Order 1

Order Details: Order on Exhibit
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CNR NO.MHSCA-30005142023
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.9
IN
L.D. SUIT NO. 55 OF 2023
Mr. Khan Abdul Motin Maqbul Ahmad . . Plaintiff.
Versus
Mr. Khan Abdul Kalam Shahadat . . Defendant.
D.R. Pandey : Advocate for plaintiff.
S.J. Khan : Advocate for Defendant.
Coram : A.S. Pandagle, Judge
C.R.No.32
Date : 9/8/2023.
ORAL ORDER :
1. This is an application filed by the plaintiff for temporary
injunction restraining the defendants, their agents, servants,
representatives and person or persons claiming through or under
them from dispossessing the plaintiff from the suit premises i.e.
shops/galas No.1-2, admeasuring 955 sq.ft. situated in Bharwad,
Chawl, Ram Kunvar Thakur Road, Opp. Gomant Kutir, Dahisar
(East), Mumbai-400 068, till final disposal of the suit.
2. By filing present application it is submitted that present
suit is filed by plaintiff against the defendant for declaration and
injunction in respect of the suit premises. It is contended by the
plaintiff that he repeat, reiterate and confirm all that is stated in the
plaint and the same be deemed to be incorporated herein verbatim,
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in order to avoid any repetition and adopt the same as if the same
were forming part of this application. The plaintiff refer and rely
upon the plaint and all the exhibits, papers and documents annexed
thereto.
3. It is further submitted by the plaintiff that the plaintiff
has taken the suit premises for a period of 36 months which
commenced from 1/5/2023 and will expire by 30/4/2026, on after
execution of leave and license agreement the defendant handed over
the suit premises to the plaintiff to run bakery business therefrom.
The plaintiff is in peaceful possession of the suit premises and is
running bakery business from the suit premises under the name and
style as M/s.Janata Bakery. At the time of handing over the
possession of the suit premises to the plaintiff, the plaintiff has also
handed over the copies of certificate issued under Water (Prevention
and Control of Pollution Act, 1974) Registration Certificate. The
plaintiff spent huge amount towards repairing, renovation, interior,
and furniture work in the suit premises unless it was difficult for the
plaintiff to do their business from the suit premises.
4. It is further submitted that the defendant is practicing
lawyer who is practicing in Metropolitan Magistrate Court. The
plaintiff has posed full faith upon him and on his assurance plaintiff
has taken the suit premises on leave and license basis for the period
of 36 months which will expire on 30/4/2026 and during the license
period, defendant will not interfere and create any obstruction and
hindrance in running the bakery business from the suit premises.
The plaintiff is running the bakery business peacefully from the suit
premises and has not breached and violated the terms and conditions
of the leave and license agreement. Even though, on 9/6/2023 at
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7.00 p.m. the defendant alongwith 2-3 persons came to suit premises
and asked the plaintiff to vacate and hand over him the suit premises
as defendant’s brother himself want to conduct bakery business. It
is further submitted that the plaintiff is in peaceful possession of the
suit premises and just started the bakery business. The leave and
license agreement is duly registered and till date the said leave and
license agreement has not been cancelled and nor the plaintiff has
received any notice from the defendant. The leave and license
agreement is for the period of 36 months which will expire by
30/4/2026. Again on 12/6/2023 defendant alongwith 2-3 persons
came to the suit premises and have forced the plaintiff to vacate and
hand over him the suit premises, therefore, the plaintiff approached
to the Dahisar Police Station to report the said incident, but the
concern duty officer of Dahisar Police Station did not register the
plaintiff’s complaint and asked the plaintiff that the matter is in civil
nature and the plaintiff should approach to Civil Court. It is further
submitted that the defendant is repeatedly threatening the plaintiff
and his workers/employees to vacate the suit premises, the repeated
unwarranted threats given by the defendant to forcibly dispossess or
evict the plaintiff from the suit premises, the plaintiff reasonably
apprehends that the defendant can go to any extent and there is
possibility that the defendant will take law in their hands and
thereby using money and muscle power will convert their threats
into action at any movement, therefore, plaintiff constrained to file
present suit and present application for temporary injunction against
the defendant.
5. On the other hand, defendant by filing reply below
Exh.14 resisted the application and denied all the contents of the
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application of the plaintiff and submitted that the suit and injunction
application taken out by the plaintiff is false, frivolous and vexatious
and not maintainable as the plaintiff has filed the suit against the
defendant without any cause of action. It is further submitted that
the defendant is the owner of the suit premises and the plaintiff is
the licensee in respect thereon as by executing leave and license
agreement dated 21/5/2023 he has given the suit bakery to the
plaintiff for a temporary period of 36 months on the terms and
conditions as mentioned therein, it was orally agreed between him
and the plaintiff that as and when the defendant will intimate the
plaintiff, the plaintiff to vacate the suit premises and plaintiff was
agreed that on oral intimation the plaintiff shall vacate and hand
over the possession thereof to the defendant. The suit premises is
required to the defendant as his son wants to conduct the said
business and therefore, the defendant has asked the plaintiff to
vacate and hand over him the possession thereof.
