Order 2

Order Details: Order on Exhibit
Pdf Text: 1 LE&C Suit No.81 of 2021
Exh.No.10
CNR NO.MHSCA30006562021
IN THE COURT OF SMALL CAUSES AT MUMBAI
BANDRA BRANCH
ORDER BELOW APPLICATION (EXHIBIT NO.10 )
IN
L.E. & C. SUIT NO. 81 OF 2021
Mr. Sanjay Parmanand Mishra . . Plaintiff.
Versus
1. Mr. Manish Shyam Sharma and anr. . . Defendants.
Advocate for Plaintiff : Adv. S.P. Pandey
Advocate for Defendants : Adv. O.R. Tiwari
Coram : G. J. Shrisunder, Judge.
C.R.No.32.
Date : 19/07/2022.
ORDER BELOW APPLICATION (EXHIBIT NO.10) :
1. The plaintiff has filed the present suit against the
defendants under Section 41 of the Presidency Small Causes Court
Act, to hand over vacant and peaceful possession of the suit premises
viz. Shop No.34, built up 425 sq.ft., situated on the ground floor of a
building known as “Rock Avenue CHS Ltd., D Plot” standing on the
plot of land bearing C.T.S. No.1A Road, Bunder Pakhadi Road, Opp.
Joy Ice Cream, Kandivali (West), Mumbai 4009067 of village:
Kandivali, situated within the Revenue limits of Tehsil: Borivali and
District Mumbai Suburban District, within the limit of Mumbai
Municipal Corporation. (The said premises is hereinafter referred to
as the “suit premises”).
2. The plaintiff has filed the present application vide
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Exh.No.10
Exh.10 for injunction against the defendants and praying that :
(a) Pending the hearing and final disposal of the suit, this Court be
pleased to restrain the defendants, their agents, servants, employees
from creating any third party rights/interest or inducting any third
person in the suit premises viz. Shop No.34, built up 425 sq.ft.,
situated on the ground floor of a building known as “Rock Avenue
CHS Ltd., D Plot” standing on the plot of land bearing C.T.S. No.1A
Road, Bunder Pakhadi Road, Opp. Joy Ice Cream, Kandivali (West),
Mumbai 4009067 of village: Kandivali, situated within the Revenue
limits of Tehsil: Borivali and District Mumbai Suburban District,
within the limit of Mumbai Municipal Corporation.
(b) Pending the hearing and final disposal of the suit, this Court be
pleased to appoint Court Receiver, High Court, Bombay or some fit
and proper person as the Receiver, under Order 40 of the Code of
Civil Procedure, 1908, as amended uptodate restraining the
defendants, their agents, servants, employees and/or any person
creating any third person rights in respect of the suit premises viz.
Shop No.34, built up 425 sq.ft., situated on the ground floor of a
building known as “Rock Avenue CHS Ltd., D Plot” standing on the
plot of land bearing C.T.S. No.1A Road, Bunder Pakhadi Road, Opp.
Joy Ice Cream, Kandivali (West), Mumbai 4009067 of village:
Kandivali, situated within the Revenue limits of Tehsil: Borivali and
District Mumbai Suburban District, within the limit of Mumbai
Municipal Corporation and hand over the physical possession thereof
to the Court Receiver.
(c) Pending the hearing and final disposal of the suit, this Court be
pleased to appoint the plaintiff as agent of the Court Receiver, High
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Court, Bombay, in respect of the suit premises viz. Shop No.34, built
up 425 sq.ft., situated on the ground floor of a building known as
“Rock Avenue CHS Ltd., D Plot” standing on the plot of land bearing
C.T.S. No.1A Road, Bunder Pakhadi Road, Opp. Joy Ice Cream,
Kandivali (West), Mumbai 4009067 of village: Kandivali, situated
within the Revenue limits of Tehsil: Borivali and District Mumbai
Suburban District, within the limit of Mumbai Municipal
Corporation, without any compensation and/or charge.
3. The plaintiff has averred that in his injunction
application that there are chances of the defendants creating any
thirdparty rights/interest or inducting any third person in the suit
premises with intention to harass him. He has further averred that
he is not in a position to protect possession of the suit premises,
physically, therefore, it is essential to restrain the defendants by
temporary order directing them not to create third party rights
inducting third person in the suit premises.
4. The plaintiff has further averred that there is urgency as
the defendants became dishonest and they are intending to grab the
suit premises, therefore interim reliefs are required. He will suffer
irreparable loss, harm and damage, which cannot be compensated in
terms of money whereas no prejudice will be caused to the
defendants, if the reliefs as prayed are granted in his favour. The
plaintiff has not press prayer (b) and (c) of Exh.10. Hence, this
application.
