Order 4

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT – 9
IN
R.A.E. & R. SUIT NO. 412 of 2022
(CNR No. :- MHSCA3-001091-2022)
Mrs. Grace w/o Augustine Pinto
Through her Constituted Attorney viz.
Mr. Vincent Elias Albuquerque ... Plaintiff
Versus
Mrs. Naznin Joseph D’souza ... Defendant
Mr. A. M. Saraogi, Ld. Advocate for the Plaintiff.
Mr. R. L. Dubey, Ld. Advocate for the Defendant.
Coram :- R. N. Bansal, Judge
C. R. No. 36 [B.B.]
Date :- 12/06/2023
ORDER :
This is an application filed by the plaintiff for directing
the defendant pending the hearing and final disposal of the suit, to
handover the vacant possession of the suit premises and the
defendant be restrained from encroaching upon any of the portion
of the property being the Bungalow along with open space situated
on the property including the garage situated on the ground floor.
2. Perused application and reply filed by defendant. Heard
advocate for both parties at length. Perused record.
3. It is submitted by the plaintiff in plaint that, she is the
lawful owner in respect of the premises being the Bungalow known
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as La-Petite fleur along with the plot of land bearing CTS No.
C/587 admeasuring 943 sq. yard. situated at La Petite Fleur, 30 St.
Andrews Road, Bandra (West), Mumbai 400 050 (hereinafter
referred to as the "suit property"). The Defendant is a tenant in
respect of the premises admeasuring 690.50 sq.ft. situated on the
part of the 1st floor on the extended portion of the suit property
(hereinafter referred to as the "suit premises") till the time she lost
her protection under the provisions of Maharashtra Rent Control
Act.
4. It is further submitted by the plaintiff that, there are
various litigation in respect of the suit property and some of the
litigation is still pending before the various Courts. Though she has
been put in possession of the entire Bungalow somewhere in the
year 2004, however, it is found that the defendant is occupying the
suit premises. Upon inquiries it was told that originally, the
husband of the defendant was the tenant in respect of the suit
premises however, in the matrimonial disputes interse between
the defendant and her husband, she has been made entitled to
claim tenancy rights in respect of the said premises under a decree
passed by the Hon’ble Family Court.
5. It is further submitted by the plaintiff that, the defendant
had filed a suit before Hon’ble City Civil Court at Mumbai and
sought relief that her possession should not be disturbed save and
except by following due process of law. Though the defendant,
apart from the premises occupied by her, had also claimed her
rights in respect of the garage situated on the other part of the
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property, the Court declined the same. The plaintiff had no
intention to disturb possession of the defendant and accepted her
as a tenant. Accordingly the defendant had been forwarding
necessary enclosing letters and cheques in respect of rent payable
by her and accept the plaintiff as her landlord in respect of the suit
premises.
6. It is submitted by the plaintiff in present application that,
since the entire Bungalow including the portion occupied by the
defendant is in dilapidated condition, the same is required to be
demolished and as far as possible, requires to be redeveloped. The
defendant is only occupant in respect of the said portion of the said
Bungalow, save and except the plaintiff who is in possession of rest
of the premises of the said Bungalow, in the absence of the
defendant vacating the said premises, the plaintiff is unable to
even think of re-developing the same. Since the Bungalow by itself
is in dilapidated condition, if any mischief takes place, the plaintiff
could be hold responsible for any such consequences.
7. It is further submitted by the plaintiff that, the manner in
which, the defendant is trying to encroach upon the portion
including the garage, to which she is not entitled to, during the
pendency of the present suit, the rights of the plaintiff are required
to be protected. Therefore, the present application it filed for
temporary injunction directing defendant to handover the
possession of the suit premises subject to provide necessary
compensation by considering the ownership basis as per the
market rate in respect of the area occupied by her or in alternate,
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by paying monthly compensation for obtaining alternate premises
till the time such re-development takes place or in alternate, the
plaintiff providing an equivalent area in the same vicinity and
more particularly, within the radius of 2 k.m. and/or on such
terms as this Court may deem fit and proper. It is also being
prayed that pending the hearing and final disposal of the suit, the
defendant be restrained from encroaching upon any of the portion
of the suit property including the garage situated on the ground
floor in any manner whatsoever. Therefore, it is prayed that the
present application may be allowed.
8. The defendant has filed reply at Exh. 13 and submitted
that, Mr. Daniel Paul Desouza, Mrs. Martha Desouza, Mrs.
