Appeal against an order granting injunction to prevent appellants (landlords) from dispossessing respondents (plaintiffs) of suit premises. Court held that prima facie possession existence is a matter for trial evidence and set aside order dismissed.
Appeal dismissed; Civil Application also stands dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Sherla V.
ao.261.2014_3.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.261 OF 2014 with CIVIL APPLICATION NO.305 OF 2014
Kiritkumar G. Shah & Ors. ... Appellants
Vs.
Zubin Harbin Jhaveri & Ors. … Respondents
Mr.Rajesh Singh for the Appellants Ms.Madhuri More for Respondent Nos.3 to 5 Mr.S.P. Thorat for Resp. Nos.6 & 7
CORAM: Mrs.MRIDULA BHATKAR, J. DATED: FEBRUARY 12, 2018
P.C. :
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ao.261.2014_3.doc
No.922 of 2012 for injunction and declaration in respect of the suit premises i.e., room No.6, 2nd floor. The trial Court at the time of deciding the Notice of Motion No.1781 of 2012 had appointed a Court Commissioner for local inspection of building No.64/66 at Mirza Street, Mumbai and directed the Commissioner to take inspection and prepare sketch of all the floors of the building and to submit the report. It injuncted respondent Nos.5 to 7 i.e., the present appellants, not to dispossess the plaintiff from the suit premises and not to disturb the possession of the plaintiffs over the suit premises i.e., room No.6. They are also restrained from creating third party interest in respect of suit premises i.e., room No.6 till the disposal of the suit.
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ao.261.2014_3.doc
plaintiffs have filed RAD Suit No.409 of 2011 which is pending in the Small Causes Court that they be declared as tenants and also in respect of possession of the said suit premises. He relied on the consent terms dated 16.10.2010 filed in RAD Suit No.26 of 2010 which was filed by one Harbin Jhaveri, the father of the present Respondent No.1 i.e., the husband of respondent No.2 alongwith defendant Nos.1 to 3 i.e., appellant Nos.1 to 3. He showed that in the consent terms, the father of the plaintiffs had agreed to accept Rs.5 lakhs in lieu of the premises and the said amount was paid to the father of the plaintiffs and it was accepted by him and surrendered the tenanted premises. He submitted that the plaintiffs have misguided the Court and they are not in possession of the suit room No.6. They have left the premises and, therefore, in their prayers in the suit No.409 of 2011, they have asked for possession.
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no.6 on 2nd floor. In view of this, the consent terms which are pointed out are not of use in respect of the present suit premises. In prayer clause 26(b) of the Suit No.409 of 2011, the plaintiffs have asked that they are to be given possession and also to be declared as tenant. However, this cannot be read at this stage as pertaining to room No.6 on second floor because the entire
Page 4 of 5
ao.261.2014_3.doc
building was repaired and it appears that the landlord was interested in creating rights of other parties by putting them in possession or selling the premises. However, in the present suit i.e., 922 of 2012, prayers made in Notice of Motion No.1781 of 2012 are to be taken into consideration. In the said suit, the plaintiffs have asked for declaration and action in respect of report given by MHADA and also prayed for declaration in respect of tripartite agreement dated 18.1.2018. The plaintiffs have also asked for injunction that defendants should not disturb the possession of the plaintiffs in respect of suit room and asked for creation of third party right. The prayers mentioned in the present suit prima facie disclose that respondent Nos.1 and 2 have maintained the stand that they are in possession of the suit room No.6. However, the fact that they are in actual possession is a matter of evidence and can be tested at the time of the trial. I do not find any reason to set aside the order passed by the trial Court.
(MRIDULA BHATKAR, J.)
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2 issues framed by the court
Whether the High Court should set aside the trial Court's order granting injunction against appellants not to dispossess plaintiffs or create third party rights in suit premises.
Whether the consent terms and evidence regarding possession disclosed in a related suit justify quashing the injunction order in the pending suit.
Kiritkumar G. Shah & Ors.
Zubin Harbin Jhaveri & Ors.
MRIDULA BHATKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
