Judgment : 1. Heard learned Counsel for the parties. 2. By this Appeal from Order appellant original defendant challenges the order dated 05.08.2013 passed by the Bombay City Civil Court, Dindoshi, Goregaon (E), Mumbai in Notice of Motion No.1391 of 2011 in S.C. Suit No.1180 of 2011 directing appellant, his wife and children to remove themselves from the suit premises i.e. Room No.401, Kushinara Co-op. Housing Society Ltd. Chuim Village, Dr. Ambedkar Road, Khar (West) Mumbai 400 052, admeasuring area of 225 sq. ft (carpet area). 3. This is an unfortunate case, where the respondent original plaintiff-father wants that the appellant original defendant-son should be removed from the family house as he has become nuisance to him. 4. For the sake of convenience hereinafter the appellant referred as defendant and respondent as plaintiff as per their nomenclature appears in the suit before the trial court. 5. A few facts of the matter are as under : i) The plaintiff has been allotted room premises bearing room No.401, Kushinara Co-op. Housing Society Ltd. Chuim Village, Dr. Ambedkar Road, Khar (West) Mumbai 400 052, admeasuring area of 225 sq. ft (carpet area) in lieu of his old structure, which was demolished under slum rehabilitation scheme. Plaintiff is residing in the said suit flat along with their son defendant, his two unmarried daughters and one married daughter. As the defendant started harassing the plaintiff from time to time, plaintiff filed complaint with the police station on 05.01.2010 stating that defendant alongwith his wife started tormenting to the plaintiff mentally as well as physically. Plaintiff in the plaint stated that the defendant was earning more than Rs.30,000/- per month. ii) When the plaintiff lost his wife in the year 2005, the defendant along with his wife left the home and started residing at Chembur along with his father-in-law and mother-in-law. The defendant and his wife entered the suit flat with the help of duplicate key without plaintiff's permission. As it became unbearable for the plaintiff and his two unmarried daughters and one married daughter to stay with the defendant, the plaintiff filed S.C. Suit No.1180 of 2011 in the Bombay City Civil Court at Dindoshi for a mandatory order and decree directing defendant to remove/vacate themselves along with their goods, articles from the suit premises. Plaintiff claims following reliefs in the said suit. Plaintiff claims following reliefs in the said suit. "a) That an appropriate mandatory order and decree of this Hon'ble Court it be decreed that the Defendant, his wife and children have no legal right to continue to stay in the suit premises or any part thereof and accordingly they be order and directed to remove/vacate themselves along with their goods, articles and all their belongings from the suit premises being Room No.401, Kushinara Co.op. Housing Society Ltd., Chuim Village, Dr. Ambedkar Road, Khar (W), Mumbai - 400 052, admeasuring area of 225 sq. ft. carpet area as duly shown in the rough sketch plan at Exhibit 'A' by following due process of law; b) That the defendant, his wife or any person claiming by or under them be directed by an appropriate order and direction of this Hon'ble Court from in any manner selling, transferring, alienating or creating any charge of the suit premises or any part thereof being Room No.401, Kushinara Co.op. Housing Society Ltd., Chuim Village, Dr. Ambedkar Road, Khar (W), Mumbai - 400 052, admeasuring area of 225 sq. ft. carpet area to any third person without any written consent of the Plaintiff and 3 unmarried daughters and/or by order of the any Competent Court; c) That pending the hearing and final disposal of the suit the Defendant, his wife, children or any persons claiming by or under them be restrained by an appropriate order and injunction of this Hon'ble Court from in any manner representing to any person as owner of the suit flat and thereby intending to and/or selling, transferring, assigning, alienating the suit premises or any part thereof being Room No.401, Kushinara Co.op. Housing Society Ltd., Chuim Village, Dr. Ambedkar Road, Khar (W), Mumbai -400 052, admeasuring area of 225 sq. ft. carpet area to any third person without any written consent of the Plaintiff and/or order of the court; d) That pending the hearing and final disposal of the suit the Defendant, his wife, children or any person claiming by or under them be ordered and directed to remove themselves from the suit premises along with their goods, articles and all belongings and to quit and vacate the suit premises so as to enable the Plaintiff to reside peacefully and happily in the suit premises being Room No.401, Kushinara Co.op. Housing Society Ltd., Chuim Village, Dr. Housing Society Ltd., Chuim Village, Dr. Ambedkar Road, Khar (W), Mumbai - 400 052, admeasuring area of 225 sq. ft. carpet area; e) Ad-interim and interim reliefs in terms of prayer (c) and (d) above be granted; f) Cost of this petition be provided for;" iii) In that suit, the plaintiff preferred Notice of Motion No.1391 of 2011. That Notice of Motion was allowed by the Trial Court after considering the reply filed by the defendant. Hence, present Appeal from Order. 