Final Order 2

Order Details: Copy of Judgment
Pdf Text: MHSCA30003582022 Presented on : 19.03.2022
Registered on : 30.04.2022
Decided on : 01.10.2025
Duration : 02 years 06 months 12 days
IN THE COURT OF SMALL CAUSES, AT MUMBAI
(APPELLATE BENCH)
(BANDRA BRANCH)
MISC. APPEAL NO. 76 of 2022
IN
EXHIBIT-10
IN
L. E & C SUIT NO.117 OF 2021
Mr. Kiran Babubhai Zaveri,
of Mumbai, adult, Indian Inhabitant, aged
about 57 years, Occ: Business
residing at Flat no.504, C-Wingh, Acharya
Ashram Co-operative Housing Society
Ltd., Opp. Abhay Society, M. K. Road,
Borivali (West), Mumbai-400 092
Appellant/
(Org. Plaintiff)
..Versus...
Mrs. Kishori Jaswant Mehta
of Mumbai, adult, Indian Inhabitant, aged
about 80 years, Occ: Housewife
residing at Flat No.2, Ground Floor
Kailash Apartments Co-operative Housing
Society Ltd., Plot No.75-A, TPS-III, 1st Road,
Golibar road, Santacruz (East),
Mumbai-400 055.
Respondent
(Orig. Defendant)
Advocate Mr. Rajmani P. Dwivedi for appellant.
Advocate Mr. Suryakant K. Pise for respondent.
Coram : Shri Ashish A. Ayachit,
Addl. Chief Judge
&
Shri D. R. Mali, Judge.
C.R. No. 41 (B.B.)
Date : 1st Day of October, 2025
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JUDGMENT : (Per Shri Ashish A. Ayachit, Addl. Chief Judge)
The Plaintiff being aggrieved and dissatisfied with the
impugned order passed below Exhibit-10 in L. E & C Suit No.117 of
2021 dated 10.02.2022 by the Court of Small Causes (C. R. No.34 B.B)
rejecting his application for temporary injunction under Order XXXIX
Rule (1) and (2) of the Code of Civil Procedure, 1908 restraining the
defendant from parting with possession of the suit premises and
creating third party interest therein and also restraining the defendant
from entering into an agreement transaction with the society and
developer in respect of the suit premises.
2. We have referred the parties by their original nomenclature
as they stood before the learned trial court. The appellants herein is
original plaintiff and respondent is original defendant before the Trial
Court.
3. We have heard learned advocate Mr. Sunil Pandey for
appellant/original plaintiff. Nobody appeared for respondent.
4. Mr. Sunil Pandey for appellant/original plaintiff submitted
that the plaintiff and the defendant are siblings, and that the suit
premises was purchased by the plaintiff pursuant to an agreement dated
23.10.1980. Accordingly, the plaintiff is the rightful owner of the suit
premises. It was further submitted that the defendant, being the sister
of the plaintiff, was permitted to occupy the suit premises purely as a
gratuitous licensee, without any legal right, title, or interest in the
property. He brought to our attention that the suit premises is located
within the Kailash Apartments Co-operative Housing Society Ltd., which
is currently undergoing the process of re-development. In light of this,
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he submitted that the present application has been filed to restrain the
defendant from parting with possession of the suit premises to any third
party, or from entering into any agreement with the developer. He
therefore contended that the impugned order is erroneous, contrary to
law, and liable to be set aside in appeal.
5. Upon hearing the learned advocates for defendant and
plaintiff, following points arise for our determination and we have
recorded our findings thereon for the reasons given below.
Sr. No. POINTS FINDINGS
1. Whether plaintiff proves prima facie case in
his favour?
No
2. Whether balance of convenience lies in favour
of plaintiff?
No
3. Whether irreparable loss would be caused to
the plaintiff if injunction is refused?
No
4. Whether the impugned order passed by the
learned trial court is proper, legal and
correct ?
Yes.
5. Whether interference of this court is required
in the appeal ?
No
6. What order and decree ? The appeal is
dismissed as
per final
order.
REASONS
AS TO POINTS NO. 1 TO 5:
6. The present suit has been filed for eviction and
compensation in respect of Flat No.2, situated on the ground floor of
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Kailash Apartments Co-operative Housing Society Ltd., Plot No.75-A,
TPS-III, 1st Road, Golibar Road, Santacruz (East), Mumbai – 400 055.
