Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.18 OF 2019
CNR NO.MHCCO10000472019
IN
S.C. SUIT NO.2595 OF 2018
CNR NO.MHCCO10114752018
1. Mr.Zubair Yusuf Shah
Son of late Smt. Aishabi Yusuf Shah
Age 46 years, Indian Inhabitant, OccBusiness
Residing at B.I.T. Chawl No.13, Room No.47,
Belasis Road, Mumbai Central, Mumbai400 008
2. Mrs.Naseem Usman Rakhangi
Age 57 years, Indian Inhabitant, OccHousewife
Residing atB.D.D. Chawl No.17, Room No.54,
Worli, Mumbai400 018. Present AddressOswal
Paradise Bldg, No.4, 6th floor, Flat No.603, 'A'Wing,
Opp. Shivar Garden, Mira Road(E), Dist. Thane ..Plaintiffs
Versus
1. Smt. Farzana Usman Pometkar
Age 53 years, Indian Inhabitant, OccuHousewife
Residing atOswal Paradise, Bldg No.8, 7 th floor,
Flat No.701, 'A'wing, Opp/Shivar Garden,
Mira Road(E), DistThane.
2. The Trustee
Shri Bhagwandas Ramdasji Charitable
& Religious Trust
Indian Inhabitant
Address at 13166, Maqbool Building,
Ram Naik road, Near Lucky Hotel Hill
Road, Bandra(W), Mumbai400 050
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3. Mr.Iqbal WadiaDeveloper
M/s. Key Homses Realtors Pvt.Ltd.
Office atShri Ram Mandir, 13166, Maqbool building
Ram Naik Road, Near Lucky Hotel Hill Road,
Bandra(W), Mumbai400 050. ..Defendants
Ld. advocate H.S.Tafti for the plaintiffs.
Ld. advocate Damle for defendant no.1
Ld. advocate Miss Nasikwala for defendant no.3
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 20/09/2019
ORAL ORDER
1. The plaintiffs have tendered this notice of motion
interalia for restraining defendant no.3 from
transferring the rights of the premises i.e. 166, Hill
Road, Maqbool Building, Room No.6, Ground floor,
Bandra(West), Mumbai400 050( hereinafter referred
to as “suit premises”) in favour defendant no.1 and
restraining defendant nos.1 to 3 from creating any
third party interest with respect to the suit premises.
2. Heard.
3. In short the case of the plaintiff is that The suit
premises is residential joint family property standing
in the name of plaintiff no.1's grand father late
Dawood Yusuf Pometkar. After the death of
Dawood, the landlord Ram Mandir building Trust
transferred the rent receipt in the name of wife of
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deceased DawoodSmt.Rabiyabi Dawood Pomtekar in
the year 197879. Defendant no.2 transferred the
rent receipt in the name of defendant no.1 without
the consent of the plaintiffs. All three brothers of
plaintiff no.2 i.e. the sons of late Mrs.Rabiyabi
Dawood Pometkar are entitled to tenancy rights of
the suit premises. The suit premises is redeveloped
by defendant no.3. The redevelopment agreement
was entered into between defendant no.1 and
defendant no.3. The said agreement is illegal as the
consent of the plaintiffs is not taken. The suit
premises was tenanted property and their grand
parents have been the tenants and therefore they are
having the right in the suit premises. The sole
intention of defendant no.1 is to usurp the suit
premises from the plaintiffs and might have prepared
forged documents in which it might be mentioned
that the late grand father of plaintiff no.1, has
relinquished his rights towards the suit premises and
had transferred the tenancy in favour of defendant
No.1. The plaintiffs have issued notice dated
05/07/2017 to defendant nos.1 to 3 and called upon
the defendant nos.1 to 3 about their right over the
suit premises. The defendant no.1 has no right over
the suit premises and therefore the plaintiffs have
filed this suit with accompanying notice of motion.
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4. Defendant no.1 resisted the claim of the plaintiffs. It
is the contention of defendant no.1 that Smt.Rabiyabi
D.Pometkar acquired the tenancy rights in respect of
the suit premises in the year 1973. She was residing
with her family members including her husband, two
sons and one daughter i.e. plaintiff no.2. Plaintiff
no.2 after marriage started residing at her
matrimonial house. The other sonUsman got
married on 30/01/1983 with defendant no.1 and
started residing in the suit premises. She has the
documents to show the same. Sometime in the year
1991, Rabiyabi Pometkar expired and after her death
as per section 5(11)(c) of the Bombay Rent, Hotel
and Lodging Houses Rates Control Act, 1947,
husband of defendant no.1 became the tenant of the
suit premises but during his lifetime, the landlord of
the suit premises did not issue the rent receipt in his
name and as such stood still in the Rabiyabi
Pometkar. After the death of Usman in the year
2010, defendant no.1 was residing in the suit
premises and as such as per section 7(11)(d) of the
Maharashtra Rent Control Act, 1999, defendant no.1
became the tenant in respect of the suit premises
thereof. Thus, defendant no.2 started issuing the
receipt in the name of defendant no.1. During the
course of redevelopment, defendant nos.2 and 3 have
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rightly executed the agreement for providing
permanent alternate accommodation to defendant
No.1 and therefore by possession letter dated
20/12/2018 the defendant no.1 was put in
possession of permanent alternate accommodation
i.e. flat no.104, first floor, Awing, Marina, 166, Hill
Road, Bandra(West), Mumbai. The issuance of rent
receipt by defendant no.2 in the name of defendant
no.1 was within the knowledge of the plaintiffs. The
plaintiffs have no case and hence prayed for
dismissal of the notice of motion.