6. The learned counsel Mr. K.N. Kore appearing on behalf of defendant submits that the impugned order dated 05.08.2013 passed by the Trial Court in Notice of Motion No.1391 of 2013 directing defendant to remove themselves from the suit premises is against justice, equity and good conscience and same is liable to be set aside. He submits that the Trial Court failed to appreciate that being a member of the family, he has right to stay in the suit premises. He further submits that the defendant has right in the suit property and therefore, trial court should not have granted the mandatory injunction directing defendant to vacate the suit premises within stipulated time. He submits that the defendant having school going daughters, but no source of income. He submits that it is impossible for the defendant to acquire separate accommodation in the city like Mumbai. He further submits that in any case, as a son of the plaintiff, he has right to stay in the suit premises. On the basis of these submissions, the learned counsel for the defendant submits that the impugned order passed by the Trial Court dated 05.08.2013 in Notice of Motion No.1391 of 2011 be set aside. He further submits that the Trial Court failed to consider that at the stage of interim order, mandatory order cannot be passed. 7. The learned counsel for the defendant submits that the Apex Court in the matter of Best Sellers Retail (India) Ltd. V/s. Aditya Birla Nuvo Ltd. & Ors., reported in (2012) 6 Supreme Court Cases 792 held that at the time of passing the order of injunction, court should consider three factors i.e. a) irreparable loss, b) prima facie case in favour of party seeking relief and c) it must be shown prima facie that injury suffered by plaintiff on refusal of temporary injunction would be irreparable. He submits that these three factors are not considered by the Trial Court at the time of passing interim order. 8. On the other hand, the learned counsel Mr. Anand Singh appearing on behalf of plaintiff vehemently opposed the present Appeal from Order. He submits that the suit premises is self acquired property of the plaintiff. He submits that initially plaintiff was residing in slum, because of rehabilitation scheme under SRA, the developer allotted the suit flat in the name of the plaintiff. Being the owner of the suit premises, plaintiff has right to restrict the entry of defendant in the suit premises. He submits that plaintiff is residing in the suit premises along with his two unmarried daughters and one married daughter whom her husband has forsaken. He submits that the plaintiff has in all five daughters and one son. After the marriage, son started harassing the plaintiff on one or the other ground. Defendant tried to create third party right, title and interest in respect of the suit premises. He further submits that in 2005, when the plaintiff lost his wife, the defendant along with his wife started residing at Chembur. He submits that as soon as the suit premises became ready for occupation, the defendant with malafide intention with duplicate key of the suit premises entered in suit premises and started residing without consent of the plaintiff. He submits that the defendant is earning more than Rs.30,000/-per month. He can make appropriate arrangement of his own. The plaintiff is retired servant from Railway department. He submits that the defendant is harassing the plaintiff as well as his daughters mentally and physically also. Therefore, it is impossible for him to stay alongwith defendant. Plaintiff tried to adjust with the defendant, but it became impossible. Hence, as a last resort, plaintiff filed the suit and preferred Notice of Motion for mandatory injunction. He submits that in any case, defendant has no right, title and interest in the suit premises. These facts are considered by the Trial Court at the time of passing the impugned mandatory order dated 05.08.2013. On the basis of these submissions, the learned counsel for the plaintiff submits that there is no substance in the present Appeal from Order and same to be dismissed with costs. 9. The counsel for the parties heard at length. The suit premises are of the area of 225 Sq.ft. On the basis of these submissions, the learned counsel for the plaintiff submits that there is no substance in the present Appeal from Order and same to be dismissed with costs. 