Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3026 of 2019 in
Stamp No. 8125 of 2019
1 Date : 07.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3026 OF 2019
IN
STAMP NO. 8125 OF 2019
Ramvilas Surajbali Yadav & Anr. .. Plaintiffs
Versus
Premkumar Chandrabhan Yadav & Ors. .. Defendants
Appearances :
Mr. Altaf Khan a/w Adv.Seeta Yadav, Ld. Adv. for plaintiff present.
Mr. Ishan Srivastava, Ld. Adv. for defendant no.1 and 5 present.
Mr. Jipnesh N.Jain for defendant no.3 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 07.08.2019
1. The plaintiff has filed instant suit for injunction restraining
the defendants or their servants, agents, representatives or anyone
acting under them from causing nuisance, breach of peace,
disturbing peaceful possession, occupation of residence Room No.
206, Ground Floor, Opp. Irani Chawl, Sewri Cross Road, Railway
Gate No. 6, Wadala (West), Mumbai – 400 031 without following
due procedure of law. (hereinafter shall be referred to as “suit
property”).
2. It is contended by the plaintiffs that he alongwith his brother
viz. Ramchandra @ Chandrabhan Surajbali Yadav were residing in
the suit property. On 28.05.2005, they have entered into
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Agreement, whereby, they have mutually decided that the parties
will have possession of Commercial Shop premises rotationwise
for 2 years commencing from 01.06.2005 to 30.05.2007, the
aforesaid arrangement shall be continued till lifetime. It was
further decided between them that the person would be in
possession of Commercial Shop shall reside on the First Floor
premises of the suit shop whereas, the person who is not in the
possession of Commercial Shop shall have right to reside on the
Ground Floor of the suit shop.
3. It is contended by the plaintiff that on 27.10.2018, the
defendant no. 1 to 3 quarrel with them on the issue of possession
of the suit property. In the meantime, the plaintiffs came to know
that their names were removed from the Ration Card and
Electricity Bill therefore, the plaintiffs took appropriate steps to
seek the necessary documents.
4. It is further contended by the plaintiffs that on 10.04.2019,
the defendant no. 4 and 5 quarrel with the wife of the plaintiff no.
2 and Hurlled abuses.
5. It is further contended by the plaintiffs that on 12.06.2019,
the defendant no. 1 to 3 made false complaint with RAK Marg
Police Station. The defendant no. 2 again on 14.07.2019 quarreled
with the plaintiffs and he threatened them to dispossessed from
the suit property. Therefore, the plaintiffs constrained to file
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NM 3026 of 2019 in
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3 Date : 07.08.2019
instant suit alongwith the Notice of Motion for grant of Temporary
injunction.
6. The plaintiffs served to the defendants. The defendant no. 3
filed reply to the Notice of Motion. It is contended by the
defendant no. 3 that the suit as framed by the plaintiff is not
maintainable. Plaintiffs did not seek declaration of his right, title
and interest in the suit property. Therefore, the suit simplicitor for
injunction is not maintainable. In support of his contention,
defendant no. 3 has relied on the judgment of Hon'ble Apex Court
in Civil Appeal No. 8241 of 2009 in case of Jharkhand State
Housing Board V/s. Didar Singh & Anr.
7. It is further contended by the defendant no.3 that his father
namely Ramchandra @ Chandrabhan Yadav is the occupant of the
suit property. The plaintiff never in possession of either first floor
or of ground floor of the suit property. The advocate for
defendant no. 1 and 5 also opposed the Notice of Motion and
prayed for dismissal of the Notice of Motion.
8. Heard all the parties. Perused Notice of Motion, reply and
documents filed on record by the parties. Upon perusal of the
same following points arise for my determination.
POINTS FINDINGS
1. Whether the plaintiffs have made out
primafacie case to grant temporary in
junction in their favour?
YES
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4 Date : 07.08.2019
2. Whether the balance of convenience
lies in favour of the plaintiffs?
YES
3. Whether the plaintiffs would suffer
irreparable loss if the temporary injunc
tion is refused, which could not be
compensated in terms of money?
YES
4. What Order? Notice of Motion is allowed.
REASONS
AS TO POINT NOS. 1 TO 4 :
9. The plaintiffs in order to support their contention hs relied
upon the Affidavit dated 28.05.2005 which was appeared to be
executed by the brother of plaintiff no. 1 namely Ramchandra @
Chandrabhan Yadav. On perusal of the aforesaid Affidavit, it
appears that said Ramchandra @ Chandrabhan Yadav mentioned
that the plaintiff is residing alowingwith him in the suit property.
He gave no objection for issuuance of separate Ration card.
Further plaintiffs are relying on the Memorandum of
Understanding which is executed on 28.05.2005 by which
arrangements to run the commercial shop as well as to reside in
the suit property has been affected between the parties. The
defendants denied the execution of the said documents, on the
contrary defendants alleged that, the aforesaid documents are
bogus documents.
10. In my view, the aforesaid documents are of year 2005 which
is quit impossible to fabricate to secure the injunction in favour of
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the plaintiffs. Primafacie, the aforesaid documents shows that the
plaintiffs and his brother Ramchandra @ Chandrabhan Yadav
were in joint occupation and possession of the suit property.
11. The plaintiffs in order to show their possession of the suit
premises, also filed Electrol list of 1995, 2002, Election Card 2007,
Driving License, Ration Card, HP Gas Card, Aadhar Card which
primafacie shows the residence of plaintiff at suit property.
Plaintiff is not claiming right, title and interest of the suit property
rather he Is claiming that he should not be dispossessed without
following due procedure of law.
12. In my view, the aforesaid document primafacie point out
possession of the plaintiff over the suit property. Hence, in my
view, the plaintiffs have made out primafacie case. In the event,
if the plaintiffs are not protected, they would suffer irreparable
loss. Hence, in my view, plaintiffs are entitled for relief of
temporary injunction. Thus, I proceed to pass the following order.
ORDER
1. Notice of Motion No. 3026 of 2019 is hereby allowed in
terms of prayer clause.
2. Defendants, their agent servant or anyone claiming through
them are hereby temporarily restrained from disturbing
peaceful possession of the plaintiff in suit property, till
decision of the suit.
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3. Parties to bear their own cost till the disposal of the suit.
4. Notice of Motion No. 3026 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 07.08.2019 Greater Mumbai
Dictated on : 07.08.2019
Typed on : 07.08.2019
Draft Submitted on : 07.08.2019
Checked on : 09.08.2019
Signed on : 09.08.2019
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NM 3026 of 2019 in
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7 Date : 07.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09/08/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
07/08/2019
JUDGMENT/ORDER signed by P.O.
on
09/08/2019
JUDGMENT/ORDER uploaded on 09/08/2019
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