Order 7

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
Advocate for plaintiff : Mr. Amit Saple.
Advocate for defendant Nos.1(b) to 1(f) : Mr. Alok D. Pandey
Coram : S. S. Kadam,
Judge, C.R.No.37 (B.B.),
Date : 03.02.2023
ORAL ORDER :
This is an application filed by the plaintiff for pending
the hearing and final disposal of the suit, defendant No.1 and their
servants, agents, etc. be restrained by an order of permanent
injunction from interfering with peaceful use of the suit premises and
also for restraining defendants from parting with possession of the
suit premises or creating any third party rights in respect of suit
premises.
2. According to plaintiff, since 1983 she is residing in the
suit premises alongwith her family and she is legal tenant in respect
of the suit premises. The defendant No.1 started harassing to her
after the association of tenants of Katra Bhavan representing the
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tenants of which she is a member. Defendant No.1 is denying her
claim in respect of the suit premises. Defendant No.1 is trying to
deprive the plaintiff's right and tenants of Katra Bhavan to occupy the
premises by various methods and demolishing the building. The
defendant No.1 is intentionally refusing to accept the rent from
plaintiff. The defendant No.1 has issued an eviction notice to plaintiff
and other tenants. The defendant No.1 has also put banners and
notices around the building and falsely claiming that the suit building
is in a dangerous condition.
3. According to plaintiff, she is senior citizen and suffering
from old age illness. She is lawful tenant in respect of suit premises.
She is having prima facie case, balance of convenience and if this
application is rejected, she will suffer irreparable loss. Hence, prayed
that temporary injunction application be allowed as prayed.
4. The defendant No.1 has filed his reply below Exh.15.
Defendant No.1 has denied all contentions made in application. The
defendant Nos.1(a) to 1(f) have filed their written statement below
Exh.19. They have denied all contentions made in application.
According to defendants, present suit is not maintainable. The court
receiver is appointed in respect of entire building Katra Bhavan and
entire building is in custody of court receiver. So, the present suit is
not maintainable. The suit building is in dilapidated condition and
MCGM has issued notice under Section 354 of the MMC Act to the
occupants as well as owners of the suit building. The suit building has
been declared as C1 category and it needs to be vacated and pulled
down immediately. The plaintiff is well aware of the said fact about
the notice dated 07.07.2021.
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5. According to defendants, plaintiff has carried out
additions and alterations of permanent nature in suit premises
without consent and knowledge of the defendant No.1. The plaintiff
has converted 1BHK suit flat into 2BHK and damaged the balcony.
According to defendants, they are not aware that plaintiff is member
of association of tenants of Katra Bhavan. The defendants have
denied that they are planning to deprive the plaintiff or other tenants
of their alleged right to continue to occupy the premises by
demolishing the suit building. They have denied that they have
refused to accept the rent. Hence, prayed to reject the application.
6. On rival pleadings of both the parties, following points
arise for my determination for which I have recorded my findings
with reasons as stated below :
POINTS FINDINGS
1) Whether plaintiff has established prima
facie case in her favour ? In the Negative
2) Whether balance of convenience lies in
favour of plaintiff ? In the Negative
3) Whether plaintiff will suffer irreparable
loss or injury, if the interim injunction is
refused ? In the Negative
4) What Order ? As per final Order
R E A S O N S
AS TO POINT NO.1 TO 3:
7. Point Nos.1 to 3 are inter linked between each other.
Hence, to avoid repetition of facts, I have decided point Nos.1 to 3
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together.
8. I have heard the learned advocate for the defendants.
Plaintiff and her advocate are absent for argument. On perusal of
record, it appears that at one time, my learned predecessor has
decided Exh.8 on merits and passed order dated 13.08.2021. By an
order dated 13.08.2021 Exh.8 was rejected. Thereafter, plaintiff has
filed an application below Exh.21 for fresh hearing and for passing
fresh order on injunction application. The said application Exh.21
was allowed by an order dated 02.05.2022 and directions were given
to both parties to reargue on Exh.8 i.e. injunction application.
Hence, as per order dated 02.05.2022, I have decided this application
i.e. Exh.8.
9. I have heard the learned advocate for the defendants.
During the course of argument, the learned advocate for defendants
argued that suit building is demolished and same is not in existence.
10. In the present application, it is contention of plaintiff
that she is lawful tenant in respect of the suit premises and defendant
No.1 is harassing the plaintiff and defendant No.1 is planning to
deprive plaintiff from her rights to continue to occupy the premises
by demolishing the suit building. It is further contention of plaintiff
that defendant No.1 has now issued an eviction notice on false
grounds against her and other tenants and the defendant No.1 also
put banners and notices around the suit building claiming that the
suit building is in a dangerous condition.
11. As I already, I have stated that plaintiff and her advocate
is not present for argument. I have gone through record and
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proceeding of the present suit. There is no any evidence which shows
that defendant No.1 is trying to harass the plaintiff and defendant
No.1 has put banners and notices around the suit building. There is
no evidence on record to show that defendant No.1 has issued an
eviction notice to the plaintiff and tenants. It is settled principle of
law that for granting temporary order of injunction, party has to
prove prima facie case and balance of convenience. In the present
case, plaintiff has not proved prima facie case and also not proved
that balance of convenience is in her favour. I think, if this
application is rejected, no harm or prejudice will be caused to
plaintiff. Hence, I answered point Nos.1 to 3 in the negative and for
point No.4, I proceed to pass following order :
ORDER
1. Application Exh.8 is rejected.
2. No order as to costs.
[Dictated and pronounced in open Court].
(S. S. Kadam)
Judge, C.R.No.37 (B.B.)
03.02.2023
Dictated on : 03.02.2023
Checked & signed on : 03.02.2023
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