Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3022/19(Suit 1942/19)
MHCC010082512019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3022/2019
IN
S. C. SUIT NO. 1942/2019
1. Gulab Shamji Vaghani
2. Raghu Basvaraj Gowda .. Plaintiffs.
V/s.
Rajmani Gayaprasad Verma .. Defendant
Appearances :
Adv. D. A. Barot for plaintiff.
Adv. Pradeep Dubey for defendant.
Coram: His Honour Judge
Shri. A.H.Laddhad
(C.R. No.03).
Date : 22.3.2022.
ORDER
1. Plaintiff filed instant notice of motion seeking following
reliefs :
(a) That pending the hearing and final disposal of the suit the
Court Receiver, High Court, Bombay or some other fit and
proper person be appointed as a Receiver of the suit premises
with all power under Order 40 Rule 1 of CPC including the
power to take possession of the suit premises from the
defendant or any person whomsoever found in possession
thereof and hand over the same to the plaintiffs as an agent
of the Court Receiver.
(b) That defendant be ordered and directed to pay Rs.2500/ per
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month as and by way of mesne profit and/or compensation
for illegal and wrongful use, occupation and possession of the
suit premises from the date of the suit till the defendant
handover vacant and peaceful possession of the suit premises
to the plaintiffs.
(c) That pending the hearing and final disposal of the suit the
defendant his servants and agent be restrained by permanent
order of injunction of this Hon'ble Court from parting with
possession and/or inducting any third party and/or creating
third party rights of whatsoever nature in respect of the suit
premises or any part thereof;
(d) For interim and adinterim reliefs in terms of prayer(a) to (c)
herein above.
(e) Cost and professional cost of the suit.
(f) For any such further and other orders as the nature and
circumstances of the case may require.
2. It is the contention of the plaintiff no.1 that, he is the
owner and landlord of building known as 'Parvati Bhavan', 52/54, Old
Hanuman Lane, Mumbai. It is contended that, the plaintiff no.2 is the
licensee of plaintiff no.1 in respect of wooden cabin/ box having
dimension of height 4 ft X width 2 ft X depth 1 ft, situated at corner of
the building between shop nos. 5 and 6 and stall, on the ground floor of
Parvati Bhavan (hereinafter shall be referred to as a 'suit premises').
3. It is further contended that, the defendant is the tenant of
the plaintiff no.1 in respect of the stall admeasuring approximately 4
sq.ft. having height of 7 ft. on the ground floor in between shop nos. 5
and 6 and wooden stall at the corner of Parvati Bhavan (hereinafter
shall be referred to as 'tenanted premises'). It is the contention of the
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plaintiff that, by a writing dated 16.8.2018, the plaintiff no.1 has
granted leave and license of the suit premises to the plaintiff no.2 for
temporary period of one year commencing from 16.8.2018 to 16.7.2019
at a monthly license fee of Rs.250/.
4. It is the allegation of the plaintiff that, on 2.2.2019, the
defendant without consent of the plaintiff illegally and unlawfully broke
open the lock of the suit premises and removed materials of the plaintiff
no.2 and committed theft of the same. Therefore, the plaintiff no.2 on
9.2.2019, lodged a police complaint at LT Marg police station against
the defendant for forcible dispossession from the suit premises. As the
plaintiffs being forcibly dispossessed from the suit premises, therefore
the plaintiff filed instant suit for restoration of the possession and other
reliefs.
5. The defendant opposed the suit and notice of motion by
filing Written Statement. It is the contention of the defendant that, he is
the lawful tenant of the plaintiff no.1 by virtue of registered tenancy
agreement dated 21.10.2016. Thus, he is in exclusive use, occupation
and possession of the suit premises since October 2016. It is the
contention of the defendant that, the plaintiff no.1 has filed suit against
him before Small Causes Court inter alia alleging that, he has created
subtenancy with respect to the suit property. Therefore, the defendant
denied that he has obtained the forceful possession of the suit premises
and thus, he prayed for dismissal of the notice of motion.
6. I have heard both the sides. Perused notice of motion,
plaint and W.S. It is not in dispute that, the plaintiff no.1 is the owner
and landlord of building 'Parvati Bhavan' and the defendant is the
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lawful tenant of the plaintiff no.1 by virtue of registered tenancy
agreement dated 21.10.2016. The tenanted premises is a stall
admeasuring approx. 4 sq.ft. having height of 7 ft. on the ground floor
in between shop nos. 5 and 6 and wooden stall at the corner of Parvati
Bhavan. It is also not in dispute that, the plaintiff no.1 has filed RAE
Suit No. 1418/2018 before the Small Causes Court against the
defendant seeking possession on the ground of subletting. The dispute
in the present suit is with respect to the wooden box consisting of 4 ft X
2 ft X 01 ft situated at the corner of the building between shop nos. 5
and 6 and stall on the ground floor of Parvati Bhavan.
7. It is the specific contention of the plaintiffs that, plaintiff
no.1 vide writing dated 16.8.2018 granted leave and license to the
plaintiff no.2 for temporary occupation of one year on a monthly
tenancy fees of Rs.250/. I have perused the aforesaid writing dated
16.8.2018. It is a simple letter addressed by plaintiff no.2 to the plaintiff
no.1 confirming that the plaintiff no.1 agreed to grant permission to use
suit premises for a temporary period of one year to the plaintiff no.2.
This is the confirmation letter issued by the plaintiff no.2 and thus, it is
signed only by the plaintiff no.2. As it being a confirmation letter, the so
called leave and license granted by the plaintiff no.1 in favour of the
plaintiff no.2 is not filed on record. There is no proof of any concluded
contract between plaintiff no.1 and plaintiff no.2, nor there is such
leave and license between them. On the contrary, admittedly, the
defendant is the lawful tenant of the plaintiff no.1.
8. Moreover, as per the case of the plaintiffs that, plaintiff
no.2 was dispossessed on 2.2.2019 for which he had lodged report on
9th February 2019. The aforesaid conduct prima facie goes to show that,
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there is delay in lodging the complaint. The aforesaid conduct creates a
doubt about the truthfulness of the plaintiff's case. At present, there is
no prima facie material to show that the plaintiff no.2 was in possession
prior to six months of filing of the suit and the defendant dispossessed
him. Therefore, I am of the view that, the plaintiffs failed to make out a
prima facie case. Hence, in such circumstances, I am of the view that,
there is no substance in the Motion and same needs to be dismissed.
Thus, I proceed to pass following order :
ORDER
1. Notice of Motion No. 3022 of 2019 stands dismissed
2. Notice of Motion is disposed of accordingly.
(A.H.Laddhad)
Judge,
Dated : 22.3.2022 City Civil and Sessions Court,
Dictated on : 22.3.2022 (audio record) Greater Bombay (CR 03)
Typed on : 23.3.2022
Signed on :28.3.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Dated28.3.2022, at 4.20 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD (C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 22.3.2022
JUDGMENT/ORDER signed by P.O. on 28.3.2022
JUDGMENT/ORDER uploaded on 29.3.2022
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