Interim Order 3

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
ORDER BELOW EXHIBIT- 18
IN
L. E. SUIT NO. 149 OF 2021
(CNR-MHSCA-30013012021)
1. Smt. Ranjana Rajaram Tambe & Ors. ...Plaintiffs.
Versus
1. Smt. Jankabai Ramchandra Kakad & Ors. ...Defendants.
Mr. Anthony D’Silva, ...Ld. Advocate for plaintiffs.
Mr. Amol Ratnaparkhe, ...Ld. Advocate for defendants.
Coram : R. R. Kale,
Judge, C. R. No. 35,
Date : 14th February, 2024.
ORAL ORDER :-
Present suit is filed by the plaintiffs against the defendants
for eviction under Section 41 of Presidency Small Causes Courts Act,
1882.
2. The present application is filed by the plaintiffs against the
defendants or either of them, their respective servants, agents,
representatives and relatives to restrain them by an order of injunction
of this Court from inducting any third party or transferring their interest
in the premises viz., Room No. 5/10 Amrut Nagar (Bara Bangla),
Kherwadi Road, Bandra (East), Mumbai- 400 051 (hereinafter referred
for the sake of brevity to as ‘suit premises’)or any part thereof in any
manner whatsoever.
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3. The plaintiffs in brief in their application submit that, in the
present suit after the suit summons was served upon the defendants,
they have filed their written statement on 11.02.2022. Thereafter, the
Court framed issues on 21.06.2022. Before filing of an examination in
chief of the witness of the plaintiffs, the plaintiffs had through several
notices requested the defendants to provide inspection of the
documents but copies of documents not provided to them, as referred to
and relied upon by them in their written statement. After the evidence
filed by the plaintiffs, it is learnt that the defendant No. 1 has
unauthorizedly and without any right or title, gifted the suit premises to
defendant Nos. 3 and 4 who are her grand children, on 22.07.2022 by
virtue of registered Gift Deed bearing registration No. 12977 of 2020.
One of the issue is framed with regard to the ownership in respect of
the suit premises whose burden is on the defendant No. 1. The
defendant No. 1 knowing fully well of the said issue tried to transfer
ownership of the suit premises hurriedly on 22.07.2022. In the alleged
Gift Deed executed by defendant No. 1 in favour of defendant Nos. 3
and 4 specifically mentioned that, she is the owner of the suit premises
and there is no litigation pending as against the suit property.
4. The plaintiffs further in their application submit that, the
alleged Gift Deed was executed with the knowledge and connivance
both the defendants and with the knowledge that the plaintiffs had
specifically asked for relief of permanent injunction against the
defendants. The defendant Nos. 3 and 4 are in desperate search of
buyers for the suit premises and will sell off the same and render the
present suit infractuous. If the defendants become successful in
transferring the ownership of the suit premises to third party, then
plaintiffs will face irreparable loss which cannot be compensated in
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terms of money. The alleged Gift Deed has been executed by the
defendant No. 1 in favour of the defendant Nos. 3 and 4 only to defeat
the very purpose of the suit and there is now nothing preventing them
from selling the same to some other third party. The balance of
convenience lies in favour of the plaintiffs. Hence, interim injunction
relief be granted in favour of the plaintiffs. Contending all these
grounds, the plaintiffs have prayed that, their application be allowed.
5. The defendant No. 1 has appeared through her counsel
and strongly opposed the present application by filing reply at Exh.23.
The defendant No. 4 has filed his reply at Exh. 27 and has strongly
opposed the present application. The defendant Nos. 1 and 4 submit in
brief in their reply that, the suit is false, frivolous, vexatious and is filed
without any cause of action. Suit is barred by law of limitation. There is
no relationship between the plaintiffs and the defendant No. 1 as
licensors and gratuitous licensee. The suit premises has been purchased
by the deceased husband of the defendant No. 1 from the plaintiffs on
24.12.1971 and thus, he became owner thereof. After the demise of the
husband, the defendant No. 1 became the sole and absolute owner of
the suit premises.
6. The defendant Nos. 1 and 4 further submit in their reply
(Exh. 23 & 27) that, present application has been taken out to harass
these defendants. The Gift Deed has been executed prior to the filing of
the suit i.e. on 22.07.2022 and suit has been filed on 17.12.2021. The
plaintiffs have miserably failed to establish any right in respect of the
suit premises. Thus, application be rejected. Contending all these
grounds, the defendant Nos. 1 and 4 have prayed for rejection of the
application.
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7. The defendant No. 3 despite his appearance has failed to
file his reply and therefore, present application has been proceeded
without his reply.
8. 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 : -
Sr. nos. Points Findings
1. Whether the plaintiffs have prima facie
case in their favour?
...Partly Yes.
2. Whether the balance of convenience lies in
the favour of the plaintiffs ?
...Partly Yes.
3. Whether an irreparable loss will cause to
the plaintiffs if application is not allowed?
...Partly Yes.
4. What order ? ...Application
stands partly
allowed.
: R E A S O N S :
As To Point Nos. 1 to 3 :-
9. 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. Anthony D’Silva on behalf of the plaintiffs and
Ld. Advocate Mr. Amol Ratnaparkhe on behalf of defendant Nos. 1 and
4.
