*1* nms.1507.10 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1507 OF 2010 IN SUIT NO.1373 OF 2010 Prem Santal Ram Jaiswal. ..Plaintiff -Versus- Abdul Razak Abbas Mohd. Dhole and others. ..Defendants .......... A.S.Uraizee a/w M.V.Singh, for the Plaintiff. Ms.Purnima Bhatia, for the Defendant Nos.1 and 2. Dr.Birendra Saraf i/b Shah and Sanghavi, for the Defendant Nos.3 and 4. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 05th October, 2010. P.C. 1 By this Notice of Motion the Plaintiff seeks mandatory order of restoration of possession of the suit premises which he describes as “Otla” garage shop No.4 covered with C.I. sheet roof admeasuring 560 sq.ft. situated on ground floor at Shirinbai Mansion (Shroff Compound), 10th Lane, Khetwadi Back Road, Mumbai-400004. 2 This is a motion moved in the suit under Section 6 of the Specific Relief Act and therefore, essential ingredients have to be established and they are that the Plaintiff was in possession of the immovable property, that he was dispossessed therefrom without his *2* nms.1507.10 consent and without due process of law. 3 To show that the Plaintiff was in physical possession of the suit premises described above and that he was dispossessed therefrom, the Plaintiff states that the Defendant Nos.1 and 2 are husband and wife and the Defendant No.3 is a private limited company which has acquired the interest in the property in which the suit premises are situated and the Defendant No.4 is the Director of the Defendant No.3. It is stated in paragraph No.4 of the plaint that the Plaintiff was put in actual physical possession since prior to 10.03.1985. He has given the boundaries of premises and annexed at Exhibit-A to the plaint is an extract of the City Survey Plan of the suit premises. The Plaintiff states that he was in continuous, settled and exclusive possession, so also, in enjoyment and occupation of the suit premises till 17/18.12.2009 on which date he was illegally and forcibly dispossessed. He claims to be a skilled motor mechanic and the suit premises have been used by him for his business as motor repairing garage since prior to 10.03.1985 till 17/18.12.2009. Paragraph Nos.5 and 6 of the plaint read thus:- “5. Plaintiff states that he is a skilled motor mechanic. Plaintiff states that the suit premises has been used by him for his business as Motor Repairing Garage therein since prior to 10.03.1985 till 17/18.12.2009. Plaintiff states that he equipped in suit premises paraphernalia of business of Motor Repairing Garage such as tools and equipments, machinery and gadgets, required by him to be used in efficiently and effectively running his business of Motor Repairing Garage in the suit premises. Plaintiff states that in due course of time he has been patronized by a large clientèle, private owners and substantially Taxi Drivers and he served them to their requirements and satisfaction. Plaintiff states that he spent most of his time in the suit premises and thus used the same also for his alternate stay therein. Plaintiff invariably used to park cars of his clients within and space out of the suit premises and used the appurtenant and surrounding & periphery *3* nms.1507.10 space for more beneficial use and enjoyment in connection with his business and also often briefly used the open space on footpath during completion of repairing servicing work and thereafter delivery of vehicles to owners thereof. 6. Plaintiff has annexed a set of 7 photographs out of which Photo No.1 shows a car of the Plaintiff’s client Mr.Nana Khokhawala parked in the suit premises on 17/18.12.2009 and remaining photos show the mode and manner of total blocking of the Plaintiff’s access in and out of the suit premises by erecting huge Patra Sheets and totally causing wrongful restraint of Plaintiff within and around the suit premises. These 7 photos are respectively marked as Ex.B. Plaintiff states that photo Nos.4, 5 & 7 shows the Plaintiff’s cupboard & Metallic Trunk & one wooden box and other articles, lying in the suit premises about which Plaintiff has averred in para-5 above.” 4 In paragraph No.7 of the plaint, the usual pleadings that are required for the suit of the present nature are set out and thereafter, in paragraph No.8, the Plaintiff states that he is protected licencee or deemed tenant of the suit premises. With these pleadings, this Court is not concerned. Needless to state that all observations that are made in this order pertains to the claim that the Plaintiff was in physical possession and that dispossession by force and without due process of law. Therefore, the rights, title and interest, if any, claimed in the suit premises, is a matter which need not be considered in these summary proceedings. 5 It is stated in paragraph No.9 of the plaint that the property known as Shroff Compound is occupied by residential and commercial tenants. The Plaintiff gives the details of tenants and states that the Defendant No.1 has been collecting rent in respect of the suit premises initially at Rs.1100/- per month and thereafter, at Rs.2,000/- per month and annexed the copies of rent receipts. 6 The Defendant No.1 is a senior citizen and stated to be having Mutton business in shop No.3. The building/property is old and in *4* nms.1507.10 dilapidated condition. It is stated that the Defendant No.1 used to pay monthly rent through the Plaintiff to the Municipal Assessment Department and when the Plaintiff started his garage the Defendant No.1 retired having stopped his mutton shop business and Shop No.3 is occupied partly by Mr.Pradeep Pandey and partly by Mr.Uday Jain who are doing Bhangar business therein but the Plaintiff claims to have been paying Rs.2000/- per month to the Defendant No.1. 7 The Plaintiff relies on the documents mentioned in paragraph No.11 of the plaint to show that he was in physical possession of the suit premises. Rest of the averments in the plaint need not to be referred because they are to support the claim of the Plaintiff for interim relief. 8 On attention being invited to the order dated 14.07.2010 made by Hon’ble Mr. Justice Ganoo in this very motion, Mr.Uraizee submits that all documents that have been placed on record have not been adverted to, therefore, this Court has proceeded on the basis that the suit premises are not a identifiable property and since the Plaintiff was not in possession of the immovable property, his claim of being dispossessed forcibly therefrom and without process of law, is prima facie not tenable. 9 With a view to ensure that the Plaintiff’s claim to have been dispossessed forcibly and without due process of law from the immovable property, is not dismissed without considering the basic requirement and documents, that I have heard Mr.Uraizee at some length. With his assistance I have perused the plaint and annexures and all affidavits on record. 