Interim Order 7

Order Details: Order on Exhibit
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(CNR No.MHSCA3-000458-2023)
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.23
IN
R.A.E.&.R. SUIT NO.377 OF 2023
Mr. Velji Ranmal Shah … Plaintiff
Versus
Shri. Rajesh Raghavji Shah … Defendant
Shri. Omkarnath R. Tiwari, Ld. Advocate for the plaintiff.
Shri. Lalbahadur R. Upadhayay, Ld. Advocate for the defendant.
Coram : Smt. J. D. Hushangabade
Judge, C.R. No.34.
Date : 16.03.2026.
ORAL ORDER:
1. This is an application filed under Order XXXIX Rule 1
and 2 of the Code of Civil Procedure, 1908 for temporarily restrained
to the defendant, his servants, agents and representatives and/or any
other person or persons claiming through him from in any manner
whatsoever parting with possession and/or from inducting third
party/stranger in the suit premises and/or from creating third party
rights in respect of the suit premises as well as carrying out any
further addition or alteration in the suit premises of permanent
nature and/or from changing the identity of the suit premises and/or
from subletting the suit premises being Shop No.3, Janubhai
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Bapubhai Patel Chawl, Opp. Shivaji Chowk, Daftary Road, Malad-
East, Mumbai-400 097. (hereinafter referred to as ‘suit premises’).
Case of the plaintiff :-
2. It is the case of plaintiff that, he has filed the above
eviction suit against the defendant for recovery of possession of the
suit premises on the ground of arrears of rent, addition and alteration
carried on in the suit premises of permanent nature etc. The
defendant appeared before this Court.
3. Recently, since last about 15 days, it is learnt that the
defendant is negotiating with several customers in order to dispose of
the suit premises to third party during pendency of the present
eviction suit and in last one week more than two/three customers
without disclosing their names called him on his mobile phone and
disclosed that they are interested to purchase the suit premises from
the defendant, therefore, in the event of acquiring the suit premises,
when he will transfer the rent receipt in his favour and he disclosed
that since he has filed eviction suit for seeking possession of the suit
premises, therefore, he has strong objection for transfer of tenancy in
favour of third party in any manner whatsoever. He also told them
that since the defendant is tenant in respect of the suit premises and
since the eviction suit is pending, therefore, the defendant is not
entitled to part with possession of the suit premises or to induct third
party in the suit premises nor entitled to create third party rights in
respect of the suit premises.
4. One of the customer who is engaged in construction of
illegal and unauthorized structures, threatened the plaintiff that he
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will acquire the suit premises from the defendant and he will
construct first floor over the suit premises and he will sublet the same
to some third party and shall profiteer himself and he does not care
about the above eviction suit and its consequences. The plaintiff
personally tried to contact the defendant, but he avoided and evaded
to answer his call and failed to give any clarification in this regard, on
the contrary he is denying his right, title and interest as landlord and
owner of the suit property.
5. The plaintiff is apprehending due to above threats given
by third party on behalf of the defendant and looking to conduct of
the defendant, it has become crystal clear that despite appearing
before the Court and despite filing his written statement, the
defendant has made up his mind to part with possession of the suit
premises and induct third party in the suit premises and intends to
create third party rights in respect thereof during pendency of the
suit. Therefore, this urgent application for seeking urgent interim
relief as prayed. If, the said relief as prayed for is not granted in
favour of the plaintiff then he will suffer huge wrongful loss,
irreparable injury and serious prejudice, which will not be
compensated to him in terms of money and his eviction suit will
become infructuous, whereas if the reliefs prayed for is granted
against the defendant, then no such loss, injury or prejudice will be
caused to the defendant in any manner whatsoever. The balance of
convenience is in favour of the plaintiff.
6. On the other hand, the Ld. Advocate on behalf of the
defendant has objected the present application by giving handwritten
say on overleaf of the application and denied the statements made in
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the application. Hence, prayed that to reject the application.
