Order 1

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT – 11
IN
R. A. E. SUIT NO. 357 of 2024
(CNR No.:-MHSCA3-0010772024)
Mr. Ravindra Chandrashekhar Kale, ...Plaintiff.
Versus
1. Smt. Pooja Kurup w/o. Ritesh Kurup & Anr. ...Defendants.
Appearance:-
Mr. Omprakash A. Pandey, ...Ld. Advocate for the Plaintiff.
Mr. Vishal V. Chavan, …Ld. Advocate for the Defendants.
Coram: R. R. Kale,
Judge, C. R. No. 36.
Date : 28th February, 2025.
ORDER:-
Present application is taken out by the plaintiff for the
relief of an interim injunction against the defendants.
2. In brief, it is the contention of the plaintiff in the
application that, he is the owner/landlord of Room No. 1, situated at
ground floor, Dhanvantari Niwas Building, Subhash Road, Vile Parle
(East), Mumbai- 400 057, admeasuring about 350 sq. fts. property
bearing C.T.S. Nos. 167, 167/1 to 7, Plot No. 31A, Village- Vile Parle,
Taluka- Andheri MSD as described in the plaint (hereinafter for the
sake of brevity referred to as ‘the suit premises.’). Originally Mr. K. S.
Vasudeva Paniker was the monthly tenant of the plaintiff in respect of
the suit premises who died on 28.05.1998 at Mumbai. Thereafter, the
rent receipts came to be transferred in the name of his daughter
namely Ragini Vasudeva Paniker. However, said Ragini also died on
01.01.2022 at Mumbai leaving behind her daughter Smt. Pooja
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Ritesh Kurup i.e. defendant No. 1 being her married daughter, the
only heir and legal representative.
3. The plaintiff further submits in his application that,
defendant No. 1 is permanently residing at Plot No. 301, Building A-
1, Saarthi Sovereign, Hinjewadi Phase-2, Pune- 411057 along with
her husband. She has kept the suit premises under the lock and key.
Defendant No. 2 is cousin of the defendant No. 1 who is residing at
the address mentioned in the cause title of the plaint. The defendant
No. 1 used to pay the rent of the suit premises through cheque. She is
not using the suit premises for residential purpose and residing at
Pune at aforesaid address.
4. The plaintiff further submits in his application that, the
defendant No. 1 wants to sublet and / or part with possession of the
suit premises in favour of defendant No. 2 without knowledge and
permission of the plaintiff. The defendant No. 2 is unlawfully
attempting to take possession of said premises, however, he does not
have right, title and interest to possess and occupy the same. The
defendant No. 1 has committed an act of waste and damage to the
suit premises. She has also carried out various alterations and
additions of permanent nature to the suit premises without consent
and permanent of the plaintiff and Municipal Corporation. The suit
premises has not been used by the defendant No. 1 tenant without
reasonable cause for the purpose for which it was let for a continuous
period of six months immediately preceding the date of the suit. The
plaintiff has asked for relief of eviction and recovery of possession of
the suit premises under sections 16(1)(b), 16(1) (e), 16(1) (g) and
16(1)(n) of the Maharashtra Rent Control Act, 1999 ( for short ‘the
Rent Act’). The defendant No. 1 is trying to create third party right in
respect of the suit premises. If she is succeeded in doing so, there
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would be multiplicity of legal proceedings and irreparable damage
and loss would be caused to the plaintiff which cannot be
compensated in terms of money. He has prima facie case and balance
of convenience lies in his favour. Thus, pending the hearing and final
disposal of the suit, the defendant No. 1 be restrained by way of
interim injunction from dealing with, dispossessing of, or parting
with possession to defendant No. 2 or any third party right, title and
interest or any part in respect of the suit premises in any manner. The
defendant No. 2 also be restrained from entering upon the suit
premises and / or occupying the premises or any part thereof in any
manner till the final disposal of the present suit. Contending all these
grounds, the plaintiff has prayed for grant of the application.
5. The defendant Nos. 1 and 2 after service of writ of
summons and notices of the present application have appeared
through their Ld. advocate and filed common written statement at
Exh. 17. They have filed application vide Exh. 18 praying therein
that, their written statement vide Exh. 17 be treated as their say to
interim application vide Exh. 11.
6. In brief, the defendants in their written statement/say
vide Exh. 17 submitted in brief that, the plaintiff has suppressed
material facts from the Court. Present suit is false, frivolous and
solely intended to unlawfully evict the defendants by hook and crook
to commercially exploit the suit premises.
They further go on to say that, present suit is without cause of action
and as there is no relationship between the plaintiff and defendant
No. 2 as that of landlord and tenant, suit is not maintainable against
him.