10 From a reading of the plaint, it appears that the Plaintiff was inducted in a portion which could be identified as immovable property for some time. He was there at least as claimed from 1985 or if not that early from 1998 to 2002. However, the Plaintiff claims that he carried on some *5* nms.1507.10 business therefrom. He set up that claim in the plaint and he has also mentioned the nature of his business. The Plaintiff claims to be a skilled motor mechanic and therefore, states that the suit premises have been used by him for his business as motor repairing garage since prior to 1985 till 17/18.12.2009. This is a fairly long period and if for 24 years, the Plaintiff has been carrying on business of repairing motor cars, surely the Plaintiff could have produced some documents to show that the said business was being conducted by him from this “Otla” garage. If cars have been repaired by him at the suit premises then it was possible for him to produce some receipts of the customers. There are no such documents except an affidavit stated to be filed by one person who states that his car was being repaired by the Plaintiff. That affidavit will not be of any assistance to the Plaintiff because the Plaintiff claims to be carrying on his business for nearly 24 years. It is the Plaintiff’s case that the Plaintiff has equipped the suit premises by installing the machineries, tools and other materials for efficiently and effectively carrying on his business. He claims to be patronized by large number of clients, private owners and substantially taxi drivers. It is stated that the cars were parked within and in the open space of the suit premises and the Plaintiff used the appurtenant and surrounding and periphery space for more beneficial use and enjoyment in connection with his business. However, there is absolutely no document to show that such business was being carried on. There is no shop and establishment licence. There is not even electricity connection. There is no document evidencing storage of machineries, equipments and other tools. No details, invoices and receipts have been produced of the clients who are stated to be patronizing the Plaintiff. In such circumstances, the photographs particularly that of car parked would not establish that the Plaintiff is in physical possession assuming that the *6* nms.1507.10 suit property is identifiable and capable of being used as a garage. Thus, prima facie, the Plaintiff’s case of possession is doubtful. 11 Further, reference is made to the documents relied upon particularly in paragraph Nos.10 and 11 of the plaint. All that emerges therefrom is that the Plaintiff has paid rent, according to him, evidenced by receipts. Further he is stated to have paid municipal assessment but the bills in that behalf are raised on the Defendant No.1. Once the pleadings are carefully perused as whole, it is apparent that in the garb of a suit under Section 6 of the Specific Relief Act the Plaintiff claims his right in the suit premises not as a tenant but as a licencee. The pleadings are worded in a manner to show that irrespective of possession, the Plaintiff has right, title and interest in the suit premises. However, it is not material in summary proceedings invoking Section 6 of the Specific Relief Act. On that account, physical possession must be shown and that must be on the basis of the documents. Each of the documents referred in paragraph No. 11 of the plaint have been carefully perused by me. The telephone bill seen in isolation cannot be of any assistance considering the nature of the business that the Plaintiff was carrying on from the premises in question. Further the notice dated 09.12.2009, assuming the same was issued by the Defendant No.1’s Advocate, although it is vehemently denied, will not show that the Plaintiff was in continuous physical possession. The Plaintiff claims to have been physically dispossessed on 17/18.12.2009. However, this notice states that the Plaintiff was allowed to run and conduct the business of motor garage in the open space of the shop premises on agreeing to pay Rs.2000/- with deposit of Rs.43,000/-. The agreement expired on 09.07.2001 as it was for 11 months and the deposit amount was adjusted towards royalty for further period. This notice/ letter further states that the possession is from 10.08.2002. Thereafter, it is stated that *7* nms.1507.10 monthly royalty amount was not paid and the Plaintiff was ready and willing to handover vacant possession to the Defendant No.1 but tried and avoided to reduce the said agreement of handing over physical possession into writing. The notice recites that from January, 2006 till the date of notice, monthly royalty of Rs.4500/- is not being paid and the premises have been occupied for running the garage business unauthorizedly. Throughout this letter there is reference to the open space and there is nothing indicated as “Otla” garage admeasuring 560 sq.ft. as claimed. Therefore, even if such a notice was issued that itself will not demonstrate that the Plaintiff was in physical possession of the suit premises and carrying on motor garage business therefrom. It is Defendant No.1’s claim that he was not in possession of the suit premises but carrying on his business from an open space. Therefore, this notice and it contents prima facie do not support the Plaintiff’s case of being in physical possession of the suit premises. 12 For all these reasons, there is some substance in the contentions raised by Ms.Bhatia and Mr.Saraf that the Plaintiff was at sometime allowed to occupy this portion/open space from which he conducted business but sensing that the building is dilapidated he left the place and thereafter, on noticing redevelopment activities, he has turned around and claimed physical possession so that he gets some benefits of the redevelopment and reconstruction at site. The plaint reads as a whole gives an impression that though the claim of forcible dispossession is projected but there was no occasion to say that the Plaintiff was inducted as tenant or in any event by his continuous possession has acquired status of permanent licencee. 13 For the above reasons, I do not find substance in the Notice of Motion and it is dismissed. *8* nms.1507.10 14 All observations and findings are prima facie made with a view to decide the application in a suit under Section 6 of the Specific Relief Act and if the Plaintiff claims rights then by virtue of Section 6(3)of the Specific Relief Act that claim can be agitated by him by instituting appropriate proceedings before appropriate forum. 15 Notice of Motion is dismissed. No costs. (S.C. Dharmadhikari, J)