Interim Order 5

Order Details: Order on Exhibit
Pdf Text: 1
IN THE SMALL CAUSES COURT AT MUMBAI
( BANDRA BRANCH )
ORDER BELOW EXHIBIT NO. 8
IN
R. A. E. SUIT NO. 160 OF 2022
C.N.R. NO. MHSCA3003942022
1. Mr. Reynold John Cabral & Anr. …Plaintiffs
Versus
Mr. Trilok Singh Mehta ...Defendant
Mr. T. R. Patel, Advocate for Plaintiffs.
Mr. Martis Clifford, Advocate for Defendant.
Coram : Shri K. M. Kayangude, Judge
Court Room No.38 (B.B.)
Date : 26.06.2023
ORDER :
. The present application is moved by the plaintiffs under
Order 39 Rule 1 of the Civil Procedure Code, 1908 for the relief
of interim injunction restraining defendant from creating any
third party interest or parting with the possession of the suit
premises. The plaintiffs also claimed the relief of temporary
injunction restraining defendant from carrying out any kind of
addition or alteration of construction work in permanent nature.
2. As per the plaintiffs, they are the owners and landlords of
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the suit premises. The defendant is a tenant on the rent of
Rs.60/ per month. The defendant in year 2012, subletted the
suit premises and on notice by the elder brother of plaintiff No.1,
the defendant agreed to remove the person from the suit premises
who was inducted by subletting. It is further asserted by the
plaintiffs that defendant has made illegal and unauthorized
construction of first floor. The B.M.C. has also issued notice
under Section 354 of M.M.C. Act. The defendant is also
intending to transfer the suit premises by creating third party
interest. Therefore, plaintiffs constrained to file present eviction
suit. Therefore, till the decision of dispute between the parties, it
is better to restrain the defendant by passing interim order as
mentioned above.
3. The plaintiffs further asserted that appointment of the
Court Commissioner for the inspection of suit premises is also
essential. The defendant has made several additions and
alterations in the suit premises which are in permanent nature.
Therefore, to find out actual and factual position of the suit
premises, appointment of Court Commissioner is essential.
Accordingly, plaintiff sought relief of interim injunction as well as
the appointment of Court Commissioner.
4. The defendant contested the present application by filing
his say vide Exh.19. As per the defendant, the present plaintiffs
are the fake persons, who have filed false and fabricated
injunction application. The property is owned by Airport
Authority of India. There is no tenancy agreement between the
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present plaintiffs and defendant. The tenancy agreement was
made between Christopher Cabral and present defendant.
Therefore, the plaintiffs are not landlords of defendant. The
defendant also denied that he is subletted the suit premises.
There is no cause of action against the defendant. The defendant
has not made addition or alteration of permanent nature. The
defendant was only doing some internal work regarding the some
wall scratches. The B.M.C. issued notice under Section 354 of
M.M.C. Act. It is nowhere mentioned that the defendant has
made construction of second floor. Therefore, the application of
injunction is wrong. Accordingly, defendant prayed to reject the
injunction application.
5. By considering the rival averments of the parties, following
points arise for my determination to which I record my findings
for the reasons stated as follows.
POINTS FINDINGS
1) Do the plaintiffs prove prima
facie case in their favour ?
.. In the partly
affirmative.
2) Do the plaintiffs prove that the
balance of convenience lies in
their favour ?
.. In the partly
affirmative.
3) Do the plaintiffs prove that
irreparable loss will cause to
them, if the injunction is
refused ?
In the partly
affirmative.
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4) Is the plaintiffs entitled to the
relief of appointing Court
Commissioner as prayed ?
.. In the negative.
5) What order? .. As per final order.
