 'Suit property'). The plaintiff had entered into two
separate agreements of leave and licenses dated 26.08.2014 in respect
of suit property with defendants no.1 and 2 respectively. The plaintiff
was allowed to use and occupy the suit property for the period of 36
months commencing from 26.08.2014 till 25.08.2017 with locking
period of 24 months with 10% increase every year. The plaintiff has
carried his business of Gymnasium under the name of “X Sport fitness”
on the suit property.
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3. It is further contention of the plaintiff that, it was agreed
that the plaintiff shall pay to defendants a license fee @ Rs.24,000/
p.m., commencing from 26.08.2014 payable on or before the 10th day of
every license month in advance. In the event of any delay, it shall carry
interest @ 21% p.a. In addition to the said monthly compensation, the
plaintiff shall on or before execute hereof deposit a sum of Rs.70,000/
with the defendants as interest free security deposit for due
performance of agreement. Further, in addition to the payment of
aforesaid license fees, the plaintiff shall bear and pay actual
maintenance charges, taxes, other outgoings and electricity charges of
the suit property.
4. It is further contentions of the plaintiff that, the electricity
meter was in the name of defendant no.1 and Reliance Power was
providing electricity to the suit property. In the month of December
2015, Vigilance officer from Reliance Power visited suit property and
removed the electricity meter. Thereafter, the plaintiff get settled the
entire matter and the meter was restored. Thereafter the plaintiff
removed his partner Mr. Afzal Khan Munawar and continued the
business of Gymnasium in the name of “X Sports Fitness” alone.
5. It is further contention of the plaintiff that, on 25.08.2017
the leave and license came to an end due to efflux of time. Thereafter
due to good relations between the plaintiff and defendants, the plaintiff
continued to use and occupy the suit property and continued his
business on it, even after leave and license agreement came to an end.
The plaintiff paid license fee without any default to the satisfaction of
defendants in part cash and part bank transaction. The plaintiff has
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been in continues use and occupation of the suit property and is
running his business of Gymnasium since 26.08.2014.
6. It is further submitted that, after Adani Electricity Mumbai
Limited took over Reliance Power, Vigilance officer of it visited the suit
property on 29.11.2018 and removed the electricity meter without
giving notice to the plaintiff. Therefore, the plaintiff has written letter
dated 05.12.2018 to Senior Manager Adani Electricity Mumbai, thereby
requested to restore the said electricity meter. Since there was no reply
from the Adani Electricity Ltd., and the plaintiff business was suffering,
the plaintiff hired some Generators and started carry on his business.
7. It is further contention of the plaintiff that, on 10.04.2019
defendant no.2 visited the suit property and forcefully put her lock to
the shutter and removed the plaintiff from use and occupation of the
suit property. All machineries and equipment’s worth Rs.30 lacs were
lying inside the said property. The plaintiff met the defendant, wherein
the defendant promised to remove the lock and restore back to use and
occupation of the suit property to the plaintiff, if the electric meter is to
be restored back.
8. It is further contention of the plaintiff that, he has paid
Rs.3,00,000/ on 15.05.2019 and handed over four postdated cheques
of Rs.50,000/each to Adani Electricity Mumbai Ltd. Thereafter, the
electric meter had restored on 10.06.2019. After restoration of said
electric meter, the defendant did not open the lock and did not restore
back the suit property to the plaintiff’s use and occupation. Inspite of
giving promise by the defendants to return the keys upon reinstallation
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of meter, they failed to keep their promises. Therefore, the plaintiff
suffers huge loss of Rs.23,22,000/. As the plaintiff has been wrongfully
and forcefully removed by the defendant from the suit property, hence,
the plaintiff is entitled for restoration of possession and damages as
prayed. Hence the suit.
9. The defendant no.1 and 2 have strongly opposed the claim
by filing separate written statements (Exh.7) & (Exh.5) respectively.
Defendants have admitted of executing Leave and License agreement
dated 26.08.2014 in favour of the plaintiff for the period of 36 months,
as per terms and conditions mentioned therein. It is contention of
defendants that, the plaintiff use to pay license fees and the electricity
charges of said license property regularly for some period, however
thereafter for one or other reasons started defaulting in payment of
license fee. The plaintiff also failed to pay electricity charges. The
plaintiff was also caught while stealing electricity by the Vigilance
department of the Reliance Power Ltd. Therefore, the electricity meter
of the suit property was removed by Reliance Power Ltd. Thereafter,
the plaintiff tendered apology to defendants about his illegal act and
assured that the same will not be happen again and sought forgiveness
vide letter dated 11.01.2016. Considering the alleged financial strain
and written expressed apology tendered by the plaintiff to defendants,
they decided to forgive the plaintiff. Defendants did not choose to
terminate agreement but on humanitarian ground further allowed the
plaintiff to continue his business of Gymnasium into the suit property.
