Interim Order 23

Order Details: Order on Exhibit
Pdf Text: ..1..
(CNR No. MHSCA3-001177-2022)
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDE BELOW EXHIBIT NO.9
IN
R.A.D. SUIT NO. 429 OF 2022
Haji Mehmood Abdul Rahman Jalil Pitalwala ... Plaintiff
Versus
1. Ram Kumar Jalan Public Charitable Trust
and others … Defendants
Shri. D. D. Singh, Advocate for the plaintiff.
Shri. Sanjeev Singh i/b. Shri. Ritesh A. Singh, Advocate for defendant
Nos. 6 and 7.
Coram : Shri. A. J. Fatale, Judge.
C.R.No.34 (BB).
Date : 30.11.2023.
ORAL ORDER :-
1. Perused the application, reply filed by defendant Nos.6
and 7, rejoinder, sur-rejoinder and record.
2. Present application is filed by plaintiff for granting
temporary injunction that defendants or anybody claiming through
them be restrained from forcefully dispossessing plaintiff from suit
premises and/or disturbing and interfering with plaintiff’s peaceful
use, occupation and possession of the suit premises. Plaintiff has also
prayed for granting temporary injunction against defendant Nos.1 to
5 or anybody claiming through them be restrained from transferring
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 1 of 26 --
..2..
the rent receipt of suit premises in the name of defendant No.6
and/or in the name of defendant No.7 and/or in the name of third
party and from executing deed/s, document/s, agreement/s of any
nature whatsoever with defendant Nos.6 and 7 to allot permanent
alternative premises in lieu of suit premises as well as from paying
transit rent and/or allotting temporary transit premises in lieu of
redevelopment suit premises.
3. It is the contention of plaintiff that he has filed present
suit for declaration and injunction more particularly mentioned in the
plaint. Plaintiff has stated that the averments made in the plaint be
treated as part and parcel of present injunction application. Plaintiff
has averred in the plaint that late Haji Abdul Rahman Jalil Pitalwala
i.e. deceased original tenant, during his lifetime was lawful monthly
tenant in respect of Shade/Gala No.29, admeasuring 507 square feet,
comprising of Ground Floor with loft, situated at Bombay Talkies
Compound, Himanshu Rai Road, Malad (W), Mumbai-400 064.
( This premises is hereinafter referred to as the “suit premises”). The
suit premises is made of brick masonry wall having A.C. Shed roof,
boundaries of which are mentioned in paragraph No.1 of the plaint.
4. Defendant No.1 is a public charitable trust and are
owner and landlord of suit premises. Defendant Nos.2 to 5 are
trustees of defendant No.1-trust. Defendant No.6 is the mother of
plaintiff and defendant No.7 is brother of plaintiff. Defendants in
collusion and at connivance with each other denying plaintiff's
exclusive tenancy right over the suit premises. Defendant Nos.1 to 5
are aiding and abetting defendant Nos.6 and 7 to grab plaintiff's
exclusive tenancy right over the suit premises.
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 2 of 26 --
..3..
5. Late Haji Abdul Rahman Jalil Pitalwala during his
lifetime on or about 01.04.1961 acquired tenancy right of suit
premises. He expired on 09.02.1995. Plaintiff and defendant Nos.6
and 7 are heirs and legal representatives of deceased original tenant.
The deceased original tenant much prior of acquiring suit premises,
was running and conducting business of metal foundry work in the
name and style of Swastik Engineering Corporation as a sole
proprietor of it. The landlord used to issue rent receipt either in the
personal name of deceased original tenant or in the name of
proprietary concern. After the death of original tenant, plaintiff in
capacity of monthly tenant in respect of suit premises has been
paying monthly rent of it and is in lawful custody of rent receipt
thereof. Subsequently deceased original tenant started running the
business of PVC footwear in the same name and style of Swastik
Engineering Corporation manufacture of PVC Footwear and etc.
Defendant No.6 never carried out any business from the suit premises
as she was fully dependent on deceased original tenant and out of
natural love and affection and only for the sake of convenience,
deceased original tenant recorded name of defendant No.6 in the
record of said business establishment.
6. During the lifetime of deceased original tenant, plaintiff
was assisting him and was running and conducting the business from
the suit premises and using and occupying the suit premises along
with deceased original tenant. After the death of deceased original
tenant, plaintiff continued and carried on business from the suit
premise and looked and maintained the affairs and activities of the
said business from the suit premises. Plaintiff's mobile number was
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 3 of 26 --
..4..
registered in the bank account of said business. Defendant No.6 was
merely signatory of current bank of account of said business and it
was the plaintiff who was operating said bank account for the
purpose of running said business and he only used to take signatures
of defendant No.6 for deposits and issuance of cheques only.