10. The Ld. Advocate on behalf of plaintiffs vehemently argued
in consonance with the present application whereas the Ld. Advocate on
behalf of defendant Nos. 1 and 4 vehemently argued that, the plaintiffs
do not have prima facie case, balance of convenience also does not lie in
their favour and hence, application be rejected.
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11. 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, 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.
12. The court while exercising discretion in granting or
refusing injunction should exercise sound discretion and should 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.
13. I have considered all the submissions made by the parties. I
have gone through the plaint. According to the plaintiffs, the plaintiffs
are the heirs of late Mr. Bhikaji Laxman Tambe who is the owner of
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structure and Flat No. 5/10 Amrut Nagar, Kherwadi, Bandra (East),
Mumbai- 400 051 ; the said flat is in a Society i.e. defendant No. 2 ; Mr.
Bhikaji Tambe had constructed the suit premises which came to be part
of defendant No. 2 ; the defendant No. 1 is a gratuitous licensee
without any protection under the provisions of the Maharashtra Rent
Control Act, 1999 ; due to the kind hatred nature of Bhikaji Tambe, he
had allowed Mr. Ramchandra Kakad i.e. husband of defendant No. 1 to
occupy the suit premises free of cost and without any agreement
together with his family on the bare assurances of Mr. Ramchandra
Kakad that he shall vacate the suit premises as and when demanded by
Mr. Bhikaji Tambe. According to further case of plaintiffs, the defendant
No. 1 is went upon continuing to reside in the suit premises alongwith
the members of her family inspite of being called upon to leave the
same with the active connivance of the defendant No. 2.
14. The plaintiffs further averred that neither the defendant
No. 1 nor her family members are entitled to continue to reside in the
suit premises or any part thereof. The defendant No. 1 is not willing to
vacate the suit premises as the main intention of the defendant No. 1 is
to usurp the suit premises. The plaintiffs further averred that they are
financially very weak and at present staying on rent since 2013 and
have no premises of their own. Their house in Ambewadi Khar was
demolished in 2013 under Maharashtra Slum Areas (Improvement,
Clearance And Redevelopment) Act, 1971 scheme, but till date no even
the construction of the building has started and therefore, the plaintiffs
are staying temporarily on rent in the address mentioned in the cause
title which is not a permanent address and are hence, suffering great
hardship. According to further case of plaintiffs, during the pendency of
the suit the defendant No. 1 has unauthorizedly without any right or
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title gifted the suit premises to defendant Nos. 3 and 4 in order to
defeat the rights of the plaintiffs.
15. The defendant Nos. 1 to 4 have filed their common written
statement at Exh. 9. According to the defence of the defendants, the suit
premises has been purchased by the husband of defendant No. 1 by
virtue of Agreement dated 24.12.1971 from the Bhikaji Laxman Tambe,
predecessor in title of the plaintiffs and thus he became owner of it and
after his demise the said defendant is the owner of the said premises.
They further contended that,present suit is not maintainable as there is
no relationship between the plaintiffs and defendant No. 1 as licensors
and licensee in respect of the suit premises. Their further defence is
that, suit is barred by law of limitation and the mandatory notice under
Section 164 of Maharashtra Co-Op. Housing Society 1960 was not given
to the defendant No. 2 before filing the present suit. Thus, the
defendants have submitted that, the suit deserves to be dismissed with
compensatory costs on above all grounds.
16. I have gone through the documents filed by both the
parties in support of their pleadings. After perusing the entire
application, it seems that the main grievance from the plaintiffs is that
the defendant No. 1 has allegedly executed Gift Deed in favour of
defendant Nos. 3 and 4 during the pendency of the suit i.e. on
22.07.2022 by virtue of registered Gift Deed bearing registration No.
12977 of 2022 and it is their apprehension that the defendants will
transfer the ownership of the suit premises to some third party. The
defendant Nos. 1 and 4 have not prima facie denied the execution of
gift Deed made in favour of defendant Nos. 3 and 4.
17. The plaintiffs have come up with the case that, the
defendant No. 1 is their gratuitous licensee in respect of the suit
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premises. To this contention, the main defence of the said defendant is
that, she is absolute owner of the suit premises as it was purchased by
her husband from the predecessor in title of the plaintiffs. My Ld.
Predecessor has pleased to frame the issues on the basis of pleadings of
parties and documents below Exh. 13. I have gone through the copy of
Gift Deed dated 22.07.2022. Prima facie there appears the name of
defendant No. 1 as ‘The Donor’ and the names of defendant Nos. 3 and
4 appear to be ‘The Donees’. The suit appears to be filed on 17.12.2021.
18. Admittedly, the plaintiffs have filed their evidence at Exh.
14 and produced the documents along with list vide Exh. 15. The
matter was pending for filing of the say by the defendants to the list
vide Exh. 15. However, the present application thereafter seems to have
moved by the plaintiffs.
