Final Order 1

Order Details: Copy of Judgment
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(CNR NO.MHSCA30010882023)
Presented on: 16.12.2023
Registered on: 19.12.2023
Decided on: 17.02.2024
Duration Y M D
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IN THE COURT OF SMALL CAUSES AT MUMBAI
[BANDRA BRANCH]
(Appellate Bench)
MISC. APPEAL NO. 59 OF 2023
IN
ORDER BELOW EXH. 9
IN
RAD SUIT NO. 429 OF 2022
Shri Haji Mehmood Abdul Rahman Jalil
Pitalwala
Aged about 48 year, Occ. Business
Flat no.103, Osman Manor CHSL
Mukund Patil Lane, Behind BMC
Market, Mumbai400 058
Email ID: hajipitalwala@gmail.com
Mobile No.: 9819922691 ...Appellant/
(Original Plaintiff)
V/s.
1. Shri Ram Kumar Jalan Public Charitable Trust
Having Office at 35, Bombay Talkies
Compound Himanshu Rai Road,
Malad (W), Mumbai 400 064
2. Shri Ravindra Kumar Loknath Jalan
Aged 68 years, Occ: Business
3. Shri Gaurav Shok Jalan
Aged 42 years, Occ: Business
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4. Shri Sanjiv Lalitprasad Goenka
Aged 45 years, Occ: Business
5. Shri Ramkihshore Balkrishna Singhi
Aged 62 years, Occ: Business
No. 2 to 5 all Adults Indian Inhabitant and
Trustees of Ram Kumar Jalan Public Charitable Trust
having their address at 35, Bombay Talkies
Compound Himanshu Rai Road,
Malad (W), Mumbai 400 064.
6. Mrs. Mumtaz Rehman Pitalwala
Aged about 70 years, Occ: Housewife
7. Mr. Mohd Khalid Rehman Pitalwala
Aged about 38 years, Occ. Business
Both residing at Flat No. B/2, Goldstar CHSL,
Mukund Patil Lane, Off J. P. Road,
Andheri (West), Mumbai 400 058. … Respondents/
(Original Defendants)
Shri. D. D. Singh : Ld. Advocate for the appellants.
Shri. J. G. Damani : Ld. Advocate for the respondent Nos. 1 to 5.
Shri. Ritesh Singh : Ld. Advocate for resondent Nos. 6 and 7.
Coram : M. S. Pathan,
Additional Chief Judge,
&
Dinanath S. Dabhade, Judge
Court Room No. 41,
Date :17.02.2024
ORAL JUDGMENT : (Per Dinanath S. Dabhade, Judge)
Being aggrieved by order dt. 30.11.2023 passed below
application Exh. 9 by Ld. Judge of Trial Court Room No. 34 in RAD Suit
No. 429 of 2022 the appellant/original plaintiff has filed this appeal
under Sec. 34(1)(A) of the Maharashtra Rent Control Act, 1999. ( In
short the 'Rent Act') read with Section 104 and Order 43 Rule 1(R) of
the Code of Civil Procedure ( In short ' CPC). The parties are hereinafter
referred by their original nomenclature.
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Brief facts of the case are as under :
2. The plaintiff has filed the suit for declaration and injunction
in respect of the suit premises. The plaintiff has moved an application
Exh. 9 for granting temporary injunction restraining the defendants or
anybody claiming through them from forcefully dispossessing him from
the suit premises and/or disturbing and interfering with his peaceful
use, occupation and possession of the suit premises, further restraining
defendant Nos. 1 to 5 from transferring the rent receipt of the suit
premises in the name of defendant No.6 and/or defendant No.7 and/or
third party and from executing any documents, deed of any nature
whatsoever with defendant Nos. 6 and 7 to allot permanent alternative
premises in lieu of suit premises as well from paying transit rent and/or
allotting temporary transit premises in lieu of redevelopment of the suit
premises.
3. It is the contention of the plaintiff that defendant No.1 is a
public charitable trust, owners and landlords of the suit premises.
Defendant Nos. 2 to 5 are trustees of defendant No.1 trust. Defendant
No.6 is mother and defendant No. 7 is his brother. The defendants in
collusion with each other denying the plaintiff's exclusive tenancy right
of the suit premises. His late father late Haji Abdul Rahman Jalial
Pitalwala, during his lifetime was running and conducting business of
metal foundry work in the name and style of 'Swastik Engineering
Corporation' as a sole proprietor. The landlord used to issue rent
receipt either in his personal name or in the name of proprietary
concern.