7. Subsequently in the year 2017-2018 defendant No.6 and
7 behind back of plaintiff, changed the said record and thereby got
their mobile registered under the said bank account number and
plaintiff came to know about the same recently in September 2022
and prior thereto he was absolutely not aware of the same because
the business of said Swastik Engineering Corporation was completely
closed since the year 2004 and since the year 2004 onwards till
December 2020 suit premises had been rented out on leave and
license basis as business carried on from suit premises was running
huge loss, with the consent and knowledge of defendant No.1
Swastik Engineering Corporation is not registered under GST as it is
not in existence since 2004. After the death of deceased original
tenant plaintiff is exclusive tenant of suit premises as the said Swastik
Engineering Corporation has nothing to do with tenancy right over
the suit premise.
8. Defendant No.7 was also looked after and maintained by
plaintiff being the youngest member in the family. Till the year 2010
defendant No.7 was aged 28 years and was not running any business
and was totally dependent upon plaintiff. Since the year 2010
onwards defendant No.7 started creating conflict in the family and
always used to influence defendant No.6 against plaintiff. At the
request of defendant No.6, plaintiff allowed him to collect and
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 4 of 26 --
..5..
recover monthly license fee from the licensee of suit premises and
taking undue advantage thereof, defendant No.7 behind back of
plaintiff and by influencing defendant No.6 appear to have created
false evidence in respect of the suit premises. Defendant Nos.6 and 7
in order to create false evidence, without knowledge of plaintiff
appear to have paid electricity bills of suit premises whereby they
appear to have been custody of those electricity bills.
9. Surprisingly looking to the present situation of
redevelopment of entire Bombay Talkies compound wherein the suit
premises is situated, defendant Nos.6 and 7 with an intention to
claim absolute right in allotment of alternate premises in lieu of suit
premises since September 2022 started disputing plaintiff's exclusive
right in the suit premises. On 05.09.2022 when plaintiff as per
regular routine visited suit premises, plaintiff observed that
defendant No.7 along with some unknown persons were seating
adjoining gala to suit premises and they obstructed plaintiff in
opening the lock of suit premises and also assaulted plaintiff and
threatened him that henceforth plaintiff shall not use and occupy the
suit premises, otherwise plaintiff would have to face consequences
thereof. Plaintiff's son Hamzah Pitalwala has recorded video shooting
of said incident. When plaintiff went to lodge complaint against
defendant No.7 and his goons with Malad Police Station, the then
duty officer refused to take complaint of plaintiff stating that matter
is in civil nature. Thereafter plaintiff immediately met defendant
No.6 and she assured plaintiff that no such act would be committed
by defendant No.7 and believing such assurances, plaintiff has not
taken any action against defendant No.7.
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 5 of 26 --
..6..
10. On 18.09.2022 defendant No.6 with defendant No.7
visited suit premises and they threatened plaintiff that soon he should
vacate the suit premises otherwise plaintiff would have to face
consequences thereof. Defendant No.6 at the instance of defendant
No.7 told plaintiff that he has absolutely no right, title and interest in
the suit premises. Defendant Nos.6 and 7 told plaintiff that
defendant Nos.1 to 5 allegedly have already agreed to transfer the
rent receipt of suit premises in the name of third party. Defendant
No.7 unlawfully, illegally and highhandedly and with the help of
goons attempted to obstruct plaintiff in using and occupying suit
premises. Hence, plaintiff prayed for granting reliefs as prayed for.
11. Defendant Nos.1 to 5 have failed to file their reply, so the
application ordered to be proceeded without their reply vide order
dated 16.12.2022.
12. Defendant Nos.6 and 7 have filed reply vide Exhibit
No.20 and opposed the application. Defendants have denied each
and every allegations made in the application for seeking interim
reliefs. Present application is misconceived and not maintainable in
law. They have contended that plaintiff has not approached to this
Court with clean hands and suppressed various materials facts with a
view to snatch some order from the Court. Defendants have adopted
the contents of written statement as a part and parcel of their reply.
13. Defendant Nos.6 and 7 have filed their written statement
vide Exhibit No.17. They contended that defendant No.6 being the
proprietor of Swastik Engineering Corporation is a lawful monthly
tenant in respect of the suit premises. Defendant Nos.6 and 7 are in
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 6 of 26 --
..7..
