BGD 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 APPEAL APPEAL APPEAL FROM ORDER NO.739 OF 2008 FROM ORDER NO.739 OF 2008 FROM ORDER NO.739 OF 2008 IN IN IN BCCC BCCC BCCC S.C. SUIT NO.1200 OF 2008 S.C. SUIT NO.1200 OF 2008 S.C. SUIT NO.1200 OF 2008 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO.865 OF 2008 APPLICATION NO.865 OF 2008 APPLICATION NO.865 OF 2008 Shri Prakash Gowda ... Appellant Vs. Shri Sudhir Mohan Prabhu & Ors. ... Respondents Mr. Rajendra R. Mishra for Appellant Mr. P.A. Sawant, Advocate for Respondents No. 1 and 2. Mr. Mohan Jadhav, Advocate for Respondents No. 3 and 4. CORAM CORAM CORAM : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J. DATE DATE DATE : 29TH JULY, 2008 : 29TH JULY, 2008 : 29TH JULY, 2008 P.C. P.C. P.C. :- :- :- 1. Rule is made returnable forthwith. The appeal is taken up for final hearing. Heard the learned Advocates. 2. The present appeal is preferred against an ad-interim order dated 26th June,2008 passed by the Bombay City Civil Court at Bombay, in Suit 2 No.1200 of 2008. Respondents No.1 and 2 are the original Plaintiffs. Respondents No.3 and 4 who are parents of respondent No.1 are the original defendants No.1 and 2. The appellant is original defendant No.3 and respondent No.5 is original defendant No.4. Respondent No.1 alongwith his wife files this suit against his parents and two others for a negative declaration that they have no right to interfere with or obstruct with his peaceful use, occupation and possession of the suit premises i.e. Flat No.201, "Omkar", Pandurangwadi Road No. 2, Goregaon (East), Mumbai without following due process of law. They also seek a permanent injunction to restrain the appellant and other respondents from disturbing possession of the suit property. It is to be noted that when it comes to seeking the relief of permanent injunction, respondents No. 1 and 2 are not seeking limited relief against forcible dis-possession but are seeking an absolute injunction. It may also be noted that the plaint has been valued under Section 6(IV)J of the Bombay Court Fees Act contending that the subject matter is not susceptible of monetary valuation. A relief of absolute injunction ought to have been valued at the market value of the premises in 3 question and ad-valorem court fee paid thereon. 3. Perusal of the plaint shows that the suit premises is owned by respondent no.3, the father. Respondent No.1 and his wife respondent No.2 contend that they have been living in the suit premises as members of family of respondent No.3. There is no independent right claimed to the suit premises. At para 3 of the plaint, it is stated that the suit premises have been received by the respondent No.3 on ownership basis on redevelopment of Durga Prasad Chawl in lieu of Room No.1 of which he was the tenant. It is contended that earlier the tenancy in respect of the room stood in the name of brother of respondent No.3, one Madhukar Prabhu. But the plaint does not disclose the consequence of the contention. 4. Mr. Mishra, the learned Advocate for the appellant submits that on 18th June,2008, respondents No.3 and 4 executed registered agreement of sale and handed over vacant possession of the suit premises to the appellant. Two days thereafter i.e. on 20th June,2008, respondent No.1 filed a complaint with Goregaon 4 (East) Police Station vide F.I.R. No.2360 of 2008 alleging that his parents and the appellant had dis-possessed him from the suit premises on 18th June,2006. Copy of complaint shows that in the complaint, respondent No.1 requests that he should be put in possession of the premises and his articles be returned to him. The allegations in the complaint are specifically made against his own parents. It is contended by the appellant thereafter until 24th June,2008, the suit premises were under the lock of the appellant. On 24th June,2008, respondent No. 1 broke open the lock and forcibly entered into the premises. The appellant then filed complaint with Goregaon (East) Police Station on the same day vide F.I.R. No.241 of 2008. A copy of this complaint has been produced before the Court. 5. The contents of the complaint made by the respondent No.1 to the Police prima facie indicate that from 18th June,2008 he was no longer in possession of the suit premises. This fact is not disclosed in the plaint. Instead it is contended that on 18th June, 2008 only an attempt was made to dispossess him from the suit premises. It is however admitted that from that day his parents 5 are not residing in the suit premises. According to respondent No.1, the whereabout of his parents are not known to him. The averment made in the plaint is clearly not supported by the complaint of the respondent No. 1 made to Police. 6. Taking into consideration the entire facts and circumstances of the case particularly in view of allegation that the respondent No.1 had forcibly entered into the suit premises on 24th June,2008 as prima facie evidenced by the complaint to the Police, the learned Judge ought not to have granted ad-interim reliefs to respondent No.1. At Para 11 of the order, it is observed that the undisputed fact that emerges at this juncture is whether rightly or wrongly or by trespass, the respondent No.1 is in possession of the suit premises and therefore the status-quo is required to be preserved. This is not the case of a trespasser with settled possession of the premises. In the circumstances, the order of status-quo cannot be sustained. 7. In the circumstances, the Appeal is allowed. The impugned order is set aside. Costs to be cost in cause. Mr. Mishra, in fairness 6 makes a statement that the appellant will not take any forcible action as against respondents No.1 and 2. 8. In view of disposal of Appeal from Order, the Civil Application does not survive, it is disposed of accordingly. ( SMT.R.P. SONDURBALDOTA, J.) SMT.R.P. SONDURBALDOTA, J.) SMT.R.P. SONDURBALDOTA, J.)