Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 16/20 (LCS No.2521/19)
MHCC010000592020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.16 OF 2020
IN
LONG CAUSE SUIT No.2521/2019
Dhammadas s/o. Shivram Bhalerao
and 4 Ors. … Plaintiffs
- Versus -
1] Municipal Corporation of
Greater Mumbai
2] The Administrative Officer
3] Smt. Kalpana Shripat Pawar ... Defendants
Appearance :-
Ms. Chavan h/f. Mr. Gelye, Advocates for plaintiffs.
Mr. Om Suryavanshi, Advocate for defendants No.1 and 2.
Mr. R. J. Panchal, Advocate for defendant No.3.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 23/06/2023.
O R D E R
. This is suit for declaration that transfer of suit tenements
dated 28/1/2016 be declared as null, illegal, bad-in-law and void,
cancellation of transfer of said tenancy order and for perpetual
-- 1 of 9 --
2 N/M 16/20 (LCS No.2521/19)
injunction restraining defendant No.3 from handing over possession of
suit structure and not to dispose of third party interest in respect of
structure bearing hut No.B-7, New Municipal Chawl, transit camp,
Chembur, Mumbai (in short suit premises).
2] It is stated that suit premises is owned by defendant/B.M.C.
and the plaintiffs are in its use, occupation and possession. Defendant
No.3 is licensee of the plaintiff’s mother, who is in possession of ground
floor since 2003 as a licensee. It is further stated that the plaintiffs’
father Mr. Shivram Bhalerao was tenant of suit premises who died in
2000 leaving behind him legal heirs and late mother Smt. Parvati
Bhalerao. It is further stated that the plaintiffs came to know under the
R.T.I. that tenancy of suit premises has been transferred in the name of
defendant No.3. The plaintiffs are residing in suit premises since 1976
and they are in its possession. The plaintiffs are having various
documents showing their possession.
3] It is further stated that the plaintiffs never applied to the
Corporation for transfer of tenancy and rent receipt. Somewhere in
2003 the plaintiffs’ mother allowed defendant No.3 to reside in suit
premises as a licensee as she had no place to reside in Mumbai. It is
further stated that the plaintiffs are not knowing for how much years
suit premises were given to defendant No.3 as a licensee. It is further
stated that after the death of mother of the plaintiffs they requested to
vacate suit premises however, she refused to vacate and told that
tenancy has been transferred in her name and paid amount of
Rs.70,000/-. The plaintiffs came to know that on the basis of fake and
fabricated documents i.e. affidavit, Power of Attorney and Agreement
-- 2 of 9 --
3 N/M 16/20 (LCS No.2521/19)
for Sale etc. Therefore, the plaintiffs filed this suit and taken out Notice
of Motion.
4] Defendants No.1 and 2/B.M.C. opposed Notice of Motion
by filing reply below exhibit-5. At the outset, it is stated that as per
record of Administrative Officer, M/W Department suit premises is
standing in the name of late Mr. Shivram Bhalerao since 1976 who died
in 2000 and after his demise Smt. Parvati Bhalerao was in possession of
suit premises. It is further stated that then by Agreement for Sale and
affidavit dated 21/2/2003 defendant No.3 made application dated
17/5/2012 for transfer of suit premises. It is further stated that the
Corporation has transferred tenancy after following due process of law.
At the time of inspection it is noticed that defendant No.3 is in
possession of suit premises. It is further stated that the Corporation has
transferred tenancy by following due process of law and as per the
guidelines and policy of the Corporation. Therefore, the plaintiffs are
not entitled for any relief.
5] Defendant No.3 opposed Notice of Motion by filing rely. It
is stated that suit is barred by the law of limitation. The plaintiffs have
not come to the Court with clean hands and suppressed material facts.
It is further stated that Written Statement be considered as reply to
Notice of Motion. The plaintiffs have filed this suit challenging transfer
of tenancy on the basis of documents executed in 2003, therefore, suit
is barred by the law of limitation. It is further stated that defendant
No.3 is in possession of suit premises on the basis of Agreement for
Sale, and General Power of Attorney in which the plaintiffs No.1 and 2
and husband of the plaintiff No.4 are the witnesses. It is further stated
that defendant No.4 is in possession and occupation of notice structure.
-- 3 of 9 --
4 N/M 16/20 (LCS No.2521/19)
The Corporation has transferred tenancy of suit premises in her favour
by following due process of law and she is in its possession as a absolute
owner. It is further stated that late Smt. Parvatibai sold suit premises on
21/2/2003 to defendant No.3 for a sum of Rs.2,17,000/- by executing
Agreement for Sale and General Power of Attorney for which the
plaintiffs are the parties and in spite of that they have malafidely filed
this suit. Therefore, the plaintiffs are not entitled for any relief. Hence
Notice of Motion deserves to be dismissed.
6] Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiffs have made out
prima facie case ? . . . Yes.
2) Whether balance of convenience lies
in favour of plaintiffs ? . . . Yes.
3) Whether plaintiffs would suffer
irreparable loss if temporary
injunction is refused ? . . . Yes.
4) What order ? . . . Notice of Motion is
made absolute.
- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
7] Learned advocate for the plaintiffs submitted that the
plaintiff No.1 is the brother of the plaintiffs No.2 to 5. Father of the
-- 4 of 9 --
5 N/M 16/20 (LCS No.2521/19)
plaintiffs was a tenant of suit premises and after his demise their
mother was residing there. It is further submitted that mother of the
plaintiffs permitted defendant No.3 to reside as a licensee on payment
of Rs.70,000/- as a deposit. However, defendant No.3 on the basis of
fake and fabricated documents got transferred tenancy of suit premises.