absolute use, occupation and possession of the suit premises. The
plaintiff has not challenged the tenancy rights in respect of the suit
premises in favour of Swastik Engineering Corporation and has not
challenged the rent receipts issued from time to time by defendant
No.1 in favour of defendant No.6 therefore, the relief sought by the
plaintiff cannot be granted by this Court. Defendant No.1 is a public
trust. Plaintiff has not obtained the statutory permission as per the
provisions of the Bombay Public Trust Act and for want of statutory
permission present suit is not maintainable. It further contention of
defendant Nos.6 and 7 that defendant No.6 is 72 years and her
husband namely Haji Abdul Rahman Jalil Pitalwala expired in the
year 1995 leaving behind his six sons and daughters including the
plaintiff. The plaintiff being the son of defendant No.6 has now
understood that some developer is negotiating with defendant No.1
being the owner and landlord of the suit premises and defendant
No.6 being the proprietor of Swastik Engineering Corporation will be
allotted new premises on ownership basis in lie of suit premises. The
plaintiff has filed false and frivolous suit with malafide purpose to
extort the money from these defendants. These defendants denied
that the deceased Haji Abdul Rahman Jalil Pitalwala was tenant in
respect of the suit premises. 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. The suit premises is shed No.29 and the
same is referred as 29A or 29 extension and not 245. To snatch some
order from this Court, plaintiff has deliberately annexed the rent
receipts in respect of Shed No.25 which is not the subject matter of
the suit.
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 7 of 26 --
..8..
14. It is further contention of defendants that since the
inception of tenancy of suit premises, the tenancy was always in the
name of Swastik Engineering Corporation and these defendants was
always the proprietor of it. It is settled legal position that proprietary
firm is not a separate legal entity and the same is infact to be known
in the name of the proprietor. Defendant No.6 have acquired the suit
premises in the name of her proprietary firm namely Swastik
Engineering Corporation out of her own income and money and she
was always conducted the said business independently. The said
proprietary firm of defendant No.6 is always having the bank account
in Malad Sahakari Bank Limited and same is operated under the
signature of defendant No.6, which is admitted by plaintiff in
paragraph No.11 of the plaint. It is now defendant No.7 who is
assisting defendant No.6 in operation of the business from the suit
premises. Defendants denied that plaintiff is in use, occupation and
possession of the suit premises. It is the contention of defendants
that plaintiff since beginning was running his business in the name
and style of M/s. Indu Plastic Industries at Gala No.3, Swastik
Compound Ram Baug, Chincholi Bunder Road Malad (West),
Mumbai-400 064 and not from the suit premises. In all the
correspondence addressed by the plaintiff, he has specifically referred
his address of Gala No.3.
15. In the year 2013 plaintiff left the Flat No.B/2 Kherani
Mention Bold Star Society NP Lane, Andheri West, Mumbai and
shifted along-with his family to other premises as this defendant did
not agreed to the demands of the plaintiff. In the month of March
2014 defendant was looking for some document and then found out
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 8 of 26 --
..9..
that all the documents including the document of suit premises are
missing from the place, where it was kept by these defendants flat.
The defendant after the plaint is being served understand that said
documents were stolen by plaintiff himself and based on the said
stolen document of suit premises, plaintiff is alleging in the plaint
that the original documents are in his custody in respect of the suit
premises. On lodging the police complaint, DN Nagar Police Station
on 05.03.2014 have issued the Certificate of lost document, which
includes the documents of all the other property of defendant
including the suit premises.
16. These defendants is regularly making the payment of
electricity bill of the suit premises from the bank account of
defendant No.6 proprietary firm continuously at Malad Sahakari
Bank. These defendants is also having the requisite license issued by
Municipal Corporation of Greater Mumbai at the address of the suit
premises for the business of Swastik Engineering Corporation
wherein the name of this defendant is mentioned as an employer.
Defendants have paid the renewal fees of said license from time to
time. Since the year 2019 Municipal Corporation of Greater Mumbai
came with a policy that Shop and Establishment License is no
mandatory required for conducting the business and therefore after
2019 this defendant have not renewed the license. The proprietary
firm of these defendants Swastik Engineering Corporation is also
registered with the ministry of Micro, Small, Medium Enterprises and
accordingly defendant is having the Udyam registration number at
the address of the suit premises.
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 9 of 26 --
..10..
17. The defendants further contended that plaintiff regularly
along with his three sons, wife and other hirelings is attempting to
dispossess these defendants from the suit premises. On 05.10.2022
plaintiff had attempted to dispossess these defendants from the suit
premises and therefore, these defendants have lodged the Police
Complaint at Malad Police Station. On 18.10.2022 at 5.30 p.m.
plaintiff along with his hirelings have once again made an attempt to
dispossess these defendants from the suit premises and therefore
these defendants have immediately dialed urgent police number 100
and locked the suit premises from inside and therefore plaintiff was
unable to dispossess these defendants from the suit premises. Due to
the apprehension of being dispossess from the suit premises, these
defendants are forced to even sleep at night in the suit premises
though the suit premises does not have any WC in the suit premises.
These defendants have denied the averments made in the plaint in
to-to.