9. The counsel for the parties heard at length. The suit premises are of the area of 225 Sq.ft. allotted to the plaintiff under SRA scheme. Besides the plaintiff, the defendant and his wife, two unmarried daughters of the plaintiff and his daughter forsaken by the husband, are residing at the suit premises. The defendant has been torturing the plaintiff to such an extent that he had to report against the defendant at the police station on 5th January 2010 wherein he complained against the defendant and his wife. The stay of the defendant with the Plaintiff at the suit premises, is as his son. He cannot claim to be tenant in common with his father nor can he claim to be licensee under the Rent Control Act. In this connection reference may be made to the decision of our High Court in Dias Conrad v/s. Dias Joseph reported in 1995 (3) Bom.C.R. 218 . The para 8 of the judgment reads thus:- "8. Now granting for a moment that the appellant is entitled to canvass a plea of licence in the appellate Court, whether the appellant has made out such a case. The learned Counsel for the appellant made it clear that he is not claiming as licensee as defined in the Bombay Rents, Hotel and Lodging House Rates "Control Act, 1947 obviously because the definition of a "licensee" therein excludes a member of the family. The appellant being a son cannot claim to be a licensee or a tenant under the said Act of 1947. The learned counsel for the appellant contended that the appellant is a licensee under S. 52 of the Indian Easements Act, 1882. In my view, the appellant cannot be called as a licensee under S. 52 of the said Act. What S. 52 of the Act says is that if one person grants to another a right to do something on an immovable property of the grantor, then such a right is called "licensee". That means it is a transaction between one person and another where some permission is granted to do something. In the present case, we are not concerned with any such two persons at all. That means it is a transaction between one person and another where some permission is granted to do something. In the present case, we are not concerned with any such two persons at all. Here we are concerned with a father and a son who are members of one family. A son gets into the family by birth and resides with the parents. Can it be said that when a child is born and lives with the parents, he is a licensee within the meaning of S. 52 of the Act? Certainly not. A child and later a son or a daughter resides in the house with the parents not as a licensee or in any other legal capacity but only as members of the family. Nobody can claim a licence by birth." "In the present case, admittedly the father and children including the appellant were residing together in 1962 when the house was purchased. In 1962, the appellant was a major boy. It may be in course of time the appellant became a major and he is continuing to reside in the same premises. It may be that the father who was working at Bombay in Reserve Bank of India got a transfer to Bangalore and was staying there. It does not make the appellant a licensee or a person having any independent legal right to stay in the premises except as a member of the family viz. being the son of the plaintiff in this case. In my considered view, a person who is residing with the parents in the house cannot claim any legal character much less, the character of a licensee as defined in S. 52 of the Easements Act, but he is residing simpliciter as a member of the family and nothing more and nothing less." 10. The learned counsel for the defendant contended that this court had no jurisdiction to grant mandatory injunction at the interim stage, but it is of no substance. In this connection reference may be made to the decision of our High Court in the matter of Baban Narayan Landge v/s. Mahadu Bhikaji Tonchar & ors. Reported in 1989 (1) Bom. C.R. 669. In this connection reference may be made to the decision of our High Court in the matter of Baban Narayan Landge v/s. Mahadu Bhikaji Tonchar & ors. Reported in 1989 (1) Bom. C.R. 669. In that decision our High Court has ruled that the court has discretion to grant mandatory injunction in case the facts of the case require passing of the mandatory injection; but the discretion has to be rarely used. 11. In the present case, the defendant and his wife are torturing the plaintiff by their conduct and behavior and thereby made the plaintiff's life miserable at the fag-end of his life. The defendant being a son of the plaintiff, is expected to conduct himself as dutiful son. He and his wife are expected to behavior in such a way that they do not become an eye sore to the plaintiff and his daughters who reside with him. They did not mend themselves even after the plaintiff reported against them to the police in the year 2010. They continued to harasses him. Hence he was constrained to file the suit and claimed interim relief of mandatory injunction for removing the defendant from the suit premises. 12. Taking into consideration the facts and circumstances of the present case and the law laid down by our High Court the Trial Court is fully justified in passing the impugned order. It calls for no interference. Hence appeal stands dismissed. 13. In view of dismissal of Appeal from Order, nothing survives in the Civil Application No.163 of 2013. Same is dismissed as infructuos. 14. At the request of learned Counsel for the appellant, operation and implementation of this order is stayed for six weeks from today.