6. It is further submitted by the defendant that he has
orally terminated the said license and requested the plaintiff to
vacate and hand over him the possession of the suit premises. His
son has expressed his desire to conduct bakery business from the suit
premises, therefore, he has asked the plaintiff to vacate the suit
premises. It is further submitted that the plaintiff is not entitled to
relief as prayed for, there is no balance of convenience in favour of
the plaintiff, plaintiff will not suffer any irreparable loss or injury or
harm, if the injunction as prayed not granted, therefore, submitted
that application may be dismissed with costs.
7. From rival contentions of both the parties, following
points arises for my determination and I record my findings thereon
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for the following reasons as under :
Sr.No. Points : Findings :
1. Does the plaintiff prove that he has
made out prima facie case in his
favour ?
. . In the
affirmative.
2. Does the plaintiff prove that irreparable
loss would be caused to him case
injunction is refused ?
. . In the
affirmative.
3. Does the plaintiffs prove that balance of
convenience lies in his favour ?
. . In the
affirmative.
4. What order ? .. As per final order.
: R E A S O N S :
AS TO POINTS NO.1 TO 3 :-
8. Heard both sides, perused the record of the proceeding.
Present suit is filed by the plaintiff against the defendant for
declaration and for injunction. By way of this application plaintiff
seeking temporary injunction.
9. I have gone through the documents alongwith list Exh.4
filed by the plaintiff. Plaintiff alongwith list Exh.4 filed copy of leave
and license agreement dated 21/5/2023. On the light perusal of
leave and license agreement dated 21/5/2023 it prima facie appears
that it is registered document executed between the plaintiff and
defendant in respect of the suit premises for the period of 36 months
commencing from 1/5/2023 and ending on 30/4/2026. On the light
perusal of leave and license agreement dated 21/5/2023 it prima
facie appears that the plaintiff has taken the suit premises from the
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defendant for the period of 36 months, the license fee and deposit
shown in the leave and license agreement @ Rs.20,000/- per month
towards the compensation and Rs.1,000/- interest free refundable
deposit.
10. It is contended by the plaintiff in his pleading that the
plaintiff is running the bakery business peacefully from the suit
premises and has not breached and violated the terms and conditions
of leave and license agreement, but on 9/6/2023 and 12/6/2023
defendant alongwith 2-3 persons came to suit premises and have
forced the plaintiff to vacate and hand over him the suit premises,
therefore, he approached Dahisar Police Station, but police did not
register the complaint and asked the plaintiff to approach the Court.
With regard to this contention of the plaintiff it is necessary to go
through the leave and license agreement dated 21/5/2023. On
perusal of leave and license agreement dated 21/5/2023 it prima
facie appears that it is registered document executed between
plaintiff and defendant for the period of 36 months commencing
from 1/5/2023 and ending on 30/4/2026.
11. It prima facie appears that the license granted to the
plaintiff is still subsisting, existing and in force and the same is
binding upon the defendant and admittedly the license granted to
the plaintiff is not terminated. It is contended by the defendant in
his reply that he orally terminated the said license and requested him
to vacate and hand over him the possession thereof. On the light
perusal of leave and license agreement dated 21/5/2023 it prima
facie appears that provision made in clause 10 of the said leave and
license agreement that the leave and license agreement can be
cancelled by giving notice in writing by one month, if the terms and
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conditions of the said leave and license agreement breached and/or
violated. It prima facie appears that it is not the contention of the
defendant that the plaintiff committed breach or violated the terms
and conditions of the leave and license agreement dated 21/5/2023.
It also prima facie appears that it is not the contention of the
defendant that the defendant prior to termination of the leave and
license agreement issued notice to the plaintiff as per the provisions
of clause 10 of the said leave and license agreement dated
21/5/2023. It prima facie appears that the defendant himself stated
in his reply that the suit premises required to his son for to conduct
the bakery business. It prima facie appears that the leave and license
agreement dated 21/5/2023 is for 36 months commencing from
1/5/2023 and ending on 30/4/2026, a leave and license agreement
granted to the plaintiff is still subsisting, existing and in force, the
defendant had not given notice as per the provisions of clause 10 of
the said leave and license agreement to the plaintiff for termination
of leave and license agreement. There is prima facie case in favour
of the plaintiff, balance of convenience is also lies in favour of the
plaintiff, the plaintiff after getting possession of the licensed premises
carried out various work in the suit premises and spent huge
amount, in such circumstance, if the order of temporary injunction is
not granted in favour of plaintiff, plaintiff will suffer irreparable loss
which cannot be compensated in any manner, therefore, I answered
points No.1 to 3 in the affirmative and in answer to point No.4, I
proceed to pass following order.
ORDER
1. Application is allowed.
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2. By way of this order the defendants, their agents,
servants, representatives and person or persons
claiming through or under them are hereby by
way of temporary injunction restrained from
dispossessing the plaintiff from the suit premises
i.e. shops/galas No.1-2, admeasuring 955 sq.ft.
situated in Bharwad, Chawl, Ram Kunvar Thakur
Road, Opp. Gomant Kutir, Dahisar (East),
Mumbai-400 068, till final disposal of the suit.
Bandra - Mumbai. ( A.S. Pandagle )
Date : 9/8/2023. Judge, C. R. No.32.
.
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