18. Defendants have denied that balance of convenience
heavily lies in favour of plaintiff and plaintiff would suffer heavy loss,
harm and damage in the event reliefs as prayed are not granted. They
have also denied that on the contrary no prejudice of whatsoever
nature would be caused to defendants, if reliefs as prayed for by
plaintiff are granted. They have contended that plaintiff has failed to
make out any prima facie case for grant of interim or ad-interim relief
as prayed for. Lastly, defendants prayed for rejection of application
with compensatory costs.
19. The plaintiff has filed affidavit-in-rejoinder vide Exhibit
No.25 and reiterated whatever stated in the application and denied
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 10 of 26 --
..11..
the contentions of defendant Nos.6 and 7 made in the written
statement. It is contended by plaintiff that defendant No.6 was not
major in the year 1970 to acquire the suit premises. The copy of
Membership Card of defendant No.6 namely Rabia issued by Kolsa
Mohalla Halai Memon Jamat shows that she was housewife and had
no source of income. The documents referred to and relied upon by
defendants in the written statement are absolutely misleading. The
plaintiff lastly prayed to allow the application.
20. Defendant Nos.6 and 7 have filed their sur-rejoinder vide
Exhibit No.28 and denied the averments made in the affidavit-in-
rejoinder and contended that the documents filed along-with
affidavit-in-rejoinder by the plaintiff are forged and fabricated
documents not having relevance with the facts and circumstances of
the present case. Defendants lastly prayed for rejection of the
application with compensatory costs.
21. Heard Advocate of plaintiff as well as Advocate of
defendant Nos.6 and 7.
22. Advocate of plaintiff has filed rejoinder on law points
vide Exhibit No.57. It is contended by Advocate of plaintiff that the
family member, who is using the premises at the time of death of
tenant will have right over the premises other than family members
or heirs of deceased tenant, who were not using the premises at the
time of death of deceased tenant. Plaintiff has prima facie shown on
record that his father late Haji Abdul Rahman Pitalwala had acquired
the tenancy right of the suit premises on 01.04.1961 and he was the
sole proprietor of Swastik Engineering Corporation. The deceased
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 11 of 26 --
..12..
original tenant was operating all business transactions during his
lifetime. Plaintiff was assisting to his father and was running and
conducting the business carried on from the suit premises. Since
inception plaintiff was running and conducting the business of
Swastik Engineering Corporation with the deceased original tenant.
After death of the original tenant, plaintiff continued and carried on
business from the suit premises and looked after and maintained
affairs and activities of the business of Swastik Engineering
Corporation from the suit premises. Defendant Nos.6 and 7 were
never conducting the business of Swastik Engineering Corporation.
So the plaintiff is tenant of the suit premises as per Section 7(15)(d)
of the Maharashtra Rent Control Act, 1999.
23. It is also contended by Advocate of plaintiff that Swastik
Engineering Corporation is the proprietary firm. Father of plaintiff
was the sole proprietor of the said firm and defendant Nos.6 and 7
claims that defendant No.6 is sole proprietor of said firm. The sole
proprietorship firm is not a juristic person and does not fall within
the definition of person as per Section 3(42) of General Clauses Act.
As per Order XXX Rule 10 of the Code of Civil Procedure, any suit by
or against the proprietorship firm is required to be filed by or against
person and not against proprietorship firm, otherwise such suit is not
maintainable. It is immaterial who is the proprietor of Swastik
Engineering Corporation. Assuming that defendant No.6 is only sole
proprietor of the said Swastik Engineering Corporation, in that
circumstances also, it does not mean that she is the tenant of suit
premises. Advocate of plaintiff is relied upon following citations:-
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 12 of 26 --
..13..
(1). Mr. Romeo Pascol Kinny & Ors. Vs. Smt. Savitri
w/d. Of Dr. Umashankar Dwivedi (2015(6) ALL MR
39).
(2). National Insurance Company Ltd. and Anr. Vs.
Arunachal Carrying Corporation and Anr. (2015(4) GLR
690).
24. Following points arise for my determination and I have
recorded my findings with reasons thereon as stated below:-
POINTS: FINDINGS:
1. Whether the plaintiff has prima No.
facie case?
2. Whether balance of convenience No.
lies in favour of plaintiff?
3. Whether the plaintiff will suffer No.
irreparable loss if the injunction
is not granted?
4. What order? Application is rejected.
: R E A S O N S :
AS TO POINT NOS.1 TO 4:
25. As the point Nos.1 to 3 are interlinked to each other,
they are taken up together for discussion to avoid repetition.
26. On perusal of record, it appears that suit is filed by
plaintiff for declaration of tenancy of suit premises in his favour and
also for granting perpetual injunction restraining defendants from
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 13 of 26 --
..14..
obstructing his peaceful possession of suit premises and also claiming
injunction more particularly mentioned in the plaint.
