Final Order 2

Order Details: Notice of Motion
Pdf Text: N/M No.2840 of 2019
MHCC010078302019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.2840 of 2019
IN
S.C. SUIT NO. 2037 OF 2019
Mrs. Hansa Wd/o. Pradeep Kumar Gadoya … Plaintiff.
Versus
M/s. Prabodhchandra Himmatlal
and Co. & Ors … Defendants
CORAM : HER HONOUR JUDGE
SMT. H. C. SHENDE
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.65)
DATE : 17th MARCH, 2026
Appearance :-
Adv. Pooja Narvekar a/w. Adv. Neha Pande h/f Adv. Saraogi for plaintiff.
Ld. Adv Dipak Mehta for defendant Nos2 to 4.
O R D E R
The present notice of motion is taken by the plaintiff
seeking temporary injunction restraining the defendants or any person
claiming under or for them from entering upon any portion of the shop
No.181 situated at Adi Dadar Galli, Narayan Chowk, Mulji Jetha
1/7
-- 1 of 6 --
N/M No.2840 of 2019
Market, Mumbai or inducting any third party in respect of the portion of
the said shop, except by following due process till final disposal of suit.
2. It is the case of the plaintiff that, the suit premises
originally belong to the plaintiff and her predecessors. Defendant No.1
is a partnership firm and defendant Nos. 2 to 4 are the partners of the
defendant No.1. One of the earlier partner namely Jayantilal Vitthaldas
Mehta expired and thereafter, his wife Savitaben Mehta representing
other heirs came to be introduce as a partners and was entitled to get
benefits in respect of the firm.
It is further contended by plaintiff that, though the
defendant no.1 permitted to attend the customers in the shop, the
entire control and possession of the shop always remained with the
plaintiff.
The plaintiff further contended that, the defendants
attempted to claim right over a portion of the shop during earlier
litigation. During the pendency of earlier proceedings the main
defendant expired and the business actually comes to an end.
Thereafter, the defendants voluntarily left the shop. It is further added
by the plaintiff that, when she approached to the defendants on
22.06.2019, to settle the dispute, it was not work out but was
threatened for compensation and to assert right in the premises hence,
the present suit for declaration and injunction filed by the plaintiff. So
also present Notice of Motion with prayer made therein.
2/7
-- 2 of 6 --
N/M No.2840 of 2019
3. The defendants have filed their written statement and then
by pursis dated 03.09.2019 submitted that, they are adopting their
written statement as a reply to the present Notice of Motion.
4. The defendants opposed the Notice of Motion on the
ground that, the present suit itself is not maintainable in view of the
earlier litigation between the parties. According to the defendants in L E
suit No.41/42/2001 filed before the Small Causes Court and the
subsequent Appeal No.302/2017, the dispute regarding tenancy right in
respect of same premises was finally adjudicated.
It is submitted that, by judgment dated 06.04.2023, it has
been held that, the defendants become direct tenants of original
landlord namely New Piece Good Bazar Co. Ltd. with effect from
01.02.1973. It is therefore, contended that, once the said declaration
had been granted and the judgment has attained finality, the plaintiff
cannot seek an injunction restraining the defendants from entering the
shop. The defendants further submitted that, appeal filed by the
plaintiff and her children is pending and therefore, relief sought in the
present is contrary to the finding already recorded by the competent
court in the earlier litigation between the parties. The suit and Notice of
Motion deserves no merit. Notice of Motion. needs to be dismissed.
5. Heard both sides. Perused record.
6. The record indicates that, there is long standing dispute
between the parties regarding shop No.181 situated at Mulji Jetha
Market. It is not disputed that, earlier proceedings in the nature of L.E.
3/7
-- 3 of 6 --
N/M No.2840 of 2019
Suit no. 41/42 of 2001 was instituted before the Small Cause Court.
The said proceedings culminated in and appeal bearing No. 302 of
2017, before the Appellate Bench of the Small Causes Court. It is
brought on record by the defendants that, by judgment dated
06.04.2023, the appellate court has held that, the defendants are direct
tenant of the original landlord namely New Piece Goods Bazar company
Ltd., with effect from 01.02.1993.
7. At this stage of considering the application for temporary
injunction, the court has to examine whether the plaintiff has establish
prima facie case? Whether balance of conveniences lies in favour of
plaintiff? and Whether irreparable loss would cause to plaintiff if
injunction is not granted?
8. In the present case the findings recorded in the earlier
proceedings assume significance. The declaration regarding tenancy
rights having been granted in favour of the defendants by the
Competent Court. The plaintiff can not seek a relief in the present suit
which virtually nullifies the effect of said judgments.
9. The injunction sought by the plaintiff is to restrain the
defendants from entering any portion of the said shop. However, when
the competent Court has already recognized the defendants as a direct
tenant of the landlord, such a relief can not be granted at this interim
stage. Granting such injunction would amount to defeat the effect of the
earlier adjudication and indirectly granting decree in favour of plaintiff
without trial of the suit.
4/7
-- 4 of 6 --
N/M No.2840 of 2019
10. It also appears that, the plaintiff has already challenged the
earlier decision by filling appeal proceedings, which are stated to be
pending. When the issue relating to the rights in the suit premises has
already been adjudicated and challenge to the said decision is pending
before the appropriate forum, it would not be proper for this court to
grant relief as prayed by the plaintiff, which are inconsistent with the
finding recording in earlier proceedings.
11. In these circumstances, the court conclude that, the
plaintiff has failed to establish a prima facie case for grant of injunction.
The balance of convenience is not lying in favour of plaintiff and the
plaintiff would not suffer any irreparable loss ever if injunction as
prayed is not granted.
12. Hence, in the circumstances and for the reason mentioned
above the court proceed to pass following orders.
O R D E R
1. Notice Motion No.2840 of 2019 in suit No.2037 of 2019 is
hereby dismissed.
2. No order as to cost.
3. Proceeding of Notice of Motion No.2840 of 2019 in S.C.
Suit No.2037 of 2019 is closed.
Date : 17.03.2026 (H. C. Shende )
Judge,
City Civil Court, Gr. Bombay.
Direct typed on : 17.03.2026
Corrected on : 17.03.2026
Signed on : 17.03.2026
5/7
-- 5 of 6 --
N/M No.2840 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.03.2026 at 05.05 pm (Ashok Sudhakar Patil)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. H. C. Shende (C.R.No.65)
Date of Pronouncement of
JUDGMENT/ORDER
17.03.2026
JUDGMENT/ORDER signed by
P.O.on
17.03.2026
JUDGMENT/ORDER uploaded on 17.03.2026
6/7
-- 6 of 6 --