7. The defendants further contended in their written
statement/say that, even though the rent receipts were transferred in
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the name Mrs. Ragini Paniker (mother of defendant No. 1), all
family members were staying at the suit premises including the
defendants. The defendants were born and brought up at the suit
premises and have been continuously residing there till the date. The
defendant No. 2 being employed in Merchant Navy, resides at the suit
premises when not on duty aboard ships. The defendant No. 1 due to
job of her husband and her child, occasionally resides in Pune and
sometimes in Mumbai. The plaintiff is trying to prevent the
defendants from lawful use of the suit premises and falsely making
complaint in the police station. The plaintiff’s claim of bonafide
requirement is baseless and malafide. The defendant No. 2 has been
paying 50% of rent to the defendant No. 1 and she is collectively
paying full 100% rent amount to the plaintiff. All the allegations of
the plaintiff in the plaint and application are totally false and it is
denied that, the defendant No. 2 does not have right, title and
interest to possess and occupy the suit premises. There is no need of
granting interim relief to the plaintiff as he has not made out any
prima facie case against the defendants. Hence, application be
rejected. Contending all these grounds, the defendants have urged for
dismissal of the present application with cost.
8. The plaintiff has filed rejoinder at Exh. 19 and thereby
denied all the contentions of the defendants made in written
statement cum say vide Exh. 17. Lastly, the plaintiff has prayed to
allow his prayer.
9. From the contents of the application and say filed
thereon, following points arise for my determination. I have given my
findings thereon for the reasons stated as under : -
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Sr. nos. Points Findings
1. Whether the plaintiff has prima facie case
in his favour?
...Yes.
2. Whether the balance of convenience lies
in favour of plaintiff?
…Yes.
3. Whether the irreparable loss will cause to
the plaintiff, if application is not
allowed?
...Yes.
4. What order ? Application
stands
allowed.
: R E A S O N S :
As To Point Nos. 1 to 3 :-
10. The Point Nos. 1 to 3 are interlinked and interwove to
each other, therefore to avoid repetition it is desirable to discuss
altogether. Heard Ld. Advocate Mr. Omprakash Pandey on behalf of
the plaintiff and Ld. Advocate Mr. Vishal Chavan on behalf of
defendants at length.
11. The Ld. Advocate on behalf of plaintiff vehemently
argued in consonance with the present application. The Ld. Advocate
on behalf of defendants vehemently argued that, the plaintiff has not
made out prima facie case ; the balance of convenience also does not
lie in his favour and therefore, if the present application is rejected,
no irreparable loss would be caused to the plaintiff. Lastly, he would
submit that, present application is liable to be dismissed with cost.
12. Present application is for granting interim injunction
against the defendants till final hearing and disposal of the present
suit. Since the present application is under Order XXXIX Rule 1 of the
Code of Civil Procedure, the said provision needs to be reproduced
here :-
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“ 1. Cases in which temporary injunction may be granted:
Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted,
damaged or alienated by any party to the suit, or wrongfully sold in
execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of
his property with a view to [defrauding] his creditors,
[(c) that the defendant threatens to dispossess, the plaintiff or
otherwise cause injury to the plaintiff in relation to any property in
dispute in the suit,] the Court may by order grant a temporary
injunction to restrain such act, or make such other order for the
purpose of staying and preventing the wasting, damaging, alienation,
sale, removal or disposition of the property [or dispossession of the
plaintiff, or otherwise causing injury to the plaintiff in relation to any
property in dispute in the suit] as the Court thinks fit, until the
disposal of the suit or until further orders.”
13. Grant of temporary injunction is governed by three basis
principles i.e. prima facie case ; balance of convenience and
irreparable injury which are required to be considered in proper
manner after considering the facts and circumstances of each case
where party to the suit seeks for temporary injunction. The prima
facie case means that, the court must be satisfied that, there is a
serious question which should be tried at the hearing. It is a
substantial question raised bonafide which needs investigation and a
decision on merits. The balance of convenience means the
comparative mischief or inconvenience to the parties. The
inconvenience to the plaintiff if temporary injunction is refused
would be balanced and compared with that to the defendant if it is
granted. If the scale of inconvenience leans to the side of the plaintiff,
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then alone interlocutory injunction should be granted. The court
must be satisfied that, the comparative mischief, hardship or
inconvenience which is likely to be caused to the applicant by
refusing the injunction will be greater than that which is likely to be
caused to the opposite party by granting it.
14. The court while exercising discretion in granting or
refusing injunction should exercise sound discretion and attempt to
weigh substantial mischief or injury likely to be caused to the parties,
if the injunction is refused and compare it with that which is likely to
be caused to the opposite party if the injunction is granted. If on
weighing conflicting probabilities, the court is of the opinion that
balance of convenience is in favour of the applicant, it would grant
injunction, otherwise refuse to grant it.
15. I have considered all the submissions made by the parties
According to the case of plaintiff, the defendant No. 1 is his tenant in
respect of the suit premises and defendant No. 2 is the cousin of
defendant No. 1. According to further case of the plaintiff, the
defendant No. 1 being the tenant, is not using the suit premises
without reasonable cause for the purpose for which it was let for a
continuous period of six months immediately preceding the date of
the suit under Section 16(1)(n) of the Rent Act. It is his further case
that, the defendant No. 1 without his consent in writing, erected on
the suit premises permanent structure under Section 16(1)(b) of the
Rent Act ; the suit premises is reasonably and bonafide required by
the plaintiff and the suit premises has been unlawfully sublet without
consent and permission of the plaintiff.
