Final Order 2

Order Details: Other
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
ORDER ON PRELIMINARY ISSUE
I N
S. C. SUIT NO.2846 OF 2019
(CNR NO.MHCC010112862019)
Shafi K. M. ..Plaintiff
V/s.
Shankar Rajaram Bairi (Bhairu) & others ..Defendants
Appearance :
Adv. L. K. Tripathi for plaintiff.
Adv. Archit Manurkar for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 05/12/2022.
ORDER ON PRELIMINARY ISSUE
1 The plaintiff has filed this suit against the defendants for
grant of permanent injunction. The subject matter of the suit is
described as below :
Gala No.1 and 2 admeasuring 1800 sq. ft. built up,
situated on the 1st floor of the building known as
Rajaram Niwas, standing on the plot of land bearing
C.T.S. No.23/9, AndheriGhatkopar Link Road,
Sakinaka, Mumbai – 400 072.
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2 The plaintiff has come with the case that the defendants
are the owner of the suit premises and plaintiff took the suit premises
for carrying business. In this regard, MOU dated 15/04/2015 was
executed by defendants in favour of plaintiff for the suit property
which was given to the plaintiff for a period of 10 years and plaintiff
paid the sum of Rs.5,00,000/ to the Defendant No.3. After taking the
suit property from the defendants, the plaintiff has made a huge
expense to the tune of approx. Rs.20,00,000/ for renovation of suit
property so as to make it fit for hotel business. He also obtained license
under Shop Act and the certificate of establishment. The plaintiff is
paying electricity charges of the suit premises and also opened a
current account in the name of his Hotel business i.e. M/s. Hotel Accore
Inn. He is also paying GST and telephone bill and is peacefully
carrying the business. The hotel business of the plaintiff became
popular in the area and vicinity, therefore, the defendants have now
developed their dishonest intention to oust and throw away the
plaintiff and on 30/10/2019 suddenly, Defendant No.3 and 4 with
other associate appeared in the suit premises and manhandled the
employees of plaintiff. Therefore, the plaintiff have filed a complaint
before the police station in this regard. It is his further contention that
defendants with malafide intention entered into an agreement dated
15/07/2017. They want to dispossess the plaintiff from the suit
premises, thus, he is claiming that MOU dated 15/04/2015 executed in
his favour is valid and defendant cannot dispossess the plaintiff from
the suit property. Lastly, he is praying for interim injunction restraining
the defendants from dispossessing from the suit premises without
following due procedure of law.
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3 In response of suit summons, the defendants appeared and
filed the written statement vide Exh.03, denying the contentions of the
plaintiff. He took specific objection that this court has no jurisdiction to
try and decide the suit and the plaintiff is his tenant. He has filed a suit
before the Ld. Small Causes Court for recovery of possession. He
pointed out that the agreement executed between the plaintiff and the
defendants is regarding leave and license agreement. Lastly, he prayed
for dismissal of the suit.
4 Having regard to the rival contention, I have framed issues
vide Exh.05 and as per the order passed in roznama dated
21/07/2022, directed that the Issue No.3 should be tried as
preliminary issue as per the provisions of Order 14 Rule 2 Clause (b) of
Code of Civil Procedure.
5 Heard rival parties on the preliminary issue. Considering
the pleadings and documents on record, upon hearing I have recorded
the findings on the preliminary issue given there under.
Sr. No Preliminary Issue Finding
1 Whether this Court has jurisdiction
to try this suit ?
Negative
2 What order As per final order
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Reasons
6 On going through the plaint, documents and the written
statement, it reveals that the MOU was executed between the plaintiff
and the defendants. The copy of the same is annexed with the plaint at
Annexure B, in which it is clearly mentioned that the plaintiff is the
licensee and it is an agreement regarding leave and license of a
commercial premise i.e. suit property. The averments of the agreement
clearly shows that there is an agreement regarding leave and license
executed by the plaintiff and defendants in the year 2017. Thus, it is
crystal clear that the plaintiff is the tenant in the suit property. It is the
contention of plaintiff that the defendants are intending to dispossess
without following due procedure of law, whereas the defendants are
claiming that they have already adopted procedure of law for the
eviction of plaintiff from the suit property.
7 The counsel of plaintiff has submitted that if the plaintiff
has given assurance of following due procedure that will suffice.
However, it is being a dispute between the tenant and landlord, this
court has no jurisdiction to pass any order. At the stage of argument,
the counsel of plaintiff submitted that instead of dismissing of the suit,
the plaint be returned to the plaintiff and further requested that parties
may be directed to appear before the Ld. Small Causes Court by fixing
a particular date. The counsel of defendant have consented for fixing of
the date for appearance before the Ld. Small Causes Court, thus,
considering the rival submissions, I am of the view that as the suit is
between the tenant and landlord and only the Ld. Small Causes Court
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have jurisdiction to try and decide the said suit, either parties may
claim the relief in this regard. Therefore, I answer the preliminary issue
in the negative.
8 Considering the rival submissions regarding return of
plaint and fixing of date. It will be just and proper that the plaint be
returned to the plaintiff for its presentation before the Ld. Small Causes
Court and also fix a particular date for appearance of parties. Hence, I
proceed to pass the following order.
O R D E R
1 Plaint in S. C. Suit No.2846/2019, be returned to the
plaintiff for its presentation before the Ld. Small Causes
Court under order 7 rule 10 of Code of Civil Procedure.
2 Rival parties are directed to appear before the Ld. Small
Causes Court on 30/01/2023 as per the provisions of
Order 7 Rule 10A clause (2) of Code of Civil Procedure.
3 Pending Notice of Motions, if any, stand disposed off in
terms of return of plaint.
4 Suit is disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Gr. Bombay.
Date: 05/12/2022. C.R. No.03
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Dictated on : 05/12/2022.
Transcribed on : 05/12/2022.
Signed by HHJ on :
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“Certified to be true and correct copy of the original signed order”.
06/12/2022
at about 01.00 p.m.
(Ms. Vidya Abhijit Mande)
Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 05/12/2022
Order signed by Hon'ble Judge on : 06/12/2022
Order uploaded on : 06/12/2022
at about 01.00 p.m.
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