10. It is further contentions of defendants that, the plaintiff
vide letter dated 10.05.2016 undertook to pay all the arrears of License
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fees as well as to settle all electricity bills by 16.05.2016. In due course
of time, the plaintiff cleared some part of dues and as the term of the
license period was expired on 25.08.2017, the defendant no.1
addressed a letter to the plaintiff on 08.07.2017 and sought clarification
whether he wanted to renew the said Leave and License Agreement and
also called upon the plaintiff to clear his dues. However, the plaintiff
verbally expressed his unwillingness to renew the license on account of
loss in business and acute financial strain. The plaintiff assured
defendants that, he would clear all dues by 25.08.2017 i.e., date of
determination of License period. The plaintiff handed over one set of
keys of the locks of the suit property to defendant no.2. Since then,
defendants are in exclusive possession of their respective shops.
11. It is further contended that, at the time of handing over
possession of the suit property to defendants, the plaintiff sought time
to clear the pending dues and thus asked defendant no.2 to keep
Gymnasium equipment’s into the suit property till the plaintiff find a
new suitable place for his Gymnasium and till payment of due amount
of arrears. Defendants considering request of the plaintiff had kept the
Gymnasium equipment’s in the suit property.
12. It is further contended that, despite the aforesaid assurance
given by the plaintiff and repeated requests made by the defendants to
the plaintiff, the plaintiff on one or other reasons continue to seek time
for its paying and also from removal of his equipment’s from the suit
property. Therefore the defendant no.1 has addressed letter dated
18.04.2019 thereby again calling upon the plaintiff to clear pending
dues towards License fees and electricity charges on or before
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01.05.2019 failing which the defendants would be constrained to sell
plaintiffs Gymnasium equipment’s lying in the suit property. Instead of
honoring his words, contrary with mala fide and dishonest intentions
and to defeat the arrears of license fees and electricity charges, the
plaintiff has filed the suit on false and fabricated grounds. Hence the
suit is liable to be dismissed with cost.
13. In view of rival pleadings of both the parties, my learned
predecessorinCourt has framed issues vide Exh.8, to which I record my
findings with reasons as follows:
Sr.
No
Issues Findings
1. Whether the plaintiff proves that, he was in
lawful and peaceful possession of the suit
property till 10.04.2019?
No
2. Whether the plaintiff proves that, he was
dispossessed by defendants without following
due process of law on 10.04.2019?
No
3. Whether the plaintiff proves that, he has filed
the present suit within 6 months of unlawful
dispossession?
Redundant
4. Whether the plaintiff proves that, he has
suffered losses to the tune of Rs.23,22,000/
due to the unlawful dispossession by the
defendants?
Redundant
5. Whether defendants prove that, the plaintiff
has handed over possession of the suit
property on 25th August, 2017?
No
6. What order and decree and relief? As per final
order.
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REASONS
14. In support of his claim, the plaintiff has examined himself
as PW1 below (Exh.9) by filing affidavit of examinationinchief. The
plaintiff has deposed as per the contents of the plaint hence I do not
want to reproduce the same to avoid the repetition. The plaintiff relied
on the documents such as; copies of Leave and License Agreement
dated 26.08.2014 (Exh.11 and 12) respectively, Bank statement of the
plaintiff (Exh.13), print out of the auto generated receipts for the
payments made to defendant no.2 (Exh.14), Receipt of payment
received through Card Swipe Machine (Exh.15), photocopy of receipts
of payment received through Card Swipe machine (Exh.16), QR Code in
the name of ‘X Sport Fitness’ (Exh.17), photos of the various
Machineries and Equipment’s in working condition lying in the suit
property ( Exh.18), photo of reinstalled meter dated 18.07.2019
(Exh19), photo of the suit property dated 18.07.2019 (Exh.20),
Certificate under section 65B of the Evidence Act (Exh.21),
Membership card dated 02.03.2019 to Mr. Sarfaraz Shaikh (Exh.22),
Membership card dated 17.02.2019 of Mr. Faiz Shaikh (Exh.23),
Electricity bill of September 2018 (Exh.24), Mobile bill issued by IDEA
(Exh.25), Office copy of the letter dated 05.12.2018 (Exh.26), Invoices
issued by Balaji power for the month of December 2018 to till March,
2019 (Exh.27), Invoices and certificate dated 01.01.2018 issued by Fire
Quiet (Exh.28) and Copy of additional affidavit dated 04/09/2019
along with Annexures (Exh.29).