5. Defendant no.3 also opposed the notice of motion.
The contention of defendant no.3 is that suit
premises was tenanted premises and exclusively
governed under the provision of Maharashtra Rent
Control Act 1999 and this Court has no jurisdiction to
entertain and try this suit. The relief is hopelessly
time barred. Defendant no.1 being the tenant for a
long period and the tenancy of the suit premises
stood in her name, has already entered into the
registered agreement of allotment of permanent
alternate accommodation on 10th June 2011.
Defendant no.1 is not only the tenant but occupies
the suit premises and rent receipt was standing in
her name. The plaintiff in order to extort money
from defendant no.1, filed the present suit.
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Defendant no.1 is placed in possession of the flat
after the redevelopment and hence the plaintiff's suit
and notice of motion be rejected.
6. On the rival submissions of the parties, following
points arise for my determination and findings to it
are recorded for the reasons stated hereinafter:
POINTS
(i) Whether the plaintiffs have made out a prima
facie case ?
(ii) Whether the needle of balance of convenience
tilt in favour of plaintiffs ?
(iii) To whom the irreparable loss would be
caused?
(iv) What order?
FINDINGS
(i) In the negative.
(ii) In the negative.
(iii) To the defendant no.1
(iv) As per final order
REASONS
Point Nos. 1 to 3
7. At the outset it is the stand of defendant nos.1 and 3
that suit premises had been demolished and
defendant no.1 has been placed in possession of the
permanent alternate accommodation. The subject
matter of the suit appears to be the erstwhile room
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no.6 of Maqbool building. The said subject matter is
not in existence after execution of tripartite
agreement between defendant nos. 1 to 3. The
plaintiffs and defendant no.1 are not at dispute that
originally one Rabiyabi was the tenant of the suit
premises. She expired in the year 1991. Plaintiffs
claim to be the legal heirs of Rabiyabi and therefore,
claiming the tenancy rights. Defendant no.1 claims
that sometime in the year 1991, Rabiyabi Pometkar
expired and after her death as per section 5(11)(c) of
the Bombay Rent, Hotel and Lodging Houses Rates
Control Act, 1947, husband of defendant no.1
became the tenant of the suit premises but during his
lifetime, the landlord of the suit premises did not
issue the rent receipt in his name and as such stood
still in the name of Rabiyabi Pometkar. After the
death of husband of defendant no.1 in the year 2010,
defendant no.1 became occupant of the suit premises
as per section 7(11)(d) of the Maharashtra Rent
Control Act, 1999. At this juncture, this Court cannot
go into the legality of the tenancy rights of the
parties. Even otherwise, this Court has no
jurisdiction to determine the issue as to who is or
was tenant, therefore the only issue which remained
to be looked in is whether the plaintiffs are entitled
for the reliefs claimed by way of notice of motion.
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The plaintiffs are claiming the rights being legal heirs
of Rabiyabi but at the same time it would not be
proper to ignore that defendant no.2 is the landlord
and has executed tripartite agreement with
defendant no.1 and defendant no.3. Defendant no.2
accepted defendant no.1 as tenant and therefore
permanent alternate accommodation agreement was
executed on 10/06/2011. Thereafter the building
was demolished. The plaintiffs who claim to have
the interest in the suit premises did not approach at
the time of execution of the agreement in favour of
defendant no.1. The plaintiffs after a period of 6 to 7
years, of execution of the agreement, and after
demolition of the building raised their claim and
even when the possession was already handed over
to defendant no.1 by defendant no.3. The conduct of
the plaintiffs in this regard speaks in volume. Prima
facie the material shows that defendant no.1 has
been placed in possession in lieu of tripartite
agreement executed between defendant nos.1 to 3
inter se. So the interim relief of restraining
defendant no.3 from transferring the rights of the
suit premises is infructuous. There is no material
from the side of the plaintiffs to demonstrate their
right, title or interest and therefore plaintiffs have no
prima facie case in their favour. Even there is no
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explanation from the plaintiffs as to why they did not
raise their claim when the old building was
demolished.
8. The material produced on record suggest that
defendant no.1 was in possession of permanent
alternate accommodation in lieu of the suit premises.
Further defendant no.1 has already entered into an
agreement dated 10/06/2011 to which landlord had
already accepted her as a tenant and the same was
not objected by the plaintiffs. Even, at this stage, the
suit premises i.e. room no.6 is not in existence,
therefore the needle of balance of convenience does
not tilt in their favour.
9. The defendant no.1 is in possession of permanent
alternate accommodation in lieu of the suit premises.
No material was produced by the plaintiffs to show
their claim over the suit premises or whether the
landlord accepted them as tenants of the suit
premises. Therefore, the plaintiffs would not suffer
irreparable loss. On the contrary, the defendant no.1
who was in long standing possession of the suit
premises and subsequently of the premises after
redevelopment would suffer heavy irreparable loss if
restrained by order of injunction from dealing with
property. Hence, I am inclined to answer point
nos.1 to 3 in the negative.
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Point No.4
10. In view of the forgoing discussion and findings
to point nos.1 to 3, notice of motion needs no
consideration. Hence, in view of the above
discussion, it is expedient to pass following order:
ORDER
1. Notice of Motion No. 18/19 is dismissed.
2. Cost in the cause.
3. Notice of Motion is disposed of accordingly
20/09/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 20/09/2019
Transcribed on : 27/09/2019
Signed on : 10/10/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
04/10/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
20/09/2019
Judgment and order signed by P.O. 10/10/2019
Judgment/order uploaded on 10/10/2019
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