Interim Order 3

Order Details: Order on Exhibit
Pdf Text: 1 RAD1962021Exh8.odt
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT 8
IN
R.A.D. SUIT NO.196 OF 2021
(CNR : MHSCA30003862021)
Smt. Kanchan V. Parekh … Plaintiff
V/s
Katra & Sons and ors. ... Defendants
Coram : S. D. Chavan,
Judge, C.R.No.37 (B.B.),
Date : 13.08.2021
ORDER :
This is an application filed by the plaintiff for injunction
and direction to defendants to accept the rent amount from the
plaintiff or in the alternative the plaintiff be permitted to deposit the
rent including arrears in this Court. The said application is filed
under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, 1908.
2. The facts in nutshell are as under :
According to the plaintiff, he has filed suit for declaration
and injunction. According to her, she is tenant of the suit premises.
Defendants are owners. Defendant No.1 started harassing to her after
the association of tenants of Katra Bhavan representing the tenants of
which she is also member, made complaint against the illegal
activities of defendant No.1 before Police, BMC authority and the
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Courts. The defendant No.1 is now as an act of revenge disputing her
tenancy in respect of suit premises and further denying and declining
her claim for the suit premises as bonafide tenant. Defendant No.1 is
also challenging her and her family safety. Defendant is also not
accepting the rent of suit premises. Earlier for some period court
Receiver was accepting the rent with effect from 01.01.2018.
3. It is further contended that the conduct of defendant
No.1 it is truly clear that he is planning to deprive the plaintiff and
another tenants of Katra Bhavan of their rights to continue to occupy
the premises by various methods by endangering it and demolishing
that building. It is further contended that defendant No.1 by refusing
to accept the rents from the plaintiff, have a mischievous intention
and it is conspiracy to claim that plaintiff is violating obligation in the
lease rent / deed.
4. It is further contended that defendant No.1 had issued
an eviction notice on false ground against plaintiff and other tenants.
Defendant No.1 has also put banners and notices around the building
falsely claiming that the building is in dangerous condition and that
the tenants should vacate the building. Despite the several
approaches and request by plaintiff and other tenants, defendant
No.1 is refusing to accept the rent. It is further contended that
plaintiff is senior citizen and also suffering from old age illness. It is
further contended that defendant landlord is indulging in issuing
various threats including of demolition of building and alienation of
the possession of the suit premises. According to her, she is entitled
for adinterim relief because of strong prima facie case. Balance of
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convenience lies in her favour. If injunction not granted, she will
suffer irreparable loss which cannot be compensated in terms of
money. Hence, this application.
5. Defendant Nos.1A and 1B to 1F as well as defendant
No.3 have filed their written statements seprately. They have denied
all the contentions of plaintiff. In short, it is their case that one Suit
No.1719/2004 was filed before Hon'ble Bombay High Court
(ordinary original civil jurisdiction). In that suit, order of Court
Receiver was passed. The Court Receiver is accepting rent from the
tenants. One suit is pending in Hon'ble City Civil Court for partition.
The plaintiff's suit is not maintainable in law. This court has no
jurisdiction to entertain, try and disposed off the present suit. Plaintiff
has suppressed material facts. Hence, it is prayed that application be
rejected.
6. Considering the pleadings of the parties, following points
arise for consideration and I have recorded my findings thereon for
the reasons stated below :
POINTS FINDINGS
1) Whether plaintiff has primafacie
case ? No.
2) Whether balance of convenience lies
in favour of plaintiff ? No.
3) Whether plaintiff will suffer
irreparable loss if injunction is not
granted ?
No.
4) What order and decree? Application stands
rejected with no costs.
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R E A S O N S
7. Heard both sides for sufficient length and time. With the
assistance of both the advocate, I have gone through the record of the
case.
8. Learned advocate for the plaintiff submitted that he has
not pressing prayer clause (a) and (b). He is only pressing for prayer
clause (c). He submitted that plaintiff is tenant of the suit premises.
Defendants are landlords of the suit premises. Defendants have
previously accepted the rent. He drawn my attention to the rent
receipt. Thereafter, he has deposited rent to the Court Receiver. Now,
the Court Receiver is not accepting the rent. Hence, he approached
before this Court for the relief mentioned in the application.
Accordingly he prayed for allowing the application.
9. Learned advocate for the defendant Nos.1A and 1B to 1F
submitted that plaintiff has suppressed material facts. There is order
of Hon'ble High Court for appointment of Court Receiver and
accordingly Court Receiver is accepting the rent from the concerned
tenants. There is no evidence on record to show that the Court
Receiver is refusing to accept the rent from plaintiff. It is further
contended that in Hon'ble City Civil Court, plaintiff has approached
for the same relief. It is further contended that no prima facie case is
made out. Balance of convenience lies in favour of defendants. If
application is allowed then, there will be contempt of the Hon'ble
High Court. It is further submitted that application is bereft of any
reason. Hence, application may be rejected.
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AS TO POINT NO.1 TO 3:
10. All these points are interconnected with each other and
hence, to avoid the repetition, I am going to decide all these points
simultaneously.
11. Admittedly, plaintiff has waived prayer clause (a) and
(b). He has only pressed prayer clause (c) of the application.
Admittedly, Court Receiver is appointed by the Hon'ble High Court.
There is no evidence on record to show that Court Receiver is
declined to accept the rent from the plaintiff. In Hon'ble City Civil
Court, though the plaintiff is not party, he has approached before the
Hon'ble City Civil Court for the same relief as mentioned in prayer
clause (c) of the application. Under the circumstances, it is
impermissible for this Court to direct the defendants to accept the
rent from plaintiff or in the alternative, the plaintiff be permitted to
deposit the rent including arrears in this Court. No prima facie case is
made out. Balance of convenience lies in favour of defendants. If
prayer clause (c) is granted, then, there will be contravention of the
order of the Hon'ble High Court. Accordingly, I answer point Nos.1 to
3 in the negative.
AS TO POINT NO.4 :
12. In view of my negative findings to point Nos.1 to 3,
application deserves to be rejected. Accordingly, I make following
order :
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ORDER
1. Application Exh.8 stands rejected.
2. Costs in main cause.
(S. D. Chavan)
Judge, C.R.No.37 (B.B.)
13.08.2021
Dictated on : 13.08.2021
Checked & signed on : 13.08.2021
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