REASONS
AS TO POINT NO. 1 :
6. The plaintiffs claim that they are the owners and landlords
of the suit premises of which the defendant is tenant. The
defendant denied the said fact. As per the defendant, Christopher
Cabral is the owner and landlord of the suit premises. It is not in
dispute that the defendant is tenant in the suit premises. It is a
matter of fact that after the issuance of notice by the B.M.C.
under Section 354 of M.M.C. Act, the defendant filed L.C. suit in
the court of Bombay City Civil, Dindoshi. In that suit, the
defendant specifically pleaded that he was inducted as a tenant
by Archie Cabral and brothers in the year 1980. Moreover, the
defendant himself produced on record documents along with list
Exh.29. The General Power of Attorney and Sale Deed discloses
that the plaintiff No.1 along with his other family members has
dealt with property of which suit premises is one of the part.
Therefore, prima facie it appears that plaintiff No.1 is the owner
of the suit property.
7. The plaintiffs produced on record copy of the notice issued
by the B.M.C. disclosing that B.M.C. ordered to stop the execution
of the construction work. No doubt, the defendant challenged the
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said notice before the Hon'ble Bombay City Civil Court at
Dindoshi. Whether the construction made by the plaintiffs is
addition and alteration of permanent nature needs to be decided
on merits but the material on record prima facie discloses that
defendant is making construction work. Therefore, the plaintiffs
prima facie made out the case in respect of construction work of
the suit premises on behalf of the defendant. Therefore, for that
purpose, plaintiff established prima facie case in their favour.
8. The plaintiffs also claim that the defendant is trying to sub
let the suit premises and threatening to create third party interest.
At the outset, it is worthwhile to mention that one of the main
ground for the present eviction suit is subletting of the suit
premises. Therefore, whether the suit premises is subletted or
not can be decided at the time of decision of the suit. In such
circumstances, I am of the opinion that plaintiffs failed to made
out prima facie case in order to seek injunction order restraining
defendant from parting with possession or creating third party
interest. In the result, plaintiffs only established prima facie case
in respect of relief of construction work. Hence, point No.1 is
answered in the partly affirmative.
AS TO POINT NOS. 2 AND 3 :
9. The plaintiffs prima facie established title of the plaintiff
No.1 over the suit premises. The plaintiffs are also successful in
establishing prima facie that the defendant is making the
construction. Therefore, if the interim injunction is refused then
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there is a chance of further construction by the defendant. It will
change the nature of the suit premises and also will create
further complications. Therefore, irreparable loss will cause to
the plaintiff, if the injunction is refused in respect of construction
work only. Naturally, the balance of convenience tilts in favour of
the plaintiffs on that point only. Hence, point Nos. 2 and 3 are
also answered in the partly affirmative.
AS TO POINT NO. 4 :
10. By way of present application, the plaintiffs also prayed the
appointment of the Court Commissioner under Order 26, Rule 9
of Civil Procedure Code for the local inspection. As per the
plaintiffs, in order to find out the illegal work of construction, the
inspection of suit premises is necessary. At the outset, it is
material to note that it is one of the main ground raised by the
plaintiffs that defendant has made construction which leads to
addition and alteration in permanent nature. Therefore,
considering the nature of disputes, it appears that the plaintiffs
are seeking collection of evidence by way of appointment of
Court Commissioner. It is settled position of law that the Court
Commissioner can not be appointed for the collection of evidence.
Hence, the prayer of the plaintiffs to appoint the Court
Commissioner for the local inspection deserves to be rejected.
Hence, point No.4 is answered in the negative.
AS TO POINT NO. 5 :
11. The plaintiffs established prima facie case, balance of
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convenience and irreparable loss in case interim injunction is
refused in case of construction of work. Therefore, in order to
preserve the suit premises as it is, the plaintiffs are entitled for
relief of interim injunction restraining defendant from making
construction of addition or alteration in permanent nature. The
other reliefs claimed by the plaintiffs needs to be rejected. Hence,
the following order :
ORDER
1. The application Exh. 8 is hereby partly
allowed.
2. The defendant is hereby temporarily restrained
from making any construction of addition or
alteration in permanent nature till the decision
of the present suit.
3. The other prayers of injunction and
appointment of Court Commissioner stands
rejected.
( Dictated and pronounced in open court.)
( K. M. Kayangude )
Date : 26.06.2023 Judge, C. R. No.38
Order dictated on : 26.06.2023
Order checked & signed on : 26.06.2023
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