27. Temporary injunction may be granted as per Order
XXXIX Rule 1 of the Code of Civil Procedure, 1908 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 be 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.
28. In short, when the defendants threatens to dispossess the
plaintiff or otherwise cause injury to plaintiff in relation to any
property in dispute in suit, the Court may grant a temporary
injunction to restrain such an act or may order for the purpose of
preventing the dispossession of the plaintiff or for the purpose of
preventing the causing of injury to the plaintiff in relation to any
property in the suit. At the stage of deciding the application for
temporary injunction, the Court is not required to go into the merits
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 14 of 26 --
..15..
of the case in detail. The primary purpose of granting interim relief is
the preservation of property or right and interest in dispute till legal
rights and conflicting claims of the parties before the Court are
adjudicated.
29. I have gone through the citation of Mr. Romeo (supra).
In the said citation, it is held by the Hon’ble Bombay High Court that
definition of the expression ‘tenant’ under section 7(15)(d) of the
Rent Act, can be conveniently divided into two parts in the matter of
determining the status of tenancy, when the original tenant expires.
The first part provides that the term 'tenant', in relation to any
premises, when the tenant dies, would include any member of the
tenant's family, where the tenanted premises were let out for
commercial purposes, was using the premises for such purpose with
the original tenant at the time of his death. Second part of this
definition, which is separated from the first part with the preposition
'or' as well as the expression 'in the absence of such member' provides
that the term 'tenant' will also include any heir of the deceased
tenant, as may be decided, in the absence of agreement, by the Court.
The definition, therefore, includes at least two categories of persons.
The first category includes member of the deceased tenant's family,
who was carrying on business in the tenanted premises at the time of
the original tenant's death. In the absence of any member from the
first category, the second category would include any heir of the
deceased tenant, as may be decided, in the absence of agreement, by
the Court.
30. Now, on this background it is required to be looked into
that whether plaintiff has sufficiently shown that he is having prima
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 15 of 26 --
..16..
facie case and balance of convenience for granting temporary
injunction.
31. It is admitted fact that defendant No.1 is a Trust and
owner of suit premises. Defendant No.6 is mother and defendant
No.7 is brother of plaintiff. Haji Abdul Rahman Jalil Pitalwala was
father of the plaintiff and he died on 09.02.1995.
32. It is the contention of plaintiff that original tenant was
sole proprietor of Swastik Engineering Corporation. The landlord
used to issue rent receipt either in the personal name of deceased
tenant or in the name of proprietary concern as Swastik Engineering.
It is also contention of plaintiff that defendant No.6 got married with
original tenant on 11.06.1967 and in the Wedding Card name of all
the business establishment of the said deceased tenant was
mentioned. There is also reference of Swastik Engineering
Corporation. Defendant No.6 never carried out any business from
the suit premises as he was housewife and was fully dependent on
the deceased tenant and after death of original tenant, she was/is
dependent upon plaintiff. Plaintiff has filed on record copy of
Wedding Card. It appears from the said copy that the marriage of
defendant No.6 was took place with Haji Abdul Rahman Jalil
Pitalwala on 11.06.1967 and in the said Wedding Card, the name of
Swastik Engineering Corporation also appears to be mentioned.
Plaintiff has filed on record copy of Invoice dated 10.08.1999 along-
with rejoinder. On the said Invoice ESTD.1960 appears to be
mentioned. Plaintiff has also filed copy of Udyam Registration
Certificate along-with rejoinder at Exhibit-4. It appears from the said
Certificate that the date of incorporation/registration of Enterprise is
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 16 of 26 --
..17..
mentioned as 11.04.1960 as well as date of commencement of
production/business mentioned as 11.04.1960. The name of unit is
mentioned as Swastik Engineering Corporation. The copy of
Certificate issued by Ministry of Micro, Small and Medium
Enterprises. On perusal of said copy, it appears that the date of
incorporation of Swastik Engineering Corporation is mentioned as
11.04.1960 and date of commencement of production and business is
mentioned as 11.04.1960. So it appears from the documentary
evidence filed on record by plaintiff that Swastik Engineering
Corporation is registered on 11.04.1960. But, it is pertinent to note
here that on the said copy of Udyam Registration Certificate the name
of owner is mentioned as Smt. Mumtaz Abdul Rahman Pitalwala.