15. In their defense, defendants have examined defendant
no.2 as DW1 below (Exh.32), she also deposed as per the contents of
their written statement, hence, I do not want to reproduce the same to
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avoid the repetition. Defendants are relied on documents such as
plaintiff’s letter dated 10.05.2016 (Exh.34), letter of defendant no.1
dated 18.04.2019 (Exh.35), letter date 11.01.2016 written by the
plaintiff to defendant no.1 (Exh.36) and letter of defendant no.1 dated
08.07.2017 to plaintiff (Exh.37).
16. The learned advocate Mr. Dalal for the plaintiff argued that
defendants are not disputing about execution of leave and license
agreement dated 26.08.2014 in favour of the plaintiff in respect of suit
property. Even after efflux of time on 25.08.2017, the plaintiff
continued to use and occupy the suit property till his dispossession from
the suit property on 10.04.2019 without the consent of the plaintiff.
17. It is further argued that to substantiate the facts that the
plaintiff is in continues possession, occupation and use of suit property,
the plaintiff has proved and relied upon various documents. The
plaintiff has filed the copy of bank statement wherein it reveals that the
plaintiff from time to time make payment of license fee in part to the
defendant. It is further argued that the plaintiff has paid Rs.3 lacs and
had issued four postdated cheques of Rs.50,000/ each to Adani
Electricity on 15.05.2019, which itself shows that the plaintiff was in
use and occupation of the suit property. If the plaintiff was not in
possession of the suit property till 10.04.2019 then there is no question
of making payment by the plaintiff towards electricity bills on
15.05.2019.
18. The learned advocate Mr. Dalal for the plaintiff further
argued that the Gymnasium equipment’s of the plaintiff is lying in the
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suit property till his dispossession without his consent on 10.04.2019.
Even thereafter the equipment’s are lying there. If the plaintiff really
vacated and handed over the possession of suit property to defendants
in the year 2017 i.e., on expiration of lease then there is no reason for
keeping articles of the plaintiff’s gymnasium by defendants till
10.04.2019 or thereafter. This fact itself establishes that, the plaintiff
was in use and in possession of suit property till 10.04.2019.
19. It is further argued that, defendants dispossessed the
plaintiff without following due procedure of law, hence the plaintiff is
entitled for restoration of possession. The plaintiff was dispossessed on
10.04.2019 and the suit is filed on 24.07.2019 i.e., within six months
from his forcible dispossession i.e., without his consent and by playing
mischief. Hence the suit is within limitation.
20. The learned advocate for the plaintiff further argued that
the plaintiff was dispossessed from the suit property without his
consent. The defendants have assured the plaintiff that as and when he
paid due amount and remaining balance of electricity bill and upon
restoration of electricity meter, they will restore possession of suit
property to the plaintiff. Hence the plaintiff has paid due amount of
electricity bill and accordingly, the electric meter was restored.
However, defendants failed to act /keep their words. It amounts to
dispossession of the plaintiff without his consent as defined under
section 6 of the Specific Relief Act. Therefore, the plaintiff is entitled
for restoration of possession of suit property.
In support of his argument, the learned advocate for the
plaintiff relied upon the authorities reported in the case of (1) Sopan
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Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and
others AIR 2004 Supreme Court 1801 and (2) State of Orissa and
others Vs. Mangalam Timber Products Ltd.; AIR 2004 Supreme
Court 297.
21. Per contra, the learned advocate Ramesh Kamble for
defendants vehemently argued that from the oral as well as
documentary evidence, the plaintiff failed to show that he was in
peaceful possession of the suit property on 10.04.2019. The plaintiff
failed to show that he was illegally dispossessed by the defendants
without following due process of law on 10.04.2019. Therefore, the
plaintiff is not entitled for the reliefs claimed.
