Order 1

Order Details: Order on Exhibit
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CNR NO.MHSCA-30004312022
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.10
IN
R.A.E. SUIT NO.200 OF 2022
Mr. Kali Savak Suntoke . . Plaintiff.
Versus
Mr. Firoze Kaikhushroo Kanga . . Defendant.
Coram : A.S. Pandagle, Judge
C.R.No.32
Date : 28/7/2023.
ORAL ORDER :
1. This is an application filed by the plaintiff for temporary
injunction against the defendant restraining the defendant from
parking his scooter in the compound of the suit property till final
disposal of the suit. Also seeking relief to expedite the hearing of the
suit.
2. By filing present application it is submitted that the
plaintiff filed the suit for eviction under the Maharashtra Rent
Control Act, 1999. It is the case of plaintiff that the averments in the
plaint be treated as a part of application. It is contended that the
defendant has committed the breaches of the terms of tenancy. The
defendant has been illegally parking his scooter with side car in the
compound of the suit property. The said parking facility has never
been part of defendant’s tenancy. The defendant earlier used to park
his scooter on the Road, but taking advantage of the situation that
the plaintiff was not in India and that his sister Ms. Ketty Savak
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Suntoke being sick and unable to attend the suit property (who is
now deceased) started parking his scooter in the suit property. The
plaintiff called upon the defendant to stop illegal parking but the
defendant continued with his said illegal act giving no heed to his
request. By the aforesaid acts the defendant has committed the
breach of terms and conditions of the tenancy and also the breach of
the provisions of the Rent Act including Section 16(1)(a) of the Rent
Act. It is further contended that he being out of India for last about
9 years could not note, record and take appropriate legal action
against the defendant for the said illegal act committed by the
defendant. The defendant has been parking his scooter with side car
illegally and without permission and consent of the plaintiff/
landlord. The parking facility was never part of the letting of the
defendant. Defendant is not entitled to park his scooter in the
compound of the suit property, therefore, it is necessary to restrain
the defendant from parking his scooter in the compound of the
society. If the injunction order in respect of it is granted as prayed,
no harm, loss or prejudice will be caused to the defendant and if the
said reliefs are not granted not only grave and irreparable harm, loss
and prejudice will be caused to the plaintiff, but the same would also
subject him of being prosecuted by the MCGM under the provisions
of BMC Act and MRTP Act including criminal prosecution as
envisaged under the MRTP Act. Therefore, seeking relief of
temporary injunction restraining defendant from parking his scooter
in the compound of the suit property till conclusion of the suit.
3. On the other hand, defendant by filing affidavit in reply
below Exh.11 resisted the application and submitted that the
application under reply is contrary to the law and liable to be
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dismissed with costs. It is submitted that defendant is senior citizen
83 years old, a statutory tenant of plot No.27 i.e. suit property where
the defendant is residing since 1995. The defendant over the last 25
years has been duly paying rent alongwith all other applicable
charges towards the suit property. It is further submitted that the
plaintiff did not reside in India, admittedly for the last 9 years. All
dealings pertaining to the suit property were mostly communicated
with the plaintiff’s sister, one Ms. Ketty Suntoke during her life time.
The plaintiff’s sister was the authorized representative of the
plaintiff, to such an extent that the payment of rent and other
applicable charges was deposited with the plaintiff’s sister being the
plaintiff’s authorized representative and the plaintiff’s sister would
issue the rent receipts upon the payment, on behalf of the plaintiff
being his authorized representative upon the defendant. Therefore,
plaintiff always acted through his sister.
4. It is further contended that the plaintiff has not filed any
document on record to show that the defendant is precluded from
parking his scooter alongwith the side car in the compound of suit
property. Such a grievance or complaint regarding the defendant’s
alleged illegal parking was never raised prior to filing of the suit
and/or the application, neither by the plaintiff’s sister nor the
plaintiff. Plaintiff has failed to produce a single document showing
the defendant committed breach of terms and conditions of tenancy
and purportedly breached the provisions of the Maharashtra Rent
Control Act, 1999. Also failed to produce a single document to show
that the parking of the defendant’s scooter with side car in the
compound of the suit property is illegal and/or contrary to any such
written terms and conditions of the tenancy and never part of the
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letting of the suit property. Plaintiff also failed to produce on record
the document showing his sister was unable to manage the suit
property for the entire time since the defendant has been in
possession of the suit property and/or during the time when the
plaintiff was purportedly to reside in Abroad. Plaintiff also failed to
produce on record the document showing any grave and irreparable
harm, loss and prejudice would be caused to him, if the defendant is
not prevented from parking the scooter alongwith side car in the
compound of the suit property in which the defendant lawfully
resides. It is submitted that application is false, frivolous, misleading
and not maintainable in the eyes of law. There is no prima facie
case, the balance of convenience also not lies in favour of plaintiff.