33. It is contended by the plaintiff that original deceased
tenant out of natural love and affection shown defendant No.6 as
proprietor of said Swastik Engineering Corporation, without creating
any right in the suit premises and so also without creating any right
in the business of said Swastik Engineering Corporation. It means
during the lifetime of father of plaintiff, he has shown defendant
No.6 as proprietor of Swastik Engineering Corporation. Admittedly,
father of plaintiff appears to be died on 09.02.1995. So the name of
defendant No.6 appears to be prima facie shown as proprietor of
Swastik Engineering Corporation since before 1995. It is pertinent to
note here that plaintiff has also not appears to be raised any objection
during the lifetime of his father or till filing of the suit for showing
defendant No.6 as proprietor of Swastik Engineering Corporation.
34. It is contention of plaintiff that during lifetime of
deceased original tenant and even after his death, plaintiff has been
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 17 of 26 --
..18..
paying rent of the suit premises and as such the plaintiff is in lawful
custody of rent receipts. Defendant Nos.6 and 7 have denied that the
rent receipts issued in the name of father of plaintiff are in respect of
suit premises. It is their contention that those rent receipts are in
respect of Shed No.245 and not in respect of suit premises. On
perusal of copies of rent receipts filed at Exhibit-C colly, it appears
that two rent receipts dated 02.07.1976 were issued in the name of
A. R. Pitalwala, but those receipts are appears to be in respect of
Shed No.245. Plaintiff has filed on record copies of rent receipts at
Exhibit-D colly. On perusal of copies of those rent receipts, it appears
that receipts were issued in the name of Swastik Engineering
Corporation for Shed No.29-A or Shed No.29 or Shed No.29-EXT on
25.08.1971, 20.08.1973, 01.02.1984 and 09.09.1987. As per
contention of defendant Nos.6 and 7, defendant No.6 was lodged
complaint with D.N.Nagar Police Station for lost of documents and in
that respect Certificate is issued by the concerned Police Station on
05.03.2014. At that time the documents of all other properties
including the suit premises was lost. After filing of the suit by
plaintiff, defendants realized that the documents was stolen by
plaintiff. Defendant Nos.6 and 7 have filed on record copy of
Certificate at Exhibit-H. On perusal of the said copy of Certificate, it
appears that defendant No.6 was informed to the police about lost of
her documents. In the list of documents reference of lost of
documents in respect of suit premises also appears to be mentioned.
In such circumstances, only on the basis of original rent receipts are
in the custody of plaintiff, it cannot be said that plaintiff is in
possession of suit premises.
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 18 of 26 --
..19..
35. It is contended by plaintiff that though establishment of
Swastik Engineering Corporation and Current Account of the Malad
Sahakari Bank Ltd. is shown and recorded in the name of defendant
No.6, but she never carried out the said business of Swastik
Engineering Corporation. It is also contended by plaintiff that
defendant No.6 was never operated the said Bank Account and
plaintiff was operating the said Bank Account for the purpose of
running the business of Swastik Engineering Corporation. Defendant
No.6 was merely signatory whereby plaintiff only used to take
signature of defendant No.6 for deposit and issuance of cheques only.
It appears from the said pleadings of plaintiff that the Bank Account
of Swastik Engineering Corporation with Malad Sahakari Bank Ltd. is
in the name of defendant No.6 and all Bank transactions was took
placed with the signature of defendant No.6. When the money
transaction of Swastik Engineering Corporation was took placed with
the signature of defendant No.6, then it cannot be said that plaintiff
was or is in use, occupation and possession of suit premises for the
purpose of business of Swastik Engineering Corporation.
36. On perusal of copies of receipts dated 13.03.2009,
13.04.2009, 11.05.2009 and 16.07.2010, it appear that an amount in
respect of compensation or BMC tax paid to defendant No.1 in
respect of suit premises. But, it is pertinent to note here that the said
receipts are in the name of Swastik Engineering Corporation and the
alleged amount appears to be paid by way of cheque drawn on Malad
Sahakari Bank Ltd. Admittedly, the Bank Account of Swastik
Engineering Corporation with Malad Sahakari Bank Ltd. appears to
be shown in the name of defendant No.6. So, as per the alleged
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 19 of 26 --
..20..
receipts, it cannot be said that plaintiff has paid the
compensation/BMC tax to defendant No.1 in respect of suit premises.
37. It is the contention of plaintiff that his Mobile number
was registered with the Malad Sahakari Bank Ltd. Subsequently, in
the year 2017-18, defendant Nos.6 and 7 behind back of plaintiff
changed the record and thereby got their mobile number registered
under the said Bank Account. Plaintiff came to know about the same
recently in September 2022. It is also contention of plaintiff that the
business of Swastik Engineering Corporation was completely closed
since the year 2004 to December 2020 and suit premises had been
rented out on Leave and Licence basis with the consent and
knowledge of defendant No.1. The licensee vacated the suit premises
in December, 2020. It is pertinent to note here that plaintiff has
contended that on the request of defendant No.6 he allowed to
defendant No.6 to collect and recover monthly license fee from the
licensee of the suit premises. It appears from the said contention that
defendant No.6 was collecting the license fee from the licensee for
the period 2004 to December 2020. In my opinion, when defendant
No.6 has collected the license fee from the licensee for the period
from 2004 to December 2020, then prima facie it shows that
defendant No.6 was and is in possession of suit premises.