7. Perused application and say thereon. Heard both sides
at length. I have also gone through the record and proceeding of the
matter.
8. From the rival pleading, following points arise for my
determination and I have recorded my findings thereon for the
reasons below:-
Sr.
No.
POINTS FINDINGS
1. Whether the plaintiff has made out prima
facie case?
In the
affirmative.
2. Whether balance of convenience lies in
favour of the plaintiff?
In the
affirmative.
3. Whether the plaintiff would suffer
irreparable loss, if application is rejected?
In the
affirmative.
4. What order ? Application is
allowed, as per
final order.
: R E A S O N S :
AS TO POINT NOS. 1 TO 4:
9. All these points are interlinked with each other,
therefore, taken for consideration at once for convenient discussion
and to avoid repetition.
10. The plaintiff has filed supporting affidavit to this
injunction application. Ld. Advocate for the plaintiff has submitted
that during pendency of this suit, recently i.e. prior to 15 days the
plaintiff learnt that the defendant is negotiating with several
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customers in order to dispose off the suit premises to the third party.
He received phone calls of interested persons to purchase the suit
premises. The Ld. Advocate for the plaintiff has further argued that
one of the customers willing to construct first floor over the suit
premises to sublet the same to the third party.
11. On the other hand, the Ld. Advocate for the defendant
has argued that the application is not based on facts and, therefore,
needs to be rejected.
12. Considering the application filed along-with affidavit
and the fact that this suit is filed for eviction of the defendant and for
recovery of peaceful possession of the suit premises on the grounds of
arrears of rent and illegal additions and alterations in the suit
premises by the defendant. Admittedly the suit premises is in
possession of the defendant. Moreover, the defendant has not
specifically denied or undertaken that he has no intention to create
third party interest or part with possession of the suit premises. In
such circumstances and considering the fact that the defendant has
possession of the suit premises and one of the grounds for eviction
stated in the plaint is illegal addition and alteration in the suit
premises by the defendant, therefore, the possibility that the
defendant may transfer, sublet or otherwise create third party interest
in the suit premises and/or construct illegal additions and alterations
in the suit premises to delay the proceeding and to frustrate claim of
the plaintiff, cannot be ruled out. Therefore, I came to the conclusion
that the plaintiff has proved the prima facie case in his favour.
13. Considering the fact that there is an apprehension in the
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mind of the plaintiff and I observed that the possibility that the
defendant may create third party interest in the suit premises, cannot
be ruled out, in my view, the balance of convenience lies in favour of
the plaintiff. On the other hand, the defendant has possession of the
suit premises, therefore, no prejudice will be caused to him, if the
temporary injunction to restrain the defendant from creating third
party interest or parting with possession of the suit premises to third
party and/or restrain him from constructing any additions or
alterations of permanent nature in the suit premises. Therefore, the
plaintiff is entitled for temporary injunction in his favour. Hence, I
answer point Nos.1 to 3 in the affirmative and in answer to point
No.4, I proceed to pass the following order:-
: O R D E R :
1. Application at Exhibit No.23 is allowed.
2. The defendant, his servants, agents and
representatives and/or any other person or
persons claiming through him from in any
manner whatsoever is hereby temporarily
restrained by an order of injunction from
parting with possession and/or from inducting
third party/stranger in the suit premises and/or
from creating third party rights in respect of the
suit premises as well as carrying out any further
addition or alteration in the suit premises of
permanent nature and/or from changing the
identity of the suit premises and/or from
subletting the suit premises being Shop No.3,
Janubhai Bapubhai Patel Chawl, Opp. Shivaji
Chowk, Daftary Road, Malad-East, Mumbai-400
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097 till hearing and final disposal of the suit.
3. Both parties to take note of this order.
4. No order as to costs.
Place : Mumbai ( J. D. Hushangabade )
Date : 16.03.2026. Judge, C.R. No.34 (BB).
Order dictated & Typed on : 16.03.2026.
Order checked & signed on : 17.03.2026.
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