JANARDHAN GAJANAN VAIDYA Vs. NARENDRA RAMCHANDRA DEORUKHKAR

JUDGEMENT

(1.) The original plaintiff who is the appellant before this Court and whose notice of motion for an injunction restraining the defendant (respondent) from interfering with the peaceful enjoyment of the property in dispute till the disposal of the suit is dismissed by the learned Judge of the City Civil Court, Bombay, suit No. 4637 of 1973, has come in appeal against the order dated 14th August, 1973.

(2.) The few facts necessary for the disposal of this appeal stated briefly are that the property in dispute is one room of 22 x 14 standing on the 1st floor of House No. 13/15, Dhanji Street, Bombay -3. This property at all material times, at least since 1968 is in the possession of the Court Receiver. According to the plaintiff (who is a gold-smith by profession and carrying on business in these premises for last so many years,) the defendant who was allowed to carry on similar business for a couple of years next before the suit, in a portion of these premises, surrendered the said portion in his favour in the last week of January, 1973 voluntarily and left with all his belongings, tools of workmanship etc. telling him that he would never return. By about the same time i.e. January 1973 the Bombay Building Repairs and Reconstructions Board commenced repairs to the suit premises and the defendant, finding it difficult to carry on his business, it is the further allegation of the plaintiff, left the portion once for all with an intimation to the plaintiff, that he would start his business at Mugbhat. As a matter of fact, the defendant has installed himself somewhere are Mugbhat and is carrying on his business as a gold-smith, but as he is attempting to re-enter the premises in lawfully and illegally, he was constrained to file this suit for two-fold, relief viz., a declaration of his rights and for an injunction restraining the defendant from obstructing him in the peaceful enjoyment of the entire premises.

(3.) The suit was instituted on 21st June, 1973 and on the same day the plaintiff took out a notice of motion for an ad interim injunction and this relief was granted on the allegations similar to those summarized above. The notice was not served for nearly ten days on the defendant, but immediately on the service of the notice, the defendant put in appearance and resisted the claim mainly on the ground that since 1941-42 not only himself but along with his father, who unfortunately died somewhere in the year 1971, he has been carrying on business in a part of the suit premises. As the Board referred to above, undertook the work of carrying out the repairs and as many of the tenants or occupants were asked to vacate, both the plaintiff and the defendant were left with no choice. He stoutly denied to have removed his belongings including the tools of his workmanship or that surrendered possession as pleaded by the plaintiff. He never made any commitment as contended by the plaintiff that he was finding a better place at Mugbhat and had no mind to returns. All these allegations, submitted the defendant, are purely imaginary and the rule has been obtained behind his back just to keep him out of possession and to avoid an action in ejectment.