SM 1 37.ao.562.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 562 OF 2011 Shyam Vasant Kotak and another ....Appellants Versus Ram Vasant Kotak ....Respondent ____________ Mr. Sunil R. More for the Appellant. Ms. Ratnarani Roy i/b Roy's Law Firm for the Respondent. CORAM: J. H. BHATIA, J. DATED : 6 TH JULY, 2011. P.C.: Heard the learned Counsel for the Parties. 2. The appeal is preferred by the original Defendant Nos. 1 and 2 challenging the temporary injunction granted in favour of the Plaintiff/Respondent in Notice of Motion No. 1427 of 2010 in Short Cause Suit No. 1404 of 2010, whereby the Defendants are restrained from disturbing possession of the Plaintiff over one bedroom in the house and right of ingress and egress to the said bedroom. Admittedly, the Plaintiff and the Defendants are brothers interse. According to the Plaintiff, the suit property which is a bungalow was originally taken on lease by his grandfather Manilal Harjivandas Kotak, who was the head of the joint family. After his death, Plaintiff's father Vasant Manilal Kotak become SM 2 37.ao.562.11 tenant of the premises and after his death, rent receipts were issued in the name of the mother of the Plaintiff and the Defendants. However, the joint family consisting of the Plaintiff and Defendants continued in occupation of the said premises. According to the Plaintiff, one bedroom has been in his possession throughout but the defendants are trying to disturb his possession and also right ingress and egress interest in the said bedroom. With this pleading, he filed the suit for injunction and also prayed for temporary injunction by way of the Notice of Motion. 3. The Defendants, while admitting that the suit property has come to them through their grandfather and father as tenants, they deny that the Plaintiff is in possession of any bedroom in the said house. It was also contended earlier in the Suit No. 1671 of 2004, which was filed by the Plaintiff for the same relief before City Civil Court, the City Civil Court had directed to return the plaint for presentation before the appropriate Court as the City Civil Court had no jurisdiction. That order is challenged by the Plaintiff by filing Appeal against order. That Appeal against order was also dismissed by the High Court. In view of this, the Plaintiff could not have field second suit. It is contended that the second suit is also without jurisdiction and the City Civil Court could not entertain the present suit and grant the relief in the Notice of SM 3 37.ao.562.11 Motion. 4. The learned Counsel for the Defendants/Appellants pressed the above objection to the tenability of the suit. However, the learned Counsel for the Plaintiff/Respondents has rightly pointed out that in the present suit, the City Civil Court, after hearing the parties has given finding that in view of the prayers made in the preset suit, which are different from the reliefs sought in the earlier suit, the City Civil Court has jurisdiction. That finding has been challenged by the Defendants by filing the Revision Application, which is pending. Therefore, whether the City Civil Court has or has not jurisdiction to entertain the second suit is subject matter of CRA and that point cannot be agitated in the present Appeal against Order on temporary injunction in the Notice of Motion. 5. Coming to the facts of the case, it is clear that the bungalow was taken on lease by the grandfather of the parties and after death of the grandfather, the father of the Plaintiff had become tenant. After the death of their father, rent receipts were issued in the name of their mother. In such circumstances, prima facie the contention of the Defendants cannot be accepted that the Plaintiff has not right to occupy any portion of the house. The SM 4 37.ao.562.11 learned Counsel for the defendants conte4nded that the Plaintiff had admitted in the earlier suit that he was not residing in the suit premises. For this, the has drawn my attention to paragraph no. 21 in the plaint in the Suit No. 1671 of 2004. However, on perusal of that, it appears that according to the Plaintiff, the family had floated a company in Bangalore and for day to day management of business, the Plaintiff was required to stay at Bangalore with his immediate family members. But during of that period from 1980 till the second quarter of 2001 and thereafter the Plaintiff had retained his bedroom in the suit premises wherein he stayed during his frequent visits to Mumbai. In these circumstances, if the Plaintiff was required to stay at Bangalore and if he retained a bedroom at the family house in Mumbai, it cannot be said that he is not in possession of the said room. 6. Taking into consideration all the facts and circumstances, I do not find any mistake or illegality in the impugned order. In the result, the Appeal stands dismissed. (J. H. BHATIA, J.)