JUDGMENT - R.K. Joshi, J.:---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. 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. 4. To support his cause he mainly relied upon his affidavit and that of his witness Madhukar Lovekar. In reply the defendant mainly relied upon the correspondence exchanged between the parties before the institution of the suit, certain photographs and affidavits, one of which was that of Mr., Munshi, a clerk working in the Office of the Court Receiver, but conversant with the facts of this case and in particular, reflecting on the point of possession. 5. Before taking a short resume of the relevant affidavits it would be worthwhile to refer to the correspondence. The earliest letter in point of time is dated 30th March, 1973, which is issued by the defendantss Advocate Mr. Shahapurkar. In this letter the defendant asserted that he is carrying on his business as a jeweller and goldsmith in the premises in dispute and paying a monthly rent of Rs. 13/- since 1942. His father also worked in these premises till his death in 1971. Shahapurkar. In this letter the defendant asserted that he is carrying on his business as a jeweller and goldsmith in the premises in dispute and paying a monthly rent of Rs. 13/- since 1942. His father also worked in these premises till his death in 1971. On making the plaintiff conscious of his rights, he bitterly complained that plaintiffs was attempting to create hurdles in his rights and occupation of these premises. He referred to numerous threats given by the plaintiff to dispossess him and to throw away the furniture as well as other belongings. He made it further clear that he is possessed of ample documentary evidence which would establish his rights to continue on the premises and that he was carrying on business here for the last thirty years and more. He cautioned the plaintiff that if he were to take the law in his hand and were to oust him, he would be facing the grave consequence of law. 6. On the very day the defendant, through his Advocate Mr. Shahapurkar, made a complaint to the Inspector of Police, Princess Street, Police Station, Bombay. He has virtually reiterated the above grievances and on tracing his right, its origin, has requested the police officers to take appropriate and suitable action against the appellant (plaintiff) and to prevent the breach of peace which was likely to occur by the threats given by the plaintiff. 7. On 18th April, 1973 the defendant had written another letter to the Chief Executive Engineer of the Bombay Building Repairs Reconstruction Board, complaining of the conduct and attitude of the present plaintiff and asking to consider his submissions before his belongings were thrown out high-handedly by the plaintiff. These were prompt actions, one of which was taken against the plaintiff, and they reflect a good deal on the bona fides of the defendant. It would be presumptuous to observe that all his grievances were imaginary and he was unnecessarily approaching the various officers of different departments concerned and trying to protect his own right. 8. If the surrender was of his own volition as now pleaded by the Plaintiff, as a man of prudence he would have promptly replied to the letter dated 30th March, 1973. 8. If the surrender was of his own volition as now pleaded by the Plaintiff, as a man of prudence he would have promptly replied to the letter dated 30th March, 1973. But the plaintiff keeps quite for nearly two months and for the first time on 28th May, 1973 comes out with a version that the defendant left the premises in the last week of January, 1973 informing him that he would never return and would better commence his business at Mughbhat Lane. He refuted the accusations of harassment and asserted that he was in exclusive possession. To this letter there was a prompt reply by the defendant on 19th June, 1973 in which he denied all the allegations and asserted that his furniture, instruments were still lying in the premises; as the Board had undertaken the repairs he had no choice but to stop the work temporarily from March, 1973. Immediately within a couple of days of this reply the plaintiff rushed to the Court with a suit a declaration and injunction and on the very day obtained the interim rule. 9. This takes me to the affidavit of the plaintiff as well as of his witness Madhukar Lovekar. Plaintiffs affidavit no doubt is in term of the allegations contained in the plaint and his witness Madhukar Lovekar tried to support him. May it be noted that Madhukar Lovekar was formerly in the employment of defendant, and it seems there was no love lost between them. Out of spite he was speaking in favour of the plaintiff. That is the grievance of the defendant and it is made clear in the counter affidavit. Be that as it may, one thing is certain that beyond a belated reply to the various notices and his solitary affidavit, the plaintiff does not rely upon any documents worthy of mention to establish his exclusive possession and/of his supreme rights. 