5. Defendants have filed their reply vide Exhibit No.17 and
combated the application. Defendant No.1 has contended that he
repeat, reiterate, confirm and maintain each and every statements,
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averments and contentions raised in his written statement and adopt
the same as part and parcel of this affidavit in reply and denied each
and every statement, averments and contentions raised in the plaint.
6. The defendants have specifically contended in their
reply vide Exh.17 para 6 that they have denied that the defendants
have any intention to create third party rights/interest or to induct
third party in the suit premises. They are in exclusive possession of
the suit premises and therefore, question of parting with physical
possession of the suit premises does not arise at all. They have
prayed that the application of the plaintiff vide Exh.10 is liable to be
dismissed with compensatory costs.
7. Heard both sides.
8. The points for determination of this Court and findings
thereon with the reasons are as under :
Sr.No. Points : Findings :
1. Does the plaintiff prove that he has
made out prima facie case in his
favour ?
Yes.
2. Does the plaintiff prove that balance
of convenience lies in his favour ?
Yes.
3. Does the plaintiff prove that irreparable
loss would be caused to him in case
temporary injunction is refused ?
Yes.
4. What order ? As per final order.
: R E A S O N S :
9. The plaintiff is relying upon documents, copies of which
are annexed along with the plaint vide Exhibit No.31 such as death
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certificate of Mrs. Usha Sanjay Mishra, agreement for sale dated
4/9/2006, share certificate issued by the society, leave and licence
agreement dated 24/6/2019, legal notice issued by the defendants
dated 17/3/2021, reply sent by the plaintiff dated 22/3/2021,
rejoinder of the defendants dated 03/04/2021, complaint lodged
with Kandivali Police Station.
As to Point Nos.1 to 4 :
10. The Court has gone through the matter which reveals
that the defendant has specifically admitted the fact in his reply vide
Exh.17 para 6 that the defendants have denied that they have any
intention to create third party rights/interest or to induct third party
in the suit premises. They are in exclusive possession of the suit
premises and therefore, question of parting with physical possession
of the suit premises does not arise at all.
11. Considering the pleading of the plaintiff vide Exh.1
alongwith injunction application vide Exh.10, reply of defendant vide
Exh.17, documents filed by the plaintiff, the Court has gone through
the record and proceedings of the matter, and after hearing both the
sides, it is clear that the plaintiff is the licensor and the defendants
are licensee of the plaintiff. The defendants have specifically
admitted the fact in their reply vide Exh.17 para 6 that the
defendants have denied that they have any intention to create third
party rights/interest or to induct third party in the suit premises.
They are in exclusive possession of the suit premises and therefore,
question of parting with physical possession of the suit premises does
not arise at all. The plaintiff is the licensor and there is apprehension
in the mind of the plaintiff that there is possibility of creating third
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party right in the suit premises by the defendants and to protect the
right of the plaintiff, it is essential to grant prayer (a) of para 6 of the
injunction application. From the abovesaid admission it is clear that
the plaintiff is having prima facie case in his favour, balance of
convenience is also lies in his favour and if the injunction is not
granted then naturally there will be monetary loss to the plaintiff
only. On the contrary, no prejudice will be caused to the defendants
as they are in possession of the suit premises. In the circumstances,
on the basis of abovesaid reasons, this Court answer Point Nos.1 to 3
in the affirmative and in answer to Point No.4, this Court pass the
following order.
ORDER
1. The injunction application vide Exh.10 is
allowed.
2. The defendants, their agents, servants,
employees or anybody claiming through them
are hereby restrained from creating any third
party rights/interest or inducting any third
person in the suit premises viz. Shop No.34,
built up 425 sq.ft., situated on the ground
floor of a building known as “Rock Avenue
CHS Ltd., D Plot” standing on the plot of land
bearing C.T.S. No.1A Road, Bunder Pakhadi
Road, Opp. Joy Ice Cream, Kandivali (West),
Mumbai 4009067 of village: Kandivali,
situated within the Revenue limits of Tehsil:
Borivali and District Mumbai Suburban
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District, within the limit of Mumbai Municipal
Corporation, till decision of the suit.
3. Costs in cause.
4. Both the parties to note the order.
Bandra Mumbai. ( G. J. Shrisunder )
Date : 19/07/2022. Judge, C. R. No.32.
Order dictated & typed on : 19/07/2022.
Order checked & signed on : 19/07/2022.
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