Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.156 OF 2020
CNR:MHCC010003992020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.156 OF 2020
IN
LONG CAUSE SUIT NO.1124 OF 2019
Gopal Shankar Vichare .. Plaintiff
V/s.
1. Laxmi Vishwanath Vichare & Ors. .. Defendants
Appearance:
Adv. Swapnesh Salvi h/f Adv. Susan Abraham for plaintiff.
Adv. Smt. Vidya Vyavhare present for MCGM/defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 02.07.2022
ORDER
1 The plaintiff has taken out this Notice of Motion for
grant of interim relief against the defendant No.1 to 4 as well as
the defendant No.5 till disposal of suit.
2 The plaintiff has pleaded that he is a protected tenant
of Room no.4, building No.3, Arya Nagar, Tulsi Wadi,
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Mumbai:4000 34 being son of principal tenant Shankar Ramji
Vichare which is referred to hereinafter as 'suit premises'. The
defendant No.1 being widow of his brother is also a tenant and at
present residing in the suit premises. After his father, the tenancy
was transferred in the name of his widow Parvati Bai i.e. the
mother of plaintiff with the consent of all legal heirs. The plaintiff
and defendants lived together in the suit premises for a long time.
During life time of his mother, he used to pay the rent of suit
premises and he was looking after his mother also. Due to
shortage of space, he left the suit premises in the year 1977 as a
family arrangement. However, he did not give consent nor gained
benefit nor has he relinquished his right as one of the legal heirs
for suit premises.
3 His mother expired on dt.3/8/1989. The plaintiff, his
elder brother Vishwanath Vichare and defendant Nos.1 to 4 as
only Class II legal heirs to succeed the estate. His brother
Vishwnanath expired on 14/5/1990 leaving behind him his widow
i.e. defendant No.1. The plaintiff further averred that as it reflects
from the document dt.15/11/2010 drawn by defendant No.5
having reference number ACD/720899716/AOE and recorded as
numberAC/EST/17042/DEP4/1/2011, plaintiff alongwith his
mother now deceased, brother now deceased and defendant No1.
to 4 were shown as occupants of the premises. However,
defendant No.1, without his knowledge or consent illegally got the
tenancy of suit premises transferred in her name on dt.4/1/2013.
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4 The act of transfer of tenancy is challenged by the
plaintiff in the suit on the ground that he is also one of the legal
heirs of original/principal tenant, but without obtaining his
consent, the tenancy has been transferred by defendant No.5 in
favour of defendant No.1. Further, defendant No.5 has not
obtained the approval/sanction from Zonal DMC prior to said
transfer. It is said that the defendant No.1 has got the suit
premises transferred in her name by deceit, by lying on oath and
without obtaining no objection from the legal heirs including
plaintiff. There is reasonable apprehension in the mind of the
plaintiff that the defendant No.1 to 4 in order to avoid the suit
may transfer tenancy again or induct third party into the suit
premises. If this happens, he will suffer irreparable loss and injury
and said prejudice can not be compensated in terms of money.
The plaintiff has made out prima facie case and balance of
convenience also lies in his favour. Hence, in the interest of justice
and to avoid multiplicity of litigation, the defendant No.1 to 4 be
restrained from transferring or parting with possession or creating
third party rights in respect of suit premises and defendant No.5 be
restrained from transferring the rent receipt of the suit premises
pending the hearing and final disposal of the suit.
5 The defendant No.1 to 4 failed to file reply to the
Notice of Motion. They have filed their written statement on
record. The defendant No.5 has replied and opposed the motion.
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6 The defendant No.5/Corporation made contention that
the suit premises stood in the name of Smt. Parvati Shankar
Vichare. As per the record of Asstt. Commissioner(Estate
Department), names of occupants were shown which were
recorded in the tenancy agreement. Shri.Vishwanath Vichare,
plaintiff, defendants were residing in the said premises alongwith
principal tenant. The defendant No.1 Laxmi Vichare i.e. the
daughter in law of principal tenant had applied for the transfer of
said room in her favour vide application received on
dt.20/8/2010. She submitted requisite documents including
undertaking and indemnity bond indemnifying the corporation
from any costs, things, damages, suit, litigation and any action of
whatsoever nature towards the transfer in the future.
7 It is further contended that subject to confirmation of
the possession of the applicant at site, the proposal of transfer of
said room in favour of the applicant will be proceeded further in
accordance with the rules, regulations, circulars of the Estate
Department and prevailing policies to that effect after recovering
the arrears of rents, adhoc deposits, if any and transfer fee etc and
after obtaining prior sanction from the competent authority.