4. Defendant No. 6 never carried out any business from the suit
premises, only out of love and affection and for the sake of convenience,
original tenant recorded name of defendant No. 6 in the record of his
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business establishment. During the lifetime of original tenant, the
plaintiff was assisting him in the business. After death of original
tenant, the plaintiff carried on business from the suit premises
continuously. Defendant No.6 was merely signatory of the bank
account of the said business. In the year 20172018, defendant Nos.6
and 7 behind back of the plaintiff changed the bank record. The plaintiff
came to know about the same in September, 2022. As business of
Swastik Engineering Corporation was completely closed since 2004 and
it has been rented on leave and licence business.
5. It is the contention of the plaintiff that after death of original
tenant, he is exclusive tenant and in possession of the suit premises
as Swastik Engineering Corporation has nothing to do with tenancy
right of the suit premises. Defendant No.7 behind his back, by
influencing defendant No. 6 has created false evidence in respect of the
suit premises. On 05.09.2022, when the plaintiff visited the suit
premises, defendant No.7 alongwith some unknown persons obstructed
him from opening the lock of the suit premises and threatened him that
henceforth he shall not use and occupy the suit premises. When he
went to lodge complaint against defendant No.7, duty officer refused to
take complaint. On the assurance of defendant No. 6 that no such act
would be committed by defendant No.7, the plaintiff has not taken any
action against defendant No.7. On 18.09.2022, defendant No.6 with
defendant No.7 visited the suit premises and threatened the plaintiff to
vacate the suit premises. They told to the plaintiff that defendant Nos. 1
to 5 allegedly have already agreed to transfer the rent receipt of the suit
premises in the name of third party. Hence, the plaintiff prayed for
grant of injunction as prayed.
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6. Defendant Nos. 1 to 5 have failed to file their reply, hence,
the application proceeded without their reply.
7. Defendant Nos. 6 and 7 have filed their reply Exh. 20 and
denied all allegations levelled against them. They have adopted their
written statement as a reply. It is their contention that defendant No. 6
being proprietor of Swastik Engineering Corporation is a lawful monthly
tenant of the suit premises. As the plaintiff has not challenged their
tenancy rights of the suit premises and rent receipt issued by defendant
No.1 in favour of defendant No.6, the relief sought by the plaintiff
cannot be granted. The rent receipts in the name of A. R. Pitalwala are
not in respect of the suit premises but the same is in respect of Shed No.
245 and suit premises is shed No. 29. The plaintiff has deliberately
annexed the rent receipt in respect of Shed No. 25. Since the inception
of tenancy in respect of the suit premises, the tenancy was always in the
name of Swastik Engineering Corporation and defendant no. 6 is
proprietor of it.
8. The defendants denied that the plaintiff is in use,
occupation and possession of the suit premises. He is running his
business in the name and style of M/s. Indu Plastic Industries, Malad.
The defendants are also in possession of all requisite documents of the
suit premises. The plaintiff is attempting to dispossess these defendants
from the suit premises. They denied that balance of convenience lies in
favour of the plaintiff and he would suffer loss, if the application is
allowed. Hence, prayed for rejection of the application with
compensatory costs.
9. The plaintiff has filed Affidavit in rejoinder and reiterated
the contents in the application. Defendant Nos. 6 and 7 have filed their
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surrejoinder vide Exh. 28 and denied averments made in the affidavit
in rejoinder by the plaintiff.
10. After hearing of both sides, Ld. Trial Court has rejected
application Exh. 9 vide order dt. 30.11.2023. Being aggrieved by the
impugned order, the plaintiff has preferred the appeal on the grounds
that impugned order of the Ld. Trial Court is against the provisions of
law. Ld. Trial court miserably failed to consider that the plaintiff has
made out prima facie case to grant injunction in terms of prayer clause
(a). Ld. Trial court miserably failed to consider that the plaintiff has
produced ample documentary evidence, prima facie indicating plaintiff's
tenancy right and possession over the suit premises. Ld. Trial Court
erred by mixing the question of tenancy right of individual i.e. plaintiff
and defendant Nos. 6 and 7 with the question of right of Swastik
Engineering Corporation. Ld. Trial Court miserably failed to consider
that defendant No. 6 was/is the proprietor of Swastik Engineering
Corporation that itself does not mean that defendant No.6 was/is tenant
of the suit premises. Ld. Trial Court failed to consider that defendant
No. 6 has not produced any documents in support of her case that she
has acquired the suit premises and is allege proprietor of Swastik
Engineering Corporation.
11. Heard Ld. Advocates for both sides. We have gone
through the written argument filed the parties. Having regard to facts
and circumstances of the case, following points along with our findings
are as under :
POINTS FINDINGS
1. Whether the prima facie case proved by the
plaintiff ?
Partly affirmative
2. Whether balance of convenience lies and Partly affirmative
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irreparable loss will cause, in favour and to
the plaintiff, if the of injunction is not
granted ?