Murielle Currimbhoy, Mr. Rodney D’Silva were leases land bearing
plot no. 177 and portion of plot no. 176 owned by Salsette Co-
operative Housing Society, for a period of 999 years and were
related to her ex-husband Mr. Joseph Desouza. After taking said
plot on lease a Bungalow i.e. La Petite Fleur (suit property) was
constructed. In the year 1985 she constructed a structure on the
first floor admeasuring about 690.560 sq.ft. with due approval and
plans from the concerned Authorities, in extension of La Petite
Fleur.
9. It is further submitted by the defendant that, under the
decree of divorce passed in M.J. Petition No. 1529 of 1991 dated
23/12/1994 and counter petition it was declared that the suit
premises in extension to the building/bungalow known as “La
Petite Fleur” standing on the property was matrimonial house was
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constructed by defendant from her own funds and the lease in
respect of the suit premises was created in her favour under the
said decree. Under the said decree the lease was created with right
to use terrace above the suit premises in common with other
residents of the said building viz. A separate staircase and with
right to sell, assign, deal with and or dispose of rights coupled with
possession of the suit premises.
10. It is further submitted by the defendant that, somewhere
in the year 2006 or thereabout the plaintiff started claiming rights
in respect of the suit property including suit premises. The plaintiff
informed that she is the successor in interest of her ex-husband
and his family members and the plaintiff showed ignorance about
rights of defendant in respect of the suit premises and a garage and
also informed that he has obtained I.O.D. for redevelopment of the
suit property. Therefore, the defendant filed S.C. Suit No. 4459 of
2006 before the Hon’ble City Civil Court which was partly decreed
by judgment dated 04/05/2012. The defendant filed Appeal No.
1688 of 2013 for challenging part of the said order and decree
pertaining to garage before Hon’ble High Court which is pending
for hearing and final disposal.
11. It is further submitted by the defendant that, meanwhile
the plaintiff started negotiating with her to purchase her right, title
and interest in respect of the suit premises and pressurizing and
threatening the defendant to demolish the suit premises. The
plaintiff posted 60 or more bouncers on the property and installed
several CCTV cameras all around bungalow. The plaintiff also put
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up patras in some areas around perimeters of bungalow including
over gates. The plaintiff’s staff blocked the parking spot.
12. It is further submitted by the defendant that, she is the
tenant in respect of suit premises. The plaintiff has not disclosed
under which document the plaintiff acquired the rights in respect
of the suit property and what is the name of the alleged lessor from
whom the plaintiff acquired rights. The Hon’ble High Court vide
its decree dated 23/12/1994 declared that defendant is lessee in
respect of the suit premises with right to terrace over the suit
premises and also right to sell, assign and transfer the leasehold
rights.
13. It is further submitted by the defendant that, the
defendant has been sending the cheques for rent to the plaintiff
under advise of her earlier advocate without confirming the rights
of the plaintiff and without going through the documents upon
which the plaintiff is claiming ownership in respect of the
bungalow and the suit premises. However, the defendant learn
that the application of plaintiff to Salsette Co-operative Housing
Society to admit his name in place of original lessee in respect of
the suit premises was rejected. There is no registered document
executed in favour of the plaintiff by the lessees of the suit
property.
14. It is further submitted by the defendant that, she is
divorcee and the suit premises is only place of residence for her in
Mumbai. The Bungalow including the suit premises is not in
dilapidated condition as alleged. The defendant recently came
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across public notice published in Free Press Journal on
04/10/2022 by Salsette Catholic Co-operative Housing Society,
whereby public in general were warned that the said society has
not permitted the plaintiff or any other person to develop the
property and any person dealing with the plaintiff or Allen D’Silva
will deal with their own risk. Therefore, it is prayed that,
injunction application be dismissed with costs.
15. In support of her contention the advocate for defendant
has relied upon the following citations:
(a) Zilla Parishad, Gadchiroli and Ors. Vs. Chandramala
w/o. Fattu Khobragade, 2011(5) Mh.L.J.52;
(b) Sunder Shaekhar Vs. Shamshad Abdul Wahid
Supariwala and Ors., 2014(1) Mh.L.J. 738 and
(c) Metro Marins Vs. Bonus Watch Co. Pvt. Ltd., 2004(2)
RCR 371.
16. The plaintiff has filed rejoinder at Exh. 14 and replied to
the contents of reply filed by the defendant.
17. From the contention of application and reply filed by the
defendant following points arises for my determination and I have
recorded my findings thereon for the reasons stated as under:
POINTS FINDINGS
1) Whether the plaintiff has made out
prima - facie case in his favour ?