10. The defendant, on the other has not only, filed his affidavit, but that of Mr. Munshi a clerk working in the Receivers Office, whose affidavit needs a somewhat detailed reference. On speaking to the management of this estate by the Receiver, the circumstances under which the occupants were called upon to vacate because of the impending, he testified so three or four important facts. Munshi a clerk working in the Receivers Office, whose affidavit needs a somewhat detailed reference. On speaking to the management of this estate by the Receiver, the circumstances under which the occupants were called upon to vacate because of the impending, he testified so three or four important facts. He referred to the oft-paid visits to these premises and said that he found the defendant in possession of less than half the room and the remainder was in the occupations of the plaintiff. The compensation receipts no doubt were in the name of the plaintiff, but a little further in the said affidavit he has said that on good many occasions as and when the plaintiff paid any compensation, the plaintiff received the defendants contribution in his presence and in respect of the portion of the room occupied by the defendant. On such collection being made from the defendant for his portion, the plaintiff cleared the Receivers dues. The third important statement made by him is that the plaintiff and defendant removed themselves temporarily sometime in the month of March 1973 as the repairs were undertaken by the Board. Finally he made one more important statement to the effect that even to the date of his affidavit which was made on 7th July, 1973 he was seeing the plaintiff and the defendant visiting the suit premises occasionally. The last statement is quite natural and in the consonance with the conduct of the occupants. If the defendant had really surrendered possession and left the premises in January 1973 with all his belongings, there was no ostensible reason for him to visit these premises in dispute when in particular he was supposed to carry on his business at Mugbhat. A person placed in this position can ill afford to lose his days earnings and take a pleasure in visiting the deserted premises. 11. Besides these two important facts, the defendant made reference to the licences obtained by him from the competent authorities which allowed him to carry on his business in these premises. He had his account books also and the register maintained under the Gold Control Rules and the Shops and Establishment statutes. 11. Besides these two important facts, the defendant made reference to the licences obtained by him from the competent authorities which allowed him to carry on his business in these premises. He had his account books also and the register maintained under the Gold Control Rules and the Shops and Establishment statutes. In passing he made a reference to certain orders received by the customers and delivery of articles even in April 1973, but the learned Judge for reasons better known to him has discarded that evidence on the ground that it was belated production. I am not attaching much weight to that part of the evidence. The defendant has also filed five affidavits of his five customers, but they were also ignored. Production may be a little late, but unless their authenticity was doubted, it would have been just and proper to look into them. However, this exclusion of evidence which is most material and important, has not impaired the defendants case in any manner. Therefore, I would prefer to rest my judgement on the very evidence which has been taken into account by the lower Court, although left to myself, I would have scrutinised the rest of the evidence and the same would have confirmed my conviction. 12. Another important and striking step taken by the defendant is to get the photographs with a view to establish the existence of his belongings in particular, the instruments or tools of his workmanship lying in a portion of these premises. If the defendant had really shifted to Mugbhat Lane, he would not have left his instruments which were the means of making out his livelihood to lie idle in the suit premises. 13. This practically completed the survey of the important evidence. The learned Judge has discarded the plaintiffs evidence, but his reasoning was criticised a good deal by Mr. Paranjape for the appellant. He summarised the learned Judges reasoning ass an erroneous approach to the entire case. In particular he laid stress on certain observation made by the learned Judge and the observation impugned were to the effect the plaintiff had not specified the place where the defendant was carrying on his business at Mugbhat Lane, that he said too much on the letter of 30th March, 1973 but did not scrutinize his reply of 28th May. According to Mr. According to Mr. Paranjape he has offered a plausible explanation in his affidavit as to why there was a delay in such a reply. Photographs may be there, articles may be visible; but it is known whether they belong to the plaintiff or the defendant. When the plaintiff allows the defendant to carry on his work in a portion of the premises, the licence is bound to be renewed on this address. The repairs were to be commenced in March 1973 and the defendant would not quit the premises in January 1973. These grounds which have appealed to the lower Court, according to Mr. Paranjape, have not been examined in the proper perspective and he tried to explain away each and every circumstance construed against him in his own way. 14. According to Mr. Paranjape, the letters addressed to the Inspector of Police or to the Executive Engineer