Should the defendant park his scooter in the compound of the suit
property, no irreparable harm, loss or prejudice would be caused to
the plaintiff, therefore, submitted that interim application for
temporary injunction is not maintainable, application has no merit
whatsoever and ought to be dismissed with exemplary costs.
5. Plaintiff filed rejoinder below Exh.13 and repeated,
reiterated and confirmed to what has been stated by him in the
application and denied and resisted what is contrary and/or
inconsistence in the entire reply filed by the defendant.
6. From rival contentions of both the parties, following
points arises for my determination and I record my findings thereon
for the following reasons as under :
Points : Findings :
1. Does the plaintiff prove that he has made
out prima facie case in his favour ?
. . In the negative.
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2. Does the plaintiff prove that irreparable
loss would be caused to him in case
injunction is refused ?
. . In the negative.
3. Does the plaintiff prove that balance of
convenience lies in his favour ?
. . In the negative.
4. What order ? .. As per final order.
: R E A S O N S :
AS TO POINTS NO.1 TO 3 :-
7. Heard both sides. Ld. Advocate for the plaintiff argued
that the defendant has been illegally parking his scooter with side car
in the compound of the suit property, the parking facility has never
been part of defendant’s tenancy. He is parking his scooter with side
car without the permission of plaintiff/landlord, therefore, it is
necessary to restrain the defendant from parking his scooter in the
compound of the suit property by way of temporary injunction till
conclusion of the suit.
8. On the other hand, Ld. Advocate for the defendant
argued that the defendant is residing in the suit premises i.e. Plot
No.27 as a statutory tenant since 1995, he is senior citizen, he is
paying rent alongwith other applicable charges over the suit
property. Plaintiff has not filed any document on record to show that
the defendant is precluded from parking his scooter alongwith the
side car in the compound of the suit property. He further argued that
the plaintiff had not shown what grave and irreparable harm, loss,
injury and prejudice would be caused to him, if the defendant is not
prevented from parking the scooter alongwith the side car in the
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compound of suit property in which the defendant is lawfully resides.
It is further argued that there is no prima facie case, balance of
convenience is also not lies in favour of plaintiff, no any harm or loss
will be caused to the plaintiff, therefore argued that application for
temporary injunction may be rejected.
9. After hearing both sides, gone through the rival
contentions of both the parties, also gone through the pleadings of
the plaint, also gone through the documents i.e. counter foil of the
rent receipt filed alongwith list of documents Exh.4, also gone
through the list of documents Exh.15, alongwith list of documents
Exh.15 the plaintiff filed the copy of letter of administration
alongwith schedule of assets. The defendant never relied upon any
documentary proof. By way of present application plaintiff contended
that if the relief of injunction is not granted, not only grave and
irreparable harm, loss and prejudice will be caused to him but the
same would also subject him of being prosecuted by MCGM under
the provisions of BMC Act and MRTP Act including criminal
prosecution as envisaged under the MRTP Act. On perusal of record
prima facie it appears that plaintiff has not filed any document on
record to show that the notice is issued or action is contemplated by
the Municipal Corporation. There is no material to show that the
parking of the scooter with side car in the compound of the suit
property is in violation of Municipal Rules. There is no prima facie
case made out by the plaintiff for grant of temporary injunction as
sought. Prima facie case is not made out by the plaintiff, balance of
convenience also not lies in favour of the plaintiff, plaintiff has not
filed any document on record to prima facie show that the defendant
is precluded from parking his scooter alongwith the side car in the
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compound of the suit property. Therefore, I answered points No.1 to
3 in the negative and in answer to point No.4, I proceed to pass the
following order.
ORDER
1. Application is rejected.
2. Costs in cause.
Bandra - Mumbai. ( A.S. Pandagle )
Date : 28/7/2023. Judge, C. R. No.32.
.
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