3. Is interference at the hands of this Court
needed ?
Yes
4. What order ? As per final order.
R E A S O N S
As to Point Nos. 1 to 4
12. Before touching to the merits of the application, it is just
and proper to have look at the prayer clauses of the application, such
as:
(a) the plaintiff has prayed to restrain the defendants by an order of
injunction from forcefully dispossessing him from the suit premises,
(b) to restrain defendant Nos. 1 to 5 from transferring the rent receipt
of the suit premises either in the name of defendant No. 6 or defendant
No. 7 or any third party,
(c) To restrain defendant Nos. 1 to 5 from executing any documents of
whatsoever nature with defendant Nos. 6 and 7 to allot permanent
alternative premises in lieu of the suit premises and
(d) to restrain defendant Nos. 1 to 5 from paying transit rent or
allotting transit premises in lieu of redevelopment of the suit premises.
13. On going through the application, it is very much clear that
there is dispute in respect of the tenancy and possession of the suit
premises between the plaintiff and defendant Nos. 6 and 7. Defendant
Nos.1 is the landlords of the suit premises and 2 to 5 are the trustees of
defendant no. 1. Defendant no.6 is the mother of the plaintiff and
defendant No. 7 is his brother. There is no nexus of defendant Nos. 1 to
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5 to the said dispute. Despite of said fact, the plaintiff has prayed the
relief against defendant Nos. 1 to 5 also. Let’s see whether the plaintiff
has proved the prima facie case to get the equitable relief in his favour.
14. According to the plaintiff, deceased Haji Abdul Rehman
Jalil Pitalwala (original Proprietor ) during his lifetime on 01.04.1966
had acquired tenancy rights of the suit premise and started the business
of metal by name and style ‘Swastik Engineering Corporation’ as a sole
proprietor of it. The plaintiff, defendant Nos. 6 and 7 are his legal
representatives. The landlord sometime use to issue rent receipt either
in the name of original proprietor or in the name of 'Swastik
Engineering Corporation'. Original proprietor got married with
defendant No.6 in the year 1967. During the lifetime of original
proprietor, the plaintiff was assisting him in the business. Original
proprietor expired on 09.02.1985. After his demise, the plaintiff being
monthly tenant, continued in possession of the suit premises, paying the
rent and in custody of rent receipt of the suit premises. Defendant No. 6
never carried on any business in the suit premises but due to love and
affection, original proprietor had recorded her name in the record of the
business establishment.
15. At the same time, defendant Nos. 6 and 7 have denied the
contention of the plaintiff and came with the story that defendant No. 6
has acquired the suit premises in the year 1970 in the name of ‘Swastik
Engineering Corporation’ out of her own income. In this crucial
circumstance of the contrary stand of the parties, it is prima facie
necessary to see infact who had taken the suit premises and started
'Swastik Engineering Corporation' in the suit premises.
16. To show the same both parties have various documents on
record. We have gone through those documents. The plaintiff has filed
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Wedding Card dt. 11.06.1967 of original proprietor and defendant No.
6 wherein the firm name is shown as ‘Swastik Engineering Corporation’.
A copy of Udyam registration certificate along with rejoinder Exh. 4.
Electric bill was issued in the year 1965 for M/s. Swastik Engineering
Corporation. From the said Wedding Card, electric bills and Certificate,
it revealed that defendant No.6 has been married with original
proprietor in the year 1967, the registration of Udyam enterprise was
recorded in the name of defendant No.6 and date of commencement of
business is mentioned as 11.04.1960. The unit name is mentioned as
‘Swastik Engineering Corporation’ and the owner name is Smt. Mumtaz
Abdul Rehman Pitalwala i.e. defendant No. 6. The registration
certificate of establishment issued under Maharashtra Shops and
Establishment Act, 1948 for year 2012 to 2016, Shops and
Establishment receipt issued by BrihanMumbai Mahanagar Palika on
13.12.2011 and 06.05.2015, Summons to an accused in the case No.
380 of 2019 of Metropolitan Magistrate Court dt. 20.07.2011, receipt
of payment dt. 16.03.2019 to Metropolitan Magistrate Court, copy of
noncognizable offence registered with Malad Police Station on
05.10.2022, 18.10.2022 are in the name of defendant No. 6 issued for
Swastik Engineering Corporation.
17. There are some rent receipts having different shed
numbers. Receipt dt. 02.07.1976 issued in the name A. R. Pitalwala is
for Shed No. 245 and rest of the rent receipts are issued for Shed No.