However, presently plaintiff is not residing in the suit premises.
The defendant No.1 Laxmbai has been residing there. The
defendant No.5 MCGM will follow due process of law as and when
action will be taken against illegal occupancy of the suit premises.
Plaintiff has failed to make out prima facie case and the suit is not
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maintainable. Hence, Notice of Motion may be dismissed with
costs.
8 From the facts and circumstances of the case, and material
placed on record, following points arose for my determination and
I have given my findings thereon with reasons as below.
Sr.
No.
POINTS FINDINGS.
1 Whether prima facie case lies in
favour of plaintiff ? Partly proved.
2
Whether balance of convenience
lies in favour of plaintiff ? Partly proved.
3
Whether plaintiff will suffer
irreparable loss, if Notice of
Motion is not allowed ?
Partly proved.
4 What Order ? Notice of Motion is
partly made
absolute.
REASONS
AS TO POINT NOS.1 TO 3.
9 All these points are interlinked with each other, hence
for the sake of convenience, all are discussed simultaneously.
10 Heard Ld. Adv. for plaintiff and Ld. Adv. for defendant
No.5 at length. The defendant No.1 remained present. However,
her Ld. Adv. was absent. Hence, he could not be heard. Perused
all the documents produced by both sides alongwith affidavits.
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11 The plaintiff has produced various documents with the
suit plaint including the death certificate of principal tenant as
well as deceased Parvatibai and deceased Vishwanath. He also
produced the correspondences made by him with the defendant
No.5 as well as different departments for getting the details
regarding transfer of tenancy and also the documents received by
him under Right to Information Act. He also produced the
application moved by the defendant No.1 to defendant No.5 for
transfer of tenancy and all relevant applications as well as
indemnity bond filed by her alongwith said application and the
letter issued by Municipal Corporation taking cognizance of the
complaint moved by the plaintiff regarding transfer of tenancy
dt.25/07/2018.
12 The defendant No.5 has produced the copy of tenancy
agreement wherein the names of occupants are shown in said
tenancy agreement and the copies of application for transfer of
tenancy agreement and other documents produced by defendant
No.1.
13 Here is the case of transfer of tenancy of which the
Corporation is the landlord. The record shows that the suit
premises was originally tenanted by the father of plaintiff deceased
Shankar Ramji Vichare and later on, the tenancy was transferred
in the name of plaintiff's mother Parvatibai. The record further
shows that vide tenancy agreement, the plaintiff as well as
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defendants, plaintiff's deceased mother and deceased brother are
shown as the legal heirs of deceased. In the present suit, plaintiff
has challenged the alleged transfer of tenancy by defendant No.5
in the name of defendant No.1 who is the daughter in law of
deceased principal tenant. In order to establish the existence of
prima facie case, it is for the plaintiff to establish that he is the
legal heir of principal tenant and the tenancy has been transferred
by playing fraud in favour of defendant No.1 without obtaining his
no objection or without following due process of law.
14 The Adv. for plaintiff has advanced argument and
categorically stated that the plaintiff is one of the legal heirs of the
deceased original tenant Shankar Vichare and he lived together
with the original tenant and defendants in the suit premises for a
considerably long period. However, he left the suit premises in
the year 1977 as a family arrangement due to paucity of space for
residence but in no case, he relinquished his right as occupant of
the suit premises. The defendant No.5 has categorically submitted
that they will follow due procedure of law while transferring the
tenancy in the name of the applicant. They have also pointed out
that the plaintiff is not residing in the suit premises and the
resident of the suit premises is defendant No.1. It is also pointed
out that the defendant No.1 alongwith application for transfer of
tenancy in her name had produced various documents including
no objection of other legal heirs and indemnity bond.
