ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 2463 OF 2008 PETITION NO. 2463 OF 2008 PETITION NO. 2463 OF 2008 Pragnya Mahendra Karia & Anr. ...Petitioners. (Orig.Defendants) Vs. Mr.Kirit Morarji Karia ...Respondent. (Orig.Plaintiff) Mr.P.K.Dhakephalkar, Sr. Counsel i/by Mr.S.D.Patil for the Petitioners. Mr.R.S.Datar for Respondent No.1. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 16th October, 2008. : 16th October, 2008. : 16th October, 2008. P.C. P.C. P.C. . The Petitioners who are the owners of the premises have challenged the Judgment and Order dated 29/11/2007 passed by the learned District Judge-III, Thane in Miscellaneous Civil Appeal No.96 of 2007 confirming the Judgment and Order dated 21/06/2007 passed by the Civil Judge, Junior Division, Thane below Exhibit-5, whereby directed the Petitioners to temporary mandatory injunction and to hand over the possession to the Respondent-Plaintiff and not to create third party right and interest thereof. The same has been confirmed by the Appellate Court also and dismissed the Appeal filed by the Petitioners. ( 2 ) 2. The Respondent who is the Original Plaintiff, has prayed in the suit as under:- "14. The Plaintiff therefore, prays that:- a. This Hon’ble Court be pleased to hold and declare that the Plaintiff is the lawful tenant of the suit premises viz. commercial premises bearing No.21, area admeasuring 27.7 sq.mtrs., in Amrapali Chitralekha Co-op. Housing Society, situated at Dr.Lajras Road, Charai Naka, Charai, Thane (West) 400 601. b. The Defendants be ordered and decreed to handover possession of the suit premises referred in para No.1 above to the Plaintiff. c. The defendants be ordered to handover the possession of the movable suit property referred in para No.7, above to the Plaintiff, ( 3 ) d. Pending the hearing and final disposal of the suit, by an order of temporary mandatory injunction the defendants be ordered to handover possession of suit premises and the movable suit property, to the plaintiff. e. Pending the hearing and final disposal of the suit, by an order of temporary prohibitory injunction the defendants be restrained from creating third party interest of whatsoever; nature or parting with the possession of the suit premises and movable suit property and/or carrying out any activities therein; f. Ad-interim reliefs in terms of prayer (d) and (e) above kindly be granted in favour of the Plaintiff; g. Costs of the suit be provided for, in favour of the Plaintiff; h. Any other and further reliefs, kindly be granted in favour of the plaintiff, in ( 4 ) the interest of justice." 3. Along with an Application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, filed on 23rd January, 2007 and prayed for temporary mandatory injunction as referred above. 4. The suit is pending. Based on the affidavit and documents filed by the parties, pending the trial, granted the temporary mandatory injunction, whereby practically allowed the suit. This is according to me, in the facts and circumstances of the case, ought not to have been granted. Such mandatory injunction in a case where there are disputed questions of facts which need to be considered after due inquiry and evidence, is not acceptable, whereby, the Court has ordered to hand over the possession of the suit premises. There is no specific material on record to show that the suit premises was in his possession, except rent receipts of the year 2004, which are also in dispute. The Respondent was doing business, based upon unregistered deed of partnership between him and deceased brother Mahendra since 1st April, 1992. The said Mahendra expired and therefore, the partnership dissolved due to the death of Mahendra who expired on ( 5 ) some time in the year 1997. Therefore, the claim that he has been in exclusive possession of the suit premises as a tenant and has been carrying on business need detailed scrutiny and evidence. There is nothing on record to show any document prior to the year 2004 to establish so called tenancy right. The premises, according to the Petitioners, was locked after the death of said Mahendra. The case of forcible dispossession is fabricated as alleged including the complaint. The Petitioners have averred specifically that the Petitioners are in actual possession of the Suit Premises since 1997. There is a suit, filed for recovery of Rs.85,871.35 against the Respondent-Plaintiff and to counter attack and to pressurise, the same suit in question has been filed. The said partnership deed, even if any, was not registered and, therefore, also such suit based upon unregistered partnership deed is without jurisdiction as alleged. The filing of the suit for possession, speaks that he is not in possession of the suit premises on the date of itself. In these background, the findings given by the Courts below i.e. practically amounting to grant decree as prayed by holding that the prima-facie Plaintiff has proved the case for temporary mandatory injunction is ( 6 ) unsustainable. The material placed on record is not sufficient to establish the right, title and interest in the property of the Respondent-Plaintiff. Any how, it cannot be without due inquiry and trial. The reasoning, therefore, based upon the Clause 11 of the Partnership Deed as well as alleged Rent receipt of the year 2004 which was paid by cheque on 20/05/2006 is in no way sufficient to demonstrate that there was such relationship and the Plaintiff was in possession of the premises as a tenant. The temporary mandatory injunction to restore the possession at this stage itself, in the facts and circumstances of the case, though awarded by the Courts below, in my view, is need to be interfered, as this amounts to granting the main prayer of the suit itself, specifically when there is nothing to justify that the Plaintiff was in physical possession on the alleged date of dispossession when admittedly, after the death of one partner, as per the Partnership Deed itself, the partnership was dissolved. Therefore, this order to that extent of granting to hand over the possession is quashed and set aside. 5. However, the same reasoning till the decision of the suit, the directions not to create third party ( 7 ) right and interest in the shop premises, is maintained. Considering the facts and circumstances of the case, the suit is expedited so that if the case is made out, an appropriate order can be passed after collecting evidence and material on record through trial then the reliefs can be granted as prayed. 6. In view of this, the Writ Petition is partly allowed. The impugned order of directing temporary mandatory injunction is quashed and set aside. However, the order of injunction not to create third party right or interest in the suit premises is maintained. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)