Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4899 OF 2019
(CNR NO.MHCC010134062019)
IN
S. C. SUIT NO.3329 OF 2019
Mr. Kisan Magan Waghela )..Plaintiff
V/s.
Mr. Suresh Gandhi and Ors. ).. Defendants
Appearances :
Ld. Adv. Babita Pandey for plaintiff.
Ld. Adv. Vidhyan Shet for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 06/10/2022.
ORDER
1 This notice of motion is taken out by the plaintiff
restraining the defendant No.1 & 2 from forceful shifting of the plaintiff
to another place with object to demolish the suit hutment. The plaintiff
has come out with the case that his grandmother Sundarabai was the
tenant in the suit hutment, belongs to the title of defendant No.3 and
paid rent regularly from 19671972. The defendant No.3 Trust did not
contact plaintiff's grandmother after 1972. It is his contention that his
grandmother continued uninterrupted, peaceful possession and plaintiff
is a third generation of enjoying the possession of suit hutment.
Defendant No.1 & 2 have redeveloped a particular portion of
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Dhanjibhai Ice Factory, which also includes the hutment of plaintiff. It
is his contention that defendant No.1 & 2 have agreed to execute an
agreement in the year 2004 and assured the plaintiff that very soon the
agreement would be executed in favour of the plaintiff. But, the
defendant No.1 & 2 in collusion played a fraud upon the plaintiff and
new flat allotted to defendant No.4. Thus, the plaintiff has great
apprehension of forceful eviction from the suit hutment by defendant
No.1 & 2 in collusion with defendant No.4. Therefore, prayed for
injunction.
2 Defendant No.2 resisted the contention by filing reply.
Defendant No.2 denied that the grandmother of plaintiff was the tenant
in the suit hutment. He adopted his written statement as reply to the
notice of motion. Defendant No.2 did not deny that he is redeveloping
Dhanjibhai Ice Factory, but, denied the contention of plaintiff. He
denied that the suit hutment is a part of redevelopment project and they
have executed an agreement in favour of plaintiff and prayed for
dismissal of the notice of motion.
3 Heard rival parties at length. Perused the record. It reveals
from the record that plaintiff has filed a copy of receipt of payment
made of up to month of February, 1972. There is no document to show
that for the post period from 1972, the plaintiff or his grandmother had
paid any rent to the defendant No.3. The plaintiff is relying on his
Election Card & Bill of Electricity in which his name is mentioned
having address of the suit hutment.
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4 To establish the prima facie case, it is incumbent on the
plaintiff to prove his legal possession. Even if, it is presumed that
Sandarabai was the tenant of the suit hutment belongs to defendant
No.3, there is no record to show that for the post period of February,
1972, she was the tenant of suit hutment.
5 The plaintiff is claiming the execution of draft agreement in
the year, 2004. The copy of agreement is filed on record. It is his
contention that defendant No.1 & 2 had agreed to execute the same,
but, later on avoided to execute. Now, the question is arisen, when the
promise was made in the year 2004 then, as to why the plaintiff kept
mum till 2019 i.e. after more than 14 years. Thus, filing of the suit
after 14 years of alleged promise by defendant No.1 & 2, appears to be
doubtful. The plaintiff is required to establish his contention by
adducing evidence. Hence, there is no prima facie case and balance of
convenience in his favour.
6 There is nothing on record to show that defendants have
ever used force against the plaintiff, except mere his words. In absence
of the proper documents and the affirmation by defendant No.3 that he
is a tenant, I found no substance in the contention of plaintiff. It is
pertinent to note that the name of defendant No.4 came to be deleted
as per the request of plaintiff as per Roznama dated 20/02/2021.
Hence, I am of the view that the plaintiff has no balance of convenience
in his favour. No irreparable loss will cause to the plaintiff.
Consequently, notice of motion is devoid by merits. Resultantly, I
proceed to pass the following order :
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ORDER
1. Notice of Motion No.4899/2019 in Suit No.3329/2019
is hereby dismissed.
2. Notice of Motion stands disposed off accordingly.
(Order dictated & pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 06/10/2022 C.R. No.03, Gr. Mumbai
Dictated on : 06/10/2022
Typed on : 06/10/2022
Signed on :
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“Certified to be true and correct copy of the original signed order”.
13/10/2022
at about 6.00 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 : 06/10/2022
Order signed by Hon'ble Judge on : 07/10/2022
Order uploaded on : 13/10/2022
at about 6.00 p.m.
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