The plaintiffs are in possession of suit premises since last 35 years.
However, on the basis of transfer of tenancy defendant No.3 is
obstructing their possession. The plaintiffs requested defendant No.3 to
vacate suit premises however, she refused. Therefore, the plaintiffs have
filed this suit and taken out Notice of Motion restraining defendant
No.3 from acting on the basis of fake and fabricated documents,
disposing suit premises or creating any third party interest and/or
dispossessing the plaintiffs from suit premises.
8] Learned advocate for defendant No.3 submitted that the
plaintiffs have challenged documents executed in 2003, therefore, suit
is barred by the limitation. The plaintiffs have not come to the Court
with clean hands. It is further submitted that after the death of the
original tenant Mr. Shivram Bhalerao mother of the plaintiffs was in
possession of suit premises and by Agreement for Sale dated 21/2/2003
the Corporation transferred all the tenancy rights in favour of defendant
No.3. Learned advocate for defendant No.3 pointed out that the
plaintiffs No.1, 2 and the husband of plaintiff No.4 are the witnesses to
said Agreement for Sale. It is further submitted that defendant No.3
paid consideration of Rs.2,17,000/- to the plaintiffs. However,
malafidely the plaintiffs have filed this suit.
9] The plaintiffs have taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C.P.C. Plaintiffs
-- 5 of 9 --
6 N/M 16/20 (LCS No.2521/19)
are seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a
prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
10] The plaintiffs filed this suit for declaration that Sale
Agreement and affidavit dated 21/2/2003 be declared as null and void
and for cancellation of tenancy in favour of defendant No.3 and taken
out Notice of Motion. The plaintiffs are claiming possession over suit
premises on the basis that their father was resident of suit premises and
after his demise their mother was residing there and she allowed
defendant No.3 to reside as a licensee in suit premises. This shows that
defendant No.3 was put in possession of suit premises as a licensee.
Learned advocate for defendant No.3 submitted that the plaintiff and
their mother executed Agreement to Sale and affidavit dated
21/2/2003 and assigned all their rights in suit premises in favour of
defendant No.3 for consideration of Rs.2,17,000/- and defendant No.3
has been put in possession. It is contention of defendant/B.M.C. that it
had received application of defendant No.3 for transfer of suit premises
in her name. The Corporation has verified site on 9/4/2013 and noticed
that defendant No.3 is found in occupation of ground floor room. It is
further contention of the Corporation that after joint inspection of suit
premises defendant No.3 was found in possession and thereafter
-- 6 of 9 --
7 N/M 16/20 (LCS No.2521/19)
following due process and circular of the Corporation tenancy has been
transferred in the name of defendant No.3 on 28/1/2016. Defendant/
B.M.C. produced on record application for transfer of tenancy of suit
premises in favour of defendant No.3. It appears that Administrative
Officer, M/W Department allowed application of defendant No.3 and,
accordingly, tenancy has been transferred. On perusal of report
prepared by Rent Supervisor of the B.M.C. it is clear that defendant
No.3 was found in possession of suit premises. Thus, I hold that the
plaintiffs have failed to prove their possession over suit premises.
11] The plaintiffs have further prayed that defendant No.3 be
restrained from creating any third party interest and transferring of suit
premises in favour of third party. The plaintiffs have challenged order of
transfer of tenancy. It is alleged by the plaintiffs that on the basis of
Agreement to Sale and General Power of Attorney defendant No.3 got
transferred tenancy of suit premises in her favour. Defendant No.3
opposed Notice of Motion on the ground that suit challenging
Agreement to Sale and affidavit executed in 2003 is barred by the law
of limitation. In the facts and circumstances of the case, whether the
defendant No.3 got transferred tenancy in her favour on the basis of
fake and fabricated documents and whether suit is barred by law can be
decided after recording evidence of the parties. One of the objects of
temporary injunction is to maintain position as on today i.e. on the date
of filing of suit. If temporary injunction in respect of creating third party
interest is not granted the possibility of creating third party interest by
defendant No.3 cannot be ruled out and it will amount to multiplicity of
proceedings. I, therefore, hold that the plaintiffs have made out
prima
facie case restraining defendant No.3 from creating third party interest
in respect of suit premises till decision of suit so also for grant of
-- 7 of 9 --
8 N/M 16/20 (LCS No.2521/19)
injunction restraining defendant No.3 from creating third party interest.
Balance of convenience tilts in favour of the plaintiffs and if temporary
injunction is not granted they will suffer irreparable loss or injury
amounting to multiplicity of proceedings. Hence points No.1 to 3 are
answered in the affirmative and in answer to point No.4 following order
is passed :-
O R D E R
1] Notice of Motion No.16/2020 is hereby made absolute in terms of
prayer clause (b).
2] Defendant No.3 hereby temporarily restrained from creating third
party interest or disposing of suit structure till decision of the suit.
3] Rest of the prayers are rejected.
Date : 23/06/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
02/08/2023 05:25 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 23/06/2023
ORDER Typed on 01/08/2023
ORDER signed by P.O. on 02/08/2023
ORDER uploaded on 02/08/2023
-- 8 of 9 --
9 N/M 16/20 (LCS No.2521/19)
-- 9 of 9 --