Order 2

Order Details: Order on Exhibit
Pdf Text: 1 Exh 10 in L.E. & C. Suit No. 143/2021
CNR No. MHSCA30011112021
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
Order Below Exhibit 10
In
L.E. & C. Suit No. 143/2021
Ms Sangeeta Narayan Punjabi Plaintiff.
V/s.
Mr Sairaram Lakhaji Mali Defendant.
YMK Legal, advocate for the plaintiff.
Coram : Shri B.T. Zirape, Judge.
C.R. No. 38 (B.B.)
Date : 06.01.2023.
Oral Order :
1) Perused the application. Perused record and
proceeding. This is an application filed on behalf of the plaintiff
for temporary injunction restraining the defendant from creating
any third party right in the suit premises viz. Shop No. 11A,
admeasuring 98 sq.ft. carpet area situated on the ground floor of
the building known as Ellora Coop. Hsg. Socty. Ltd., situated at
Plot of land bearing C.T.S. No. E777 at 4 th Road, Khar (W),
Andheri, Mumbai 400 052. This premises is hereinafter referred to
as the 'suit premises' for the sake of brevity.
2) According to the plaintiff, she is the owner of the suit
premises. The father of the plaintiff namely Narayan T. Punjabi
was the erstwhile owner of the suit premises. The plaintiff
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2 Exh 10 in L.E. & C. Suit No. 143/2021
received the suit premises vide gift deed Dtd. 27.11.2019 executed
by her father in her favour. The father of the plaintiff was
approached by the defendant. The defendant expressed his desire
to take suit premises on leave and licence basis to conduct and
carry out commercial activities in the suit premises under the
name and style of M/s. Mahalaxmi Jewellers. The father of the
plaintiff agreed the proposal of the defendant and entered into
registered leave and licence agreement on Dtd. 29.05.2019 with
the defendant for a period of 12 months commencing from
01.05.2019 to 30.04.2020. The monthly license fee was fixed at ₹
1 Lakh per month. An amount of 5 Lakh is taken as the security	₹
deposit from the defendant.
3) The defendant is merely a licensee of the suit
premises by virtue of leave and licence agreement executed in
between him and the plaintiff's father. The defendant was in
absolute use and occupation of the suit premises for the period of
12 months commencing from 01.05.2019 to 30.04.2020. The
defendant did not choose to renew the leave and licence
agreement. Despite expiry of term of leave and licence agreement,
the defendant continued to be in possession of the suit premises.
The defendant paid the license fee till September 2020. The
plaintiff visited the suit premises on 26.09.2020 and orally
informed the defendant to vacate the suit premises on or before
01.10.2020. However, defendant continued to be in possession of
the suit premises. The defendant is in wrongful possession of the
suit premises. There is apprehension that he may create third
party right in respect of the suit premises. The plaintiff apprehend
irreparable loss and injury if the temporary injunction is not
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granted in her favour. According to the plaintiff, balance of
convenience lies in her favour. Finally, she requested for grant of
the application.
4) The defendant did not appear in the suit. Suit is
proceeded Expartie against him vide order below Exh. 1 Dtd.
18.07.2022. As such, no reply is filed by the defendant to the
present application by appearing in the suit. From the pleadings
and documents available on record, the following points do arise
for my determination. I have recorded my findings against each of
them for the reasons stated below.
POINTS FINDINGS
1) Whether the plaintiff proves the
prima facie case?
In the Affirmative
2) Whether the balance of
convenience lies in her favour ?
In the Affirmative
3) Whether plaintiff proves that the
irreparable loss will be caused to
her if the injunction as prayed is
not granted ?
In the Affirmative
4) What order ? The application is
allowed.
R E A S O N S
As to Point No. 1 to 3 :
5) The points No. 1 to 3 are interlinked. So, I have taken
them together for my discussion here in order to avoid repetition
and for the sake of brevity. Heard learned advocate for the
plaintiff. Learned advocate for the plaintiff argued that the suit is
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proceeded Expartie against the defendant. The plaintiff became
the owner of the suit premises as per the gift deed executed by her
father. Already, the period of leave and licence agreement is
expired. The defendant has also filed R.A.D. Suit before the court.
The interim application in the said suit is rejected. The defendant
failed to pay the license fee. There is apprehension in the mind of
the plaintiff that the defendant might create third party interest in
the suit premises. Finally, learned advocate for the plaintiff
requested for grant of the application.
6) The plaintiff has to prove the prima facie case in her
favour. She has to further prove the balance of convenience lies in
her favour. She also has to prove that she will suffer irreparable
injury if the application is rejected. The defendant failed to
appear in the suit though served with the suit summons.
Therefore, suit proceeded Expartie against him. As the defendant
not appeared in the suit therefore, the present application is
proceeded without any reply of the defendant. As such, the
present application is not resisted by the other side.
7) I have gone through the record and proceeding of the
present matter. The present suit appears to be filed for eviction
and for compensation against the defendant on the basis of leave
and licence agreement executed on Dtd. 29.05.2019. The
photocopy of said agreement is filed on record. It appears that the
said leave and licence agreement is registered before the Sub
registrar. It is for the period of one year commencing from
01.05.2019 to 30.04.2020. As per the said leave and licence
agreement, license fee of 1 Lakh per month is fixed in between	₹
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the parties. According to the plaintiff, the defendant failed to pay
the license fee from October 2020 onwards. The period of leave
and licence expired on 30.04.2020. It appears that defendant
continued his possession over the suit premises and paid the
monthly license fee till September 2020.
8) The present application is not resisted by the other
side by appearing in the matter. Admittedly, defendant is in
possession of the suit premises. The leave and licence agreement is
executed in his favour. Considering the ongoing controversy in
between the parties, the possibility of creating third party interest
in the suit premises at the hands of defendant cannot be ruled out.
Moreover, the contentions of the application are not denied by the
other side. The application remained unopposed. I find no any
reason to disbelieve the contentions of the application. Therefore,
I am of the view that the plaintiff has proved prima facie case in
her favour. The defendant is in possession of the suit premises.
Therefore, he needs to be restrained by way of temporary
injunction from creating third party right and interest in the suit
premises. Therefore, the balance of convenience lies in favour of
the plaintiff. If the defendant created any third party right and
interest in the suit premises, then there will be multiplicity of the
proceeding. In that event, the plaintiff will suffer irreparable loss.
As such, the argument advanced on behalf of the plaintiff appears
to be justifiable. Hence, I answer point No. 1 to 3 in the
affirmative.
As to Point no. 4 :
9) In the light of my affirmative finding on point No. 1 to
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3, the present application deserves to be allowed. In this view of
the matter, I proceed to pass the following order :
ORDER
1) The application is allowed as observed above.
2) The defendant, either by himself or through any
person, is hereby restrained by way of temporary
injunction from creating any third party right &
interest in any way in respect of the suit premises
till final disposal of the suit.
3) Costs in cause.
(B.T. Zirape)
Judge.
Date : 06.01.2023. C.R. No. 38.(B.B.)
Order dictated on : 06.01.2023.
Order transcribed on : 06.01.2023.
Order checked & signed on : 06.01.2023.
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