38. It is contended by plaintiff that he has paid electricity bill
and also filed on record some copies of electricity bills. Defendant
Nos.6 and 7 have also filed record copies of electricity bills. All
electricity bills are appears to be in the name of Swastik Engineering
Corporation. In such circumstances, on the basis of alleged electricity
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 20 of 26 --
..21..
bills are in possession of plaintiff, it cannot be said that plaintiff is in
possession of the suit premises.
39. Plaintiff has filed on record copy of summons of Hon’ble
Commissioner for workmen’s compensation below Exhibit-G and
copies of the proceedings below Exhibit-H to show that he was
received summons as owner of Swastik Engineering Corporation. On
perusal of said copy, it appears that one Govind Naidu was filed
application before the Labour Court at Mumbai for compensation and
in the said proceeding Swastik Engineering Corporation was
opponent No.1 and Mr. Hajibhai was shown as opponent No.2 and in
front of the name of Hajibhai word “owner” is mentioned. But, in my
opinion mentioning as owner to plaintiff by one of the employee, it
cannot be said that plaintiff was owner of Swastik Engineering
Corporation. More particularly when from the pleadings of plaintiff
itself appears that since the lifetime of father of plaintiff, defendant
No.6 is shown as proprietor of Swastik Engineering Corporation, it
cannot be said that plaintiff was in use, occupation and possession of
suit premises as owner of Swastik Engineering Corporation.
40. It is contended by defendant Nos.6 and 7 that the officer
of the Municipal Corporation of Greater Mumbai have found certain
non-compliance of the provisions of Maharashtra Shop and
Establishment Act 1948 by defendant No.6 and therefore they lodged
complaint before the Presidency Magistrate Miscellaneous Court and
registered a case No.390/380/SS/2019 against defendant No.6.
After service of summons, defendant No.6 appeared before the
Magistrate and paid fine of Rs.3000/-. Defendant Nos.6 and 7 have
filed on record copy of summons issued to defendant No.6 at Exhibit-
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 21 of 26 --
..22..
P and copy of receipt of deposited amount of fine of Rs.3000/- at
Exhibit-Q. The said summons appears to be issued for appearance on
16.03.2019 and defendant No.6 has appears to be paid fine amount
on 16.03.2019. So, it appears prima facie from those documents that
defendant No.6 was and is in use, occupation and possession of the
suit premises for the purpose of running business of Swastik
Engineering Corporation. More particularly at the time of filing
present suit, defendant No.6 prima facie appears to be in possession
and occupation of the suit premises as proprietor of Swastik
Engineering Corporation.
41. As per contention of defendant Nos.6 and 7, plaintiff was
never in use, occupation and possession of suit premises. The suit
premises is in possession of defendant No.6. Plaintiff since beginning
running his business in the name and style of M/s. Indu Plastic
Industries at Gala No.3, Swastik Compound, Ram Baug, Chincholi
Bunder Road, Malad (West), Mumbai-400 064. It is contended by
plaintiff in rejoinder Exhibit No.25 that the said Gala No.3 (M/s. Indu
Plastic) has no concerned with the subject matter of present suit and
he reserved his rights of its true interpretation. Plaintiff has not
specifically denied that he is not doing the business in Gala No.3 in
the name and style of M/s. Indu Plastic Industries. Plaintiff has not
contended in the plaint in respect of his alleged business of M/s. Indu
Plastic Industries. Defendant Nos.6 and 7 have filed on record one
copy of FIR No.619 of 2016 at Exhibit-A. It appears from the said
copy that report was lodged by present plaintiff against Manilal Shah
and other persons. In the said report, it is contended by plaintiff that
he is running business in the name of Indu Plastic Industries, in front
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 22 of 26 --
..23..
of Swastik Compound Dalmill, Ram Baug, Chincholi Bunder Road,
Malad West, Mumbai since 2000. Plaintiff has also filed on record
copies of electricity bills. In the said electricity bills, two bills are in
then name of M/s. Indu Plastic Industries, one electricity bill is dated
21.07.2009 and another electricity bill is dated 12.10.2011. In the
said bill also name of firm is mentioned as M/s. Indu Plastic
Industries and address is mentioned as Swastik IndustriesCom, Ram
Baug, G. B. Road, Malad West, Mumbai-400 064. So prima facie it
appears from the documents on record that plaintiff is doing business
in the name of M/s. Indu Plastic Industries at difference place than
the suit premises since 2000.