19. On perusal of the copy of the notice dated 10.02.2016, it
prima facie transpires that, the plaintiff No. 2 had given notice to the
defendant No. 1 in respect of the suit premises and it was the
contention of the plaintiffs in the notice that, she is gratuitous licensee
of them. The copy of notice dated 20.10.2021 prima facie goes to show
that, the plaintiffs had issued notice to the defendant No. 1 to vacate
the suit premises and to give vacant and peaceful possession of the suit
premises to them. Similarly on 03.03.2015 prima facie it seems that, the
plaintiffs had issued notice to defendant No. 1 in respect of the suit
premises. The plaintiffs have produced on record the copies of bill
issued by Backward Sarvodaya Co-Op. Housing Society Ltd. in the year
1978 in respect of Room No. 10. It prima facie seems after perusal of
other documents produced by the plaintiffs that, the plaintiff No. 2 had
made correspondence to Backward Sarvodaya Co-Op. Housing Society
Ltd., to obtain documents in respect of House No. 5/10 standing in the
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name of Bhikaji Laxman Tambe. Accordingly, the said Society had give
reply to the plaintiffs.
20. The defendant Nos. 1, 3 and 4 have produced on record
copy of Agreement dated 09.11.1970 which prima facie seems to be
unregistered and written on insufficient stamp papers. They have also
placed reliance on the documents produced along with list vide Exh. 21
in order to show that, the defendant No. 1 is the owner of the suit
premises. However, this Court does not have jurisdiction to go through
the title of the suit premises.
21. After perusal of pleadings of the parties and documents
produced on record, prima facie it is not in dispute that, the suit
premises was belonging to predecessor in title of the plaintiffs. It is also
prima facie not in dispute that, the husband of defendant No. 1 was put
in possession of the suit premises by predecessor in title of the plaintiffs.
However, according to the case of plaintiffs, the husband of defendant
was put in possession, occupation and use of the suit premises as a
gratuitous licensee whereas according to the defence of the defendant
Nos. 1, 3 and 4, the husband of defendant No. 1 had purchased the suit
premises from predecessor in title of the plaintiffs. The burden is on the
plaintiffs to show that, there exists relationship between themselves and
defendant No. 1 as a licensors and licensee. The Court is not required to
look into the ownership of the any party. It is prima facie not in dispute
that, the defendant No. 1 has executed alleged Gift Deed on
22.07.2022. It seems prima facie that during pendency of the suit the
alleged Deed was got executed in favour of the defendant Nos. 3 and 4.
On perusal of copy of alleged Deed of Gift, prima facie in para No. 3 it is
noted that, the suit premises is free from dispute/ litigation. Thus,
prima facie it can be seen that despite aware of pendency of the present
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suit, the defendant Nos. 1, 3 and 4 have mentioned that there is no
litigation/ dispute pending in respect of the suit premises.
22. Thus, prima facie it is seen that defendant No. 1 has
allegedly created third party interest in favour of the defendant Nos. 3
and 4 knowing fully aware of the present case. The defendant Nos. 1, 3
and 4 have only denied the averments of the application. The plaintiffs
have averred on the affidavit that, defendant Nos. 1, 3 and 4 are in
desperate search of buyers of the suit premises and they will sale out
the premises to third party which will render the present suit
infractuous. The plaintiffs have reason to say that the defendant Nos. 1,
3 and 4 will create third party interest in respect of the suit premises as
they have allegedly executed the Gift Deed during the pendency of the
suit. Therefore, the apprehension of the plaintiffs prima facie found to
be reasonable. Therefore, in this regard I do found that, the plaintiffs
have prima facie case. If the defendant Nos. 1, 3 and 4 are not
restrained by way of an interim injunction order, it will result in
multiplicity of litigations and it will defeat the rights of the plaintiffs. So
also, the rights in respect of the suit premises and interest of the parties
need to be protected. Therefore, the balance of convenience lies with
the plaintiffs. Hence, in view of above all discussions if interim
injunction is not granted in favour of the plaintiffs then grave prejudice
would be caused to them. The plaintiffs have asked for relief of interim
injunction against all the defendants. However, considering the
pleadings of the parties and documents produced on record, an interim
injunction cannot be granted against the defendant No. 2 who is
admittedly the Society. Therefore, except defendant No. 2, application
can be partly allowed against other defendants. If the application is
partly allowed there are no chances of causing prejudice to the
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defendant Nos. 1, 3 and 4. Hence, I answer Point Nos. 1 to 3 in partly
affirmative.
As to Point No. 4:
23. Considering the findings and reasoning given on Point Nos.
1 to 3, present application needs to be partly allowed. Therefore, in
answer to Point No. 4, I proceed to pass the following order :-
: O R D E R :
1. Application vide Exh. 18 stands partly allowed.
2. The defendant Nos. 1, 3 and 4 are hereby restrained by
temporary injunction order from inducting any third party
or transferring their interest in the suit premises or any
part thereof, in any manner whatsoever till final disposal
of the suit.
3. Costs in cause.
(Dictated and pronounced in Open Court.)
Sd/-
Bandra -Mumbai. ( R. R. Kale )
Date : 14.02.2024. Judge, C. R. No.35.
Order dictated on : 14.02.2024
Order checked and signed on : 14.02.2024.
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