16. The defendants have prima facie admitted in their
written statement vide Exh. 17 that, plaintiff is the landlord of the
suit premises, however, according their further contention, the
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defendant No. 2 is also the tenant of the suit premises. They have
further taken defence that, both defendants have born and brought
up in the suit premises ; the defendant No. 1 has not kept the suit
premises locked and no structural changes or alterations have been
made by any of the defendants in the suit premises. The description
of the suit premises is not in dispute.
17. Now, coming to the documents, on perusal of the copies
of rent receipts, prima facie it seems that, one receipt is standing in
the name of Ragini Vasudeva Paniker and other receipt is in name of
Sarita Ritesh Karup. It is also prima facie not in dispute that, original
tenant of the suit premises was deceased K. F. Vasudeva Paniker who
died leaving behind Ragini as his married daughter who was
divorcee. It is the case of the plaintiff that, on account of no objection
given by other heirs of original tenant, the rent receipts came to be
transferred in the name of above Ragini and after her demise, the
tenancy of the suit premises came to be transferred in the name of
defendant No. 1. Since the relationship between the plaintiff and
defendant No. 1 in respect of the suit premises as that of landlord
and tenant is prima facie not in dispute, the prima facie burden shifts
on the defendant No. 1 that, the defendant No. 2 is also the tenant of
the plaintiff. The defendants prima facie have not denied the copy of
letter dated 25.02.2013 issued by deceased Ragini to the mother of
the plaintiff.
18. On perusal of pleadings of the parties, the defendants
prima facie are not denying that, at present the defendant No. 2 is
also occupying the suit premises. There is nothing prima facie on
record to show that, the defendant No. 2 has been allowed to reside
at the suit premises at any point of time with the written consent of
the plaintiff as tenant thereof. The defendants have prima facie not
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denied that, the defendant No. 1 is also residing at the address
mentioned below her name in the cause title of the plaint. Rather the
defendant No. 1 has contended that, she occasionally resides in Pune
and sometimes in Mumbai. However, she has cleverly prima facie
denied that, at any point of time the suit premises kept locked by her.
She is not denying that, her husband and son are residing at Pune. So
it is but natural that, her residence would be with her husband and
son at Pune. Therefore, prima facie it is possible that, the suit
premises has been kept locked.
19. The defendants have further contended in the written
statement that, the defendant No. 2 is employed in the Merchant
Navy, he has to stay often on ships for approximately six months at a
stretch and he resides at the suit premises when not on his duty.
Thus, from these contentions, prima facie it can be seen that, the
defendant No. 2 is also occupying the suit premises when he comes
from his ship duty. The defendants have failed to bring prima facie
material on record to show that, the defendant No. 2 has any concern
with the suit premises. Thus, I do found substance in the contentions
and argument advanced by the plaintiff that, he has apprehension
that, the defendant No. 1 may induct any third party or create any
third party right, title and interest in respect of the suit premises.
Since the contention of the defendants is that, the defendant No. 2
enters upon the suit premises after 6 months when not on his duty on
ship, I do found substance in the argument advanced by the plaintiff
that, the defendant No. 2 needs to be restrained from entering upon
the suit premises and / or occupying it or any part thereof
whatsoever nature till final hearing and disposal of the suit. The
defendants have only denied the averments made in the plaint and
application without giving any prima facie material in support of
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their contentions.
20. The plaintiff has made out prima facie case in the present
matter. The balance of convenience also lies in favour of the plaintiff.
Therefore, if the interim injunction is not granted in his favour under
Order XXXIX Rule 1 read with Section 151 of Code of Civil Procedure,
1908, he would suffer irreparable loss which cannot be compensated
in terms of money. On the contrary, if application is allowed, no
prejudice would be caused to the defendants as the defendant No. 1
prima facie appeared to have not observed the terms and conditions
of the tenancy by allowing the defendant No. 2 to occupy the suit
premises without consent of the plaintiff. Thus, I answer Point Nos. 1
to 3 in affirmative.
As to Point No. 4:
21. Considering the findings and reasoning given on Point
Nos. 1 to 3, present application needs to be allowed. Therefore, in
answer to Point No. 4, I proceed to pass the following order :-
: O R D E R :
1. Application vide Exh. 11 stands allowed.
2. The defendant No. 1 herself or through any person is
hereby restrained by temporary injunction order from
dealing with, disposing of, or parting with possession to
defendant No. 2 or any third party and / or creating third
party right, title or interest in respect of the suit premises
or any part thereof in any manner whatsoever nature till
final disposal of the suit.
3. The defendant No. 2 is hereby restrained by temporary
injunction order from entering upon the suit premises
and / or occupying the suit premises or any part thereof in
any manner whatsoever nature till final disposal of the
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suit.
4. Costs in cause.
(Dictated and pronounced in Open Court.)
Bandra -Mumbai. ( R. R. Kale )
Date : 28.02.2025. Judge, C. R. No.36.
Order dictated on computer : 28.02.2025
Order checked and signed on : 28.02.2025.
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