42. It is vehemently argued by Advocate of plaintiff that the
father of plaintiff was the original tenant of suit premises since 1961.
Defendant No.1 never treated and accepted defendant No.6 as
monthly tenant of the suit premises. There is no correspondence
between defendant No.1 and defendant No.6 treating defendant No.6
as monthly tenant of suit premises. No documents was executed for
transferring and assigning the tenancy right of the suit premises in
favour of defendant No.6. Defendant No.6 failed to show that she is
acquiring independent right of tenancy in respect of suit premises. It
is pertinent to note here that business of alleged Swastik Engineering
Corporation appears to be running from the suit premises. The name
of defendant No.6 is shown as proprietor of said firm during the
lifetime of father of plaintiff. Bank Account of the firm Swastik
Engineering Corporation is also in the name of defendant No.6. It
prima facie appears from the documents filed on record that rent and
BMC taxes paid to defendant No.1 from Bank Account, which is
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 23 of 26 --
..24..
operated by defendant No.6. Defendant No.1 has appears to be
accepted the rent and BMC taxes from defendant No.6. In such
circumstances, at this stage it cannot be said that defendant No.6 is
not tenant of suit premises as proprietor of Swastik Engineering
Corporation. It is pertinent to note here that defendant No.6 is also
one of the legal heir of original deceased tenant.
43. As per the ratio laid down by the Hon’ble Bombay High
Court in the case of Mr. Romeo (supra), from the plain reading of
Section 7(15)(d) of the Maharashtra Rent Control Act, 1999 it is
clear that the legislature has merely granted a priority in the matter
of claim of tenancy right to any member of the tenant’s family, who,
where the suit premises are let for commercial purposes, is using such
premises for any such purpose if the tenant at the time of his death.
Further, the provisions in Section 7(15)(d) of the Rent Act proceed to
lay down that in the absence of any member, any heir of the deceased
tenant, as may be decided, in the absence of agreement by the Court,
will qualify to be the tenant in respect of the suit premises. In the
present suit in hand, defendant No.6 appears to be shown as
proprietor of the Swastik Engineering Corporation during the lifetime
of father of plaintiff. In such circumstances, at this stage it cannot be
said that plaintiff is exclusive tenant of suit premises and defendant
No.6 is not covered under the definition of tenant.
44. In the citation in case of National Insurance Company
Ltd. (supra), it is held by the Hon’ble Bombay High Court that a
Single person who is the sole proprietor of a firm cannot sue in the
name of a firm in which he carries on a business. In case of
proprietorial firm even his business is run in the name of a firm, the
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 24 of 26 --
..25..
suit is required to be filed by the proprietor in his own name and
cannot sue in the name of the firm. The said citation is in respect of
how to file suit by or against partnership firm and proprietorship
firm. So in my opinion said citation is not helpful for plaintiff.
45. In one hand plaintiff is contending that he was running
and conducting business of Swastik Engineering Corporation from
the suit premises along with his father and after his death, plaintiff
continued the said business and he acquired exclusive tenancy right
in the suit premises. On the other hand, it is also contending that
Swastik Engineering Corporation has no concerned with tenancy
right of the suit premises.
46. It is contended by plaintiff that defendant Nos.6 and 7
are obstructing in his use, occupation and possession of the suit
premises. On the other hand, it is specifically denied by defendant
Nos.6 and 7 that plaintiff is in use, occupation and possession of the
suit premises. They have contended that plaintiff and his family
member are attempting to dispossess defendants from the suit
premises.
47. Considering the facts and circumstances on record, it
appears to me that prima facie plaintiff is not in use, occupation and
possession of the suit premises. There is no prima facie case and
balance of convenience lies in favour of the plaintiff. In my opinion,
when prima facie plaintiff not appears to be in possession of the suit
premises then causing obstruction at the hands of defendants to his
possession of the suit premises does not arise. In my opinion,
plaintiff will not suffer irreparable loss in the event of rejection of the
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 25 of 26 --
..26..
application. Plaintiff is not entitled for temporary injunction as
prayed. Application filed by plaintiff is liable to be rejected.
Accordingly, I answer point Nos.1 to 3 in the negative and in answer
to point No.4, I pass the following order:-
: ORDER :
1. Application is rejected.
2. No order as to costs.
Sd/-.
(A. J. Fatale)
Date : 30.11.2023 Judge, C.R.No.34(BB).
Order Dictated & Typed on : 30.11.2023
Order Checked & Signed on : 05.12.2023
/home/steno34/CR-34 AJF/2023/November/Exh-9 in RAD S.No.429-22 Injunction.odt
-- 26 of 26 --