would be self-serving statement and can have no evidentiary value against the plaintiff. But in making these submissions Mr. Paranjape, I am afraid, is ignoring the natural course of human conduct. It does not stand to reason that a person would unnecessarily waste his time, energy and money in moving the officers long before the controversy arose or soon after vacating the premises for no rhyme or reasons. Mr. Paranjapes criticism that his failure to point out the place of business of the defendant at Mugbhat cannot be a circumstance against him. To a certain extent, apparently he may be right, but if shift to Mugbhat was a fact, it was not difficult for the plaintiff to collect some evidence which would have gone a long way against the defendant and impressed the Court to find in his favour. Mugbhat is a place not unknown to the plaintiff, nor was it beyond his reach. The very landlord whose premises he occupied, nor if he was reluctant, the neighbours would have run to the rescue of the plaintiff and would have at least testified to the fact of carrying business in the said premises. About the instruments, urged Mr. Paranjape, there is no independent evidence. But the question still remains why defendant should lay hands over them and whether the plaintiff would have kept quiet if it were a false claim altogether. About the instruments, urged Mr. Paranjape, there is no independent evidence. But the question still remains why defendant should lay hands over them and whether the plaintiff would have kept quiet if it were a false claim altogether. In the very first affidavit plaintiff would have set out the articles left in this room and would have made an additional prayer that the defendant be restrained from removing a single piece therefrom. He relied upon his own explanation for the belated reply which is contained in paragraph 5 of his affidavit. But that explanation, apart from convincing, appears to be highly ingenious and an afterthought. What Mr. Paranjape calls to be self-serving statements, really they are not so. They reflect on the conduct of the defendant and his conduct has been consistent from the inception. Not only he is striving to maintain his possession but to establish his right to possession and apprehending the unlawful ouster at the plaintiffs hand he has adopted these measures. They cannot he said to be out of tune or out of place or uncalled for. 15. On the other hand, as I read the affidavits of the defendant and Mr. Munshi, they are not only consistent but cogent and convincing. Mr. Munshi who is an independent witness had no ostensible reason to support defendant at the cost of the plaintiff, nor does the plaintiff make any grievance against him at any stage. The other documents strongly support defendants cause. Documents and oral evidence apart, even on the broad or probabilities it does not stand to reason that the defendant who is carrying on business in such a pre-eminently business locality like Zaveri Bazar, would surrender it of his volition. Every tenant in Bombay or even every licensee in Bombay known his precious rights and is fully aware ordeals he has to face once he vacates the premises. Thirty years period is not a short one. He must have established his good-will there and no goldsmith of his standing can afford to lose the goodwill without consideration. The fact that the Board had undertaken the repairs, cannot be denied and it has come in evidence that may of the occupants or tenants in the adjoining premises had vacated and repairs had been carried out. He must have established his good-will there and no goldsmith of his standing can afford to lose the goodwill without consideration. The fact that the Board had undertaken the repairs, cannot be denied and it has come in evidence that may of the occupants or tenants in the adjoining premises had vacated and repairs had been carried out. It is under these singular circumstances he had to make room for the repairs being carried out, but one cannot be blind to the counted part of such a conduct. Mr. Munshi has told us in his affidavit that plaintiff also has vacated the premises. The evidence adduced by the defendant read in the context of these surrounding circumstances in clinching and unmistakably points in one direction that he has never surrendered possession voluntarily much less with an assurance that he would never returns as contended by the plaintiff. On the other hand, with little reluctance I am constrained to observe that the plaintiff has not approached the Court with clean hands. This is an equitable relief and on going through the order of the learned trial Judge I am not prepared to say that he has exercised his discretion injudiciously or capriciously. The order made by him calls for no interference and the appeal will have to be dismissed. Rule in application is discharged with costs. 16. Before parting with this judgement I am constrained to observe that plaintiff as unduly harassed the defendant by taking out so many proceeding simultaneously and has harnessed him to uncalled for costs. Therefore, I am directing the plaintiff-appellant to pay the costs in Appeal from order No. 362 of 1973, Civil Application No. 2906 of 1973 and Civil Application No. 1085 of 1974 in this Court in addition to his costs in the lower Court in the notice of motion. ------