22. The learned advocate for defendants argued that since
beginning the plaintiff and his partner are defaulter in payment of
license fees. Even the plaintiff had manipulated with the electricity
meter and hence it came to be removed by the electricity company. The
plaintiff has tender unconditional apology for his act with the
defendants. Thus, defendants on humanitarian ground allowed the
plaintiff to continue his business in the suit property. Even prior to
expiration of license on 25.08.2017, defendants themselves requested
the plaintiff whether he want to continue with the possession of suit
property by executing the fresh agreement, however, the plaintiff
refused to do so. The plaintiff was in arrears of dues of license fees and
electricity bill amount hence the plaintiff himself requested defendants
to keep the Gymnasium equipment’s in the suit property.
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23. It is further argued that, thereafter, defendants requested
the plaintiff to clear the dues and to take back the Gymnasium
equipment’s. The plaintiff has cleared electricity bill but did not pay the
due license amount. Hence, defendants have issued notice to the
plaintiff in respect of making payment of license fee and removing his
article. Being aggrieved by same, the plaintiff has filed false case against
the defendants.
24. It is further argued that once the license came to be
revoked then the licensee though in actual possession of the property in
question cannot be protected by law. So far as he is not entitled to avail
himself of the remedy provided by Section 6 of the Specific Relief Act.
To support this above contention, the learned advocate for defendants
relied on the authorities reported in the case of Maganlal Radia Vs.
State of Maharashtra; MANU/ MH/0167/1960.
As to issues no. 1 and 2:
25. As both the issues are interlinked with each other and
arising out of same set of evidence, hence taken together for discussion
so as to avoid repetition.
This is a suit under section 6 of the Specific Relief Act for
restoration of possession. Thus, for ready reference, I reproduce section
6 of the Specific Relief Act, which reads as under:
" Section 6: Suit by person dispossessed of immovable property:
(1) If any person is dispossessed without his consent of immovable
property otherwise than in due course of law, he or any person (through
whom he has been in possession or any person) claiming through him
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may, by suit, recover possession thereof, notwithstanding any other title
that may be set up in such suit.
(2) No suit under the section shall be brought (a) after the expiry
of six months from the date of dispossession; or (b) against the
Government.
(3) No appeal shall lie from any order or decree passed in any suit
instituted under this section, nor shall any review of any such order or
decree be allowed.
(4) Nothing in this section shall bar any person from suing to
establish his title to such property and to recover possession thereof."
26. At the outset, I want to mention that, there is no dispute in
between the parties regarding the fact that, defendants are owners of
suit property and they put the plaintiff in possession of suit property in
lieu of leave and license agreement dated 26.08.2014. The Leave and
License was executed for the period of 36 months commencing from
26.08.2014 till 25.08.2017, as per terms and conditions mentioned
therein.
27. Now, it is the case of the plaintiff that even after expiry of
leave and license agreement dated 25.08.2017 defendants allowed him
to continue with the use and occupation of the suit property till
10.04.2019, when he was dispossessed from the suit property without
following due procedure of law and without his consent. Against this, it
is contention of defendants that, the plaintiff has vacated the suit
property and handed over its possession on 25.08.2017 itself. However,
as there is license fees and electricity charges were due on the plaintiffs,
he requested to keep the Gymnasium equipment’s till the payment of
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said due amount. Therefore, Gymnasium equipment’s were lying in the
suit property. As the plaintiff failed to pay the amount of due license
fees, the defendant no.1 has addressed a letter dated 18.04.2019
thereby asked the plaintiff to clear all the dues. Hence being aggrieved
by issuance of said letter, the plaintiff has filed the false suit.
28. Here, it is to be noted that, it is the case of the plaintiff that
as he was in possession of suit property till 10.04.2019 hence he has
paid the electricity bill of Rs.3,00,000/ on 15.05.2019 and handed over
four postdated cheques of Rs.50,000/ each to Adani Electricity
Mumbai Ltd. It is further contended that, if the plaintiff was not in
possession of the suit property, then there is no question for him to
make payment of electricity charges. Now, in view of such type of
pleadings and evidence led by the parties, it is necessary to see whether
the plaintiff has succeeded to show that on 10.04.2019 he was in
possession of the suit property and was dispossessed without his
consent of suit property otherwise than in due course of law.