: No
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2) Is the balance of convenience lies in
favour of the plaintiff ?
: No
3) Whether the plaintiff will suffer
irreparable loss if injunction as
prayed is not granted ?
: No
4) What order ? : As per final
order
REASONS
As to Point No. 1 to 4:-
18. The above points are interlinked and interwoven to each
other, therefore, to avoid repetition it is desirable to decide the
same altogether.
19. The plaintiff has filed present suit for eviction of the
defendant from the suit premises on the ground of arrears of rent
and on the ground of requirement of suit premises for demolition
and for carrying out necessary reconstruction as per the plan to be
approved by the office of the BMC and for recovery of arrears of
rent. On perusal of plaint it appears that, the plaintiff has not
mentioned anything about the service of demand notice for arrears
of rent to the defendant. So also, the plaintiff has not made any
specific averment in regard to redevelopment of property i.e.
availability of funds, period when he wants to carry out
reconstruction, alternative accommodation to tenants etc. The
plaintiff has also not filed on record any document to show that,
the suit premises is in dilapidated condition. Mere perusal of
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plaint it prima faciely seems that the pleadings in respect of
grounds for eviction are vague.
20. The plaintiff in her plaint as well as in application stated
that, she is claiming possession in respect of suit property
somewhere in the year 2004 having acquired the rights in respect
thereof. But, the plaintiff has not specifically mentioned from
whom he acquired his rights in respect of the suit premises. The
defendant has denied the rights of plaintiff over the suit premises
as plaintiff has not provided any material showing his ownership
or right over the suit premises. On perusal of plaint as well as
application and also rejoinder of plaintiff to the say of defendant
on present application, the plaintiff has not specifically given any
details about his rights over the suit premises. It appears that, the
plaintiff willfully keeping silence about the contents regarding his
right over the suit property. Therefore, prima faciely the rights of
plaintiff over the suit property seems to be disputed.
21. Furthermore, the plaintiff himself in his plaint stated that,
there are various litigation in respect of property in question and
some of litigation are still pending before the various Courts. But,
the plaint is again silent in respect of the details and about the
nature of proceedings etc. Therefore, whether those proceedings
are affecting the right of parties in suit premises or not is not
clearly seen.
22. It is an admitted fact that, the defendant is a tenant. It
also appears that, the defendant has filed suit against one D’silva
in Hon’ble City Civil Court. From the pleadings it also prima
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faciely appears that, there is dispute regarding the possession of
garage between the parties. Therefore, from the pleading of
plaintiff no cause of action or no specific ground for eviction is
prima faciely seen against the defendant. Consequentially, the
prima facie case does lies in favour of plaintiff. As prima facie case
is not in favour of plaintiff and as the case of defendant seems
more probable than the case of plaintiff the balance of convenience
is also not in favour of plaintiff.
23. The plaintiff is seeking temporary injunction in prayer
clause (a) of the present application in tune of eviction of
defendant from the suit premises for redevelopment of property
on certain conditions imposed on plaintiff. The plaintiff has filed
present suit for same prayer. If at this stage without hearing the
case on merit the prayer is allowed the right of tenant i.e.
defendant will infringed. So also, the Court cannot grant
mandatory injunction against any of the party at interim stage,
unless and until it is so much necessary to protect the rights of the
parties. In case in hand I do not found such urgency and I do not
found any irreparable losses to the plaintiff if prayer clause (a) is
not allowed.
24. So also it appears that, there is dispute regarding the
possession of garage between the parties. The plaintiff has not
established his possession over the garage by giving any cogent
evidence. Therefore, prima faciely the possession of plaintiff over
the disputed garage is not proved. Hence, the plaintiff is also not
entitled for prayer clause (b).
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25. The defendant has relied upon the citations Zilla
Parishad, Gadchiroli (supra) , Sundar (supra) and Metro Marines
(supra). The facts and circumstances of the present cases are
totally different. Hence, with due respect I am of the view that
above said citations are not applicable to the case of the defendant.
26. Consequentially, I answer point nos. 1 to 3 in the negative
and in answer to point no. 4 I pass the following order.
: ORDER :
1. The application stands rejected.
2. Both parties to take note.
(Dictated and pronounced in open Court.)
(R. N. Bansal)
Date : 12/06/2023 Judge, C.R. No. 36
Order dictated and typed on : 12/06/2023
Order checked and signed on : 15/06/2023
(R. N. Bansal)
Judge, C.R. No. 36
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