Order 2

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
EXH. 9
IN
L.D. SUIT NO. 46 OF 2022
(CNR-MHSCA-3000367-2022)
Mr. Soham S/o. Laxman Shirke @ Somnath
S/o. Laxman Shirke ...Plaintiff
Versus
1. Mrs. Neetu Parshotam Bitra & anr. ...Defendants
Mr. A.M. Saraogi, learned Advocate for the plaintiff.
Mr. S.A. Shaikh, learned Advocate for defendant.
Coram: P. K. Kharate,
Judge, C. R. No. 35,
Date: 15th October, 2022.
ORAL ORDER:
1. The present application is filed by the plaintiff seeking
interim relief against the defendant.
Facts of the present application are as under:-
2. The plaintiff has filed this suit for permanent injunction
restraining the defendants, their agents, servants and /or any other
person or persons claiming through or under them from any manner
disturbing the plaintiff 's peaceful use, occupation and possession of
the suit premises.
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3. The plaintiff averred in the plaint which is part and parcel
of the application that as per the two leave and licence agreements the
defendant No.1 and defendant No.2 handed over the possession of the
suit premises from 26.4.2019 and 4.5.2019 for three years to the
plaintiff. But, defendants are taking law in their hands and are trying
to disturb the possession of the plaintiff and interfere in the business
of the plaintiff. Hence, it is just and necessary to pass appropriate
order that pending the hearing and final disposal of the present suit,
the court be pass temporary order and injunction restraining the
defendants.
4. Say filed by the defendants vide Exh.14 stating that
plaintiff was allowed to use and occupy the premises on leave and
licence basis. But, plaintiff has not paid licence fees new about 28
Lakh. Moreover, plaintiff has vacated the suit premises on 5.3.2022.
Moreover, the terms of the leave and licence agreement expired on
20.5.2022. The defendants have already lateron handed over the suit
premises to the third party by leave and licence agreement dated
27.3.2022 to PavanKumar Poojari. Hence, prayed to reject the
application.
5. Heard both the sides at length. The advocate for plaintiff
argued that
6. Following points arise for my determination. I have given
my findings thereon for the reasons stated as follows:-
Sr. no. Points Findings
1 Whether the plaintiff has
prima
facie case ?
In the negative
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2 Whether the balance of
convenience lies in favour of
plaintiff ?
In the negative
3 Whether plaintiff would suffer
irreparable loss, if the injunction
sought is not granted ?
In the negative
4 What order ?
The application
is rejected as per
final order.
:: R E A S O N S ::
As to Point Nos. 1 to 3:-
7. All these points are interlinked and inter connected with
each other, therefore, taken for consideration at once their convenient
discussion and to avoid repetition.
8. In the present case, on perusal of the documents, it appears
that there some subsequent facts filed by the defendant.
9. The most important fact which is at Exh-C annexed with the
list of documents of the defendant. On perusal of Exh.-C it appears
that the plaintiff has handed over the possession of the suit premises to
the defendant on 5.3.2022. Moreover, on perusal of the another
document it appears that the defendant has handed over the possession
of the suit premises to the Pawan K. Poojari on 27.3.2022 in respect
of shop No.1150. But, on perusal of the para No.2 of the plaint it
appears that there is one shop between shop No. 1149 and 1150. And
there is no partition wall in between said two premises. It means the
plaintiff has handed over the entire suit premises to the defendant.
Moreover, on perusal of the photograph it appears that the defendants
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new licensee has open the another hotel in the name of Pawan Lunch
Home. Hence, it appears that there is no possession of plaintiff over
suit premises.
10. The advocate for plaintiff has also not argued on the said
handing over possession by the plaintiff to the defendant. It means the
possession is already handed over to the defendant after lapse of
licence period. Hence, plaintiff is not in possession over the suit
premises.
11. Hence, considering above discussions, there is no prima
facie case in favour of the plaintiff, the balance of convenience also
not lies in favour of the plaintiff. The irreparable loss will not cause to
the plaintiff, if T. I. is rejected as plaintiff has no possession over suit
premises. Hence, I have recorded findings on Point Nos. 1 to 3 in the
negative and pass the following order as to Point No. 4:-
: O R D E R :
1) Application below Exhibit-9 is rejected.
2) No order as to costs.
(Dictated and pronounced in Open Court.)
Bandra-Mumbai ( P. K. Kharate )
Date :15.10.2022 Judge, C. R. No.35
1. Order dictated on computer :15.10.2022
Order checked & signed on :15.10.2022
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