The plaintiff has contended that he is the sole owner of the suit
premises, having paid the entire consideration amount at the time of
execution of the Agreement for Sale dated 23.10.1980, pursuant to
which he obtained possession. However, the plaintiff has stated that the
original agreement is currently untraceable and not in his custody. The
plaintiff’s case is that the defendant is his married sister, whose first
husband passed away, and that she subsequently remarried. Due to lack
of alternate accommodation, and out of love and affection, the plaintiff
permitted the defendant to reside in the suit premises as a gratuitous
licensee. It is further pleaded that the society in which the suit premises
is situated is undergoing re-development, and in light of the same, the
present application has been filed seeking appropriate reliefs.
7. The defendant has filed her written statement opposing the
suit and the interim application. She has claimed that the suit premises
forms part of the joint family property and that a family arrangement
had been arrived at among all family members, under which the suit
premises was allotted to her. She further submitted that a partition suit
bearing S.C. Suit No. 9455 of 1991, filed by one brother, namely Rohit
Zaveri, is pending before the City Civil Court, Mumbai. In view of the
pending partition suit and the nature of the dispute, she contends that
no case for grant of injunction has been made out by the plaintiff.
8. We have carefully perused the impugned order passed by
the learned Trial Court and do not find any error or infirmity in the
reasoning adopted or the conclusion arrived at. The learned Trial Judge
has rightly taken note of the fact that the suit for partition is sub judice
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between the parties, and it is undisputed that the suit premises is part
and parcel of the subject matter in the said partition suit. There has
been no formal partition of the estate of the deceased father, Babubhai
Zaveri. Moreover, at the time when the suit premises was allegedly
purchased, the plaintiff was a minor and had no independent source of
income. It is, therefore, prima facie probable and acceptable that the
property was purchased by the deceased father in the name of his son
(the plaintiff), possibly for the benefit of the joint family.
9. The jurisdiction of the Court of Small Causes is limited to
determining disputes between landlord and tenant or licensor and
licensee. To invoke such jurisdiction, it is necessary to establish, at least
prima facie, the existence of a licensor-licensee relationship. In the
present case, the plaintiff and defendant are siblings, and there is
material to suggest that the property was, in fact, purchased by the
father in the name of the plaintiff. Furthermore, the suit property is the
subject matter of the pending partition suit and is also under challenge
in a First Appeal before the Hon’ble High Court. In such circumstances,
we are of the view that the plaintiff has failed to establish a prima facie
case warranting the grant of an injunction.
10. With regard to the irreparable loss, it is relevant to note
that the property is undergoing re-development. Even if such re-
development takes place, the respective rights and interests of the
plaintiff and defendant would remain subject to the final adjudication
and outcome of the pending partition suit. Hence, no prejudice or no
irreparable loss or prejudice would be caused to the plaintiff in the
absence of an injunction.
11. Moreover, the balance of convenience does not lie in favour
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of the plaintiff, particularly when the partition suit is pending and the
alleged licensor–licensee relationship is prima facie not established. In
view of the above reasons, we find no illegality or infirmity in the
impugned order. The order is proper, legal, and does not warrant any
interference. Therefore, we answer point Nos. 1 to 5 accordingly.
AS TO POINT NO. 6:
12. In view of aforesaid findings, appeal fails. So far as cost of
appeal is concerned, we think it proper to leave the parties to bear their
costs of the proceeding. Therefore, we record the finding of point No.6
accordingly and pass the following order.
ORDER
(1) Appeal is dismissed.
(2) The impugned order passed below Exhibit-10
in L. E & C Suit No.117 of 2021 dated
10.02.2022 passed by Small Causes Court,
Bandra Mumbai (Court Room No. 34, B.B.) is
confirmed.
(3) Parties to bear their own costs.
(4) Notify the judgment to the learned Trial Court.
(Judgment dictated in open court in between 02.50 p.m to
3.10p.m)
I Agree,
(D. R. Mali) (Ashish .A. Ayachit)
Judge Addl. Chief Judge,
C.R. No. 41 C. R. No. 41
01.10.2025 01.10.2025
Judgment dictated on :01.10.2025
Judgment transcribed on : 01.10.2025
Judgment checked & signed on : 01.10.2025
/home/pa31/Varsha Wankhade/A. A. AAyachit/October-2025/Appeal/76-2022 Appeal M .odt
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