29. The learned advocate for the plaintiff relied on the
authority reported in the case of Sopan Sable (supra); at para no.24 of
the Judgment, the Hon'ble Supreme Court observed that, "There are two
different sets of principles which have to be borne in mind regarding
course to be adopted in case of forcible dispossession. Taking up the first
aspect, it is true that where a person is in settled possession of property,
even on the assumption that he has no right to remain in property, he
cannot be dispossessed by the owner except by recourse of law. This
principle is laid down in Section 6 of the Specific Relief Act, 1963. That
Section say that if any person is dispossessed without his consent from
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immovable property otherwise than in due course of law, he or any person
claiming through him may, by suit, recover possession thereof
notwithstanding any other title that may be set up in such suit. That a
person without title but in "settled" possession as against mere fugitive
possession can get back possession " If forcibly dispossessed or rather, if
dispossessed otherwise than by due process of law, has been laid down in
several cases."
30. In the case of State of Orissa and Other (supra), the
Hon'ble Supreme Court at para 4 observed that, "the principal plea of the
respondent was that there was no contract in writing and therefore, the
applicability of the principle of promissory estoppel was not established.
The High Court has rightly discarded this plea. To attract the applicability
of the principle of estoppel it is not necessary that there must be a contract
in writing entered into between the parties. We are not satisfied even
prima facie that it was a case of an error committed by the State
Government of which it was not aware. The State of Orissa should have,
while holding out the representation, taken into consideration the fact
who will have to do replantation and that the permission of the
Government of India would be needed for the purpose. The State cannot
take advantage of its own omission. The State Government having
persuaded the respondent to establish an industry and respondent having
acted on the solemn promise of the State Government, purchased the raw
material at a fixed price and also sold its products by pricing the same
taking into consideration the price of raw material fixed by the State
Government and supplied, the State Government cannot be permitted to
revise the terms for supply of raw material adversely to the interest of the
respondent and effective from a back date and place the respondent in a
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situation which it will not be able to resolve. The respondent could not
have revised their price from a back date and recovered it from
innumerable consumers to whom their finished products were supplied at
a fixed price."
31. I have also gone through the authority relied upon by the
learned advocate for the defendants in the case of Maganlal Radia
(supra), wherein the Hon'ble Bombay High Court at para no.4 while
keeping reliance on the Judgment of the Bombay High Court in the
case of Amirudin Vs. Mahammad Jamal I.L.R. (1891) Bom.685, held
that, “in the case of licensee whose license has been revoked, therefore, the
position is that even though he may have actual possession of the property
in question, that possession is not juridical possession and it is not
protected by law, in so far as he is not entitled to avail himself of the
remedy provided by Section 9 of the Specific Relief Act, 1877, or Section 6
of the Specific Relief Act, 1968, which has not replaced that section."
32. Now, as discussed supra, it is main contention of the
plaintiff that he was dispossessed without his consent on 10.04.2019.
On that day the defendants get vacated the suit property on the
assurance that, if the plaintiff paid due electricity charges and if the
meter is restored then they will restore the possession of the plaintiff.
Accordingly, the plaintiff has paid electricity charges of Rs.3,00,000/
and issued four postdated cheques of Rs.50,000/ each to Adani
Electricity Power and has complied, as per the assurance given by the
defendant. However, defendants did not put him in possession of suit
property. Therefore, the plaintiff is entitled for restoration of possession.
Now, it is to be seen that, during the course of cross examination,
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particularly at para no. 13, the plaintiff has given categorical admissions
i.e., on 10.04.2019 when defendant no.2 visited the suit property, it
was evening but he is unable to say exact time. At that time Gymnasium
was open. On that day, the defendant no.2 had been to Gymnasium
with one person but he does not know him. He categorically admitted
that, defendant no.2 has not forcibly dispossessed him from the suit
property. Defendant no.2 has not used force against his clients who
were present in the Gymnasium. Said Gymnasium is having three
rolling shutters consisting of 2 locks each. The plaintiff has not opposed
to the act of defendant no.2. Though the witnesses stated that argument
took place in between defendant no.2 and himself, however he further
admitted that he allowed defendant no.2 to put lock to the shutter. He
further admits that he has not given report of said incident to the police
station. Even, he has not given any complaint of said incident in the
police station. He categorically admitted that after putting lock by
defendant no.2 to the shutter, he left the place. From the further
admissions given by the plaintiff in his cross examination, it reveals that
no force applied on the plaintiff in any manner whatsoever. The
plaintiff has stated that he allowed to defendant to put lock on the
assurance that as and when he will repay due electricity charges and
license fee, defendants allow him to reentered into the suit property.