29. In response to said different shed numbers, Ld. Advocate for the
plaintiff submitted that in fact the receipt has been issued on
02.07.1976 was for shed no. 29 but due to mistake wrong shed No. 245
has been mentioned on it. Some of the rent receipts were issued in the
name of original tenant and thereafter, same were issued in the name of
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Swastik Engineering Corporation. However, the fact remain as it is, the
rent receipts have been issued in the name of Swastik Engineering
Corporation and for shed no. 29, unless it has been proved that shed
No. 245 was wrongly mentioned and that receipt has been issued in the
name of original tenant in his individual capacity and not for Swastik
Engineering Corporation.
18. It is the contention of the plaintiff that in the year 2017
2018, defendant Nos. 6 and 7 behind the back of the plaintiff, by
changing the mobile number of the plaintiff recorded their mobile
number to bank account. The plaintiff came to know about change of
mobile number in September 2022. Just to have phone number or
mobile number attached with the account of any firm or enterprise,
does not mean that the phone or mobile number holder is in possession
of the premises wherein the said firm or enterprise was conducting the
business and he is running of the said business.
19. From the above referred documents, it is seen that the
Swastik Engineering Corporation was came in existence from
11.04.1960 i.e. much prior to the marriage of defendant No. 6 with
original proprietor at the address of the suit premises and the said
documents were issued in the name of defendant No. 6 being a
proprietor of Swastik Engineering Corporation. It is prima facie proved
from the rent receipts that Swastik Engineering Corporation is shown
as a tenant of the suit premises and being a proprietor, defendant No. 6
doing the business, in possession of the suit premises and therefore all
licenses have issued on her name.
20. The contention of the plaintiff that he is the exclusive
tenant of the suit premises, running the business by name and style
Swastik Engineering Corporation, Swastik Engineering Corporation has
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nothing to do with the tenancy rights of the suit premises and
defendant Nos 6 and 7 are not having any connection with the suit
premises, has not been prima facie proved. At the same time, the
contention of defendant Nos. 6 and 7 that defendant No. 6 has acquired
the suit premises in the name of ‘Swastik Engineering Corporation’ in
the year 1970, has not been prima facie proved. To prove said
respective contentions of the parties needs full trial.
21. From the above discussion and the documents filed on
record, it is clear that the plaintiff prima facie failed to prove his case of
exclusive tenant of the suit premises and his possession over it. Here, it
is pertinent to note that the plaintiff has not sought any relief of
injunction to restrain defendant Nos. 1 to 5 to deal with Swastik
Engineering Corporation, on whose name the rent receipts have been
issued. But the relief has been sought that defendant Nos. 1 to 5 not to
transfer rent receipt either in the name of defendant No. 6 alone or
defendant Nos. 6 and 7 or to third party, restrain them to enter into an
agreement with defendant Nos. 6 and 7 and to pay transit rent and to
allot temporary transit premises in lieu of the suit premises. It appears
that said reliefs have been sought against defendant Nos. 6 and 7 in
their individual capacity and not defendant No. 6 being a proprietor of
Swastik Engineering Corporation.
22. It is a matter of record that there is dispute between the
plaintiff and defendant Nos. 6 and 7 in respect of the business and the
suit premises and the said dispute is subjudice before the court, in that
event, if the rent receipt would be transferred in the name of anybody,
it will certainly cause irreparable loss to the parties and hence, to that
extent balance of convenience lies in favour of the plaintiff. Therefore,
it is just and proper to restrain defendant Nos. 1 to 5 from transferring
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the rent receipt in the name of anybody and the plaintiff is entitled to
get the equitable relief to that extent. Therefore, the plaintiff is not
entitled to get the relief as prayed in prayer clause (a), (c) and (d) of
the application and this Court requires to interfere in the given findings
and in impugned order passed by Ld. Trial Court. Hence, we answer
point Nos. 1 and 2 in partly affirmative, Point No. 3 in affirmative and
in answer to point No. 4 pass the following order .
O R D E R
1. Misc. Appeal is partly allowed.
2. Impugned order dt. 30.11.2023 passed below
application Exh. 9 by Ld. Judge of Trial Court in
RAD Suit No. 429 of 2022, is hereby set aside.
3. Application Exh. 9 is partly allowed.
4. Defendant Nos. 1 to 5 are hereby restrained to
transfer the rent receipt, which is standing in the
name of ‘Swastik Engineering Corporation’, to
anybody.
5. Parties to take note.
6. Inform Ld. trial Court accordingly.
I agree,
sd/ sd/
(M. S. Pathan) ( Dinanath S. Dabhade)
Additional Chief Judge, Judge
C. R. No. 41 C. R. No. 41
Court of Small Causes,(B.B) Court of Small Causes,(B.B)
17.02.2024 17.02.2024
Judgment dictated on : 17.02.2024
Judgment transcribed on : 17.02.2024
Judgment checked & signed on : 17.02.2024
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