In my view, if any prudent person is in possession of the property and
he was dispossessed forcibly or against his wishes, then naturally he will
oppose the act of other sides. At least, he reported the said incident to
the police station. But surprisingly neither the plaintiff opposes the act
of defendant no.2, a lady, nor raised his grievances with the police
station or any suitable authority. Even, when as per the plaintiff his
customers were present in the Gymnasium at the time of incident, then
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the plaintiff could have examined any witness in his support. However,
he failed to examine any supporting witness, which itself cast doubt on
his version. Thus, it shows that the plaintiff was not dispossessed
without his consent from the suit property or otherwise than in due
course of law.
33. So far as the contention of the plaintiff that he has paid
electricity charges of Rs.3,00,000/on 15/05/2019 and handed over
four postdated cheques of Rs.50,000/ each to Adani Electricity
Mumbai, Ltd., is concerned, in my view when Gymnasium equipment’s
worth Rs.30,00,000/ of the plaintiff were lying under the custody of
the defendant in the suit property, then naturally so as to receive back
his equipment’s, the plaintiff has to clear all the dues. Thus merely,
making payment of electricity charges which was used by the plaintiff is
not suffice to show that the plaintiff was dispossessed without following
due procedure of law and without his consent. Even if, for the sake of
moment, the contention of the plaintiff is admitted true that defendants
have promised and assured him that they will again put him in
possession of suit property upon payment of electricity charges and bill
amount of due license fees, then naturally the plaintiff has to get it in
writing. No documents is filed on record, so as to substantiate the
contention of the plaintiff. Therefore, I do not find any substance in the
contention of the plaintiff.
34. Here, it is further to be noted that, during course of cross
examination the plaintiff himself admitted that, for all three shops
collectively license fees was agreed to pay to Rs.70,000/ per month for
first year, Rs.77,000/ per month for second year and Rs.84,000/ per
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month for third year. He further admits that for three years he has to
pay collectively an amount of Rs.27,80,400/. He further admits that
the electric meter was disconnected twice viz., for the first time, it was
disconnected as there is mischief played by the plaintiff which
apparently seen from letter (Exh.36) and for the second time the
electric meter was disconnected for nonpayment of electricity bill. Then
naturally it is the duty casted on the plaintiff to pay the electricity bill
for utilizing the same. The bank statement filed by the plaintiff, did not
show that he has paid the entire amount of Rs.27,80,400/ as agreed in
between the plaintiff and defendants towards license fees in respect of
suit property for the period of first three years, which itself shows that
the plaintiff was in due of license fees. As discusses supra, if the plaintiff
was dispossessed without following due procedure of law and without
his consent, then at the time of dispossession, he definitely raised hue
and cry or atleast lodged his grievances with the police station, Court
or suitable authority. But the plaintiff did nothing. No documentary
evidence filed on record to show that defendants assured the plaintiff of
putting back in possession of suit property upon payment of due
electricity bill and license fees. Hence the plaintiff totally failed to prove
that he was dispossessed by the defendants without following due
process of law and without his consent on 10/04/2019. Hence my
answer to issues no.1 and 2 is in negative.
As to issues no. 3 and 4:
35. As the plaintiff failed to prove that he was dispossessed by
defendant without following due process of law, thus these issues
become redundant. Hence my answer to issues no.3 and 4 is
accordingly.
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Jud in Suit 2947 of 2019
As to issue no. 5
36 So far as the defendants contentions that the plaintiff has
handed over possession of suit property on 25/08/2017 is concerned,
the defendants have failed to prove same by leading oral as well as
documentary evidence. Hence, my answer to issue no.5 is in negative.
As to issue no.6:
37. In view of my above discussion, I pass the following order:
ORDER
Suit stands dismissed with cost.
Decree be drawn up accordingly.
(Virendra D. Kedar)
Judge,
Date: 17/04/2023. City Civil Court, Greater Mumbai.
Dictated on :17/04/2023
Transcribed on :18/04/2023
Signed on :19/04/2023
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Jud in Suit 2947 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 19/04/2023 NAME OF STENOGRAPHER(GI)
Mrs. V.V.Mhatre
TIME:
Name of the Judge (With Court
room no.)
Shri Virendra D. Kedar
(Court Room No.01)
Date of Pronouncement of
JUDGEMENT/ORDER
17/04/2023
JUDGMENT/ORDER signed by
P.O. on
19/04/2023
JUDGEMENT/ORDER uploaded on 19/04/2023
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