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15 As it transpires from the documents produced by the
plaintiff as well as defendant i.e. the tenancy agreement registered
under No.A3030 dt.28/7/1969 that the plaintiff alongwith the
defendant No.1 to 4 is the legal heir of the Estate of deceased
principal tenant Shankar Vichare. Parvatibai Vichare and
Vishwanath Vichare are already expired and defendant No.1 is the
widow of deceased Vishwanath Vichare. As such, she is also one
of the legal heirs and occupant of the suit premises. It is also
undisputed that defendant No.1 is presently residing in the suit
premises and it is in her lawful possession. At the same time, it is
not disputed that since the year 1977, the plaintiff is not residing
in the suit premises. However, there is no document on record to
show that he has permanently left the suit premises or had
relinquished his occupancy. The tenancy agreement shows the
name plaintiff as one of the occupants and legal heirs. In such
circumstances, as per the provisions of law and the police for
transfer of tenancy, it was incumbent on the defendant No.5 to get
all necessary documents from the defendant No.1 including the no
objection of all occupants/legal heirs. Here, the defendant No.5
has produced the copy of transfer application moved by defendant
No.1 which was received by them on dt.20/8/2010. It reveals
that alongwith said application, the defendant No.1 produced her
election card, death certificate of deceased Parvatibai and
Vishwanath Vichare, the no objection/consent given by defendant
No.2 to 4 dt.6/7/2010 and the indemnity bond dt.6/7/2010. As it
transpires, the plaintiff has not given no objection for transfer of
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tenancy and as per the policy, it was for the defendant No.1 to file
the no objection of plaintiff also being one of the legal heirs. The
contents of indemnity bond given by defendant No.1 shows that
she did not produce the no objection of plaintiff as plaintiff does
not have fair terms with her. However, she indemnified the
Corporation for any suit action or objection taken to her tenancy
by the plaintiff or any other person.
16 As such, it is crystal clear that the relations in between
plaintiff and defendant No.1 were strained and due to which the
plaintiff did not give no objection for transfer of tenancy in favour
of defendant No.1. The defendant No.5 is a neutral party who is
duty bound to transfer the tenancy to the legitimate claimant on
the basis of legal documents produced before Ity that . It has to
consider the no objections of parties as well as the contents of
indemity bond. Said bond is selft sufficient to show that even if
the tenancy is transferred in the name of the applicant, the
applicant will be liable and responsible for any claim, right, suit or
action by any person in respect of the transfer tenancy and the
transfer will always be the subject to such objections. Said
objections are to be decided by the Civil Court. Here, the plaintiff
has rightly chosen the forum objecting the transfer of tenancy. He
has given objection for said transfer and in said circumstances, the
tenancy right of plaintiff over the suit premises is necessary to be
determined. Here, the defendant No.5 also made a statement that
they will follow due process of law while transferring the tenancy
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in respect of suit premises. It also transpires from the record that
after consideration of all documents produced by the defendant, it
was for the defendant No.5 to obtain sanction from competent
authority for transfer of tenancy. The same has not been yet done
by the defendants. The defendant No.5 has assured in the reply
that subject to confirmation of the possession of the applicant at
the site, the proposal of the transfer of the suit premises in favour
of applicant will be proceeded further in accordance with the
rules, regulations and circulars of Estate Department and after
obtaining prior sanction from the competent authority.
17 To my mind, it is a fit case where the interim
injunction can be granted partly in favour of the plaintiff as the
defendant No.1 is in possession of suit premises and defendant
No.2 to 4 have already given their no objection to transfer of
tenancy in favour of defendant No.1. The plaintiff has challenged
the entire process since from the beginning. Obviously, his
possession over the suit premises is a disputed issue and the same
needs determination on merit. In such circumstances, if the
injunction is not granted, the defendant No.1 to 4 may attempt to
alienate the suit premises or may part with the possession over the
same in order to avoid the legitimate claim of plaintiff. If such
thing happens or third party right has been created by defendant
No.1 to 4, the plaintiff will definitely suffer irreparable loss. the
defendant No.5 has already made statement that they will follow
due process of law while transferring the tenancy and I do not find
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any collusive act on the part of defendant No.5. Even the plaintiff
has not submitted as to against whom he is claiming injunction by
way of prayer clause(b). Said prayer appears vague. So far as the
prayer clause(a) is concerned, I have already held that on the basis
of tenancy agreement of dt.28/07/1969, the plaintiff has
established that he is the occupant of the suit premises. The prima
facie case lies in his favour. Hence, it is just to grant interim relief
in his favour in terms of prayer clause(a).
18 Hence, I hold that the plaintiff has established all three
necessary ingredients required for grant of temporary injunction in
respect of prayer clause(a). Hence, I have answered point Nos.1 to
3 as partly proved.
AS TO POINT NO.4.
19 In view of the part affirmative findings as to point
Nos.1 to 3, I hold that the Notice of Motion deserves to be allowed
partly.
20 Resultantly, I proceed to pass following order.
ORDER
1 Notice of motion no.156/2020 is partly made absolute
in terms of prayer clause(a) only.
2 The defendant no.1 to 4 are hereby restrained by way
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of temporary injunction from transferring, parting with possession
or creating third party rights in respect of the suit premises till
final disposal of this suit.
3 Notice of motion no.156/2020 is disposed off
accordingly.
4 Authenticated copy of todays roznama be given to the
parties if requested.
Date:02/07/2022.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :02/07/2022.
Typed on :12/07/2022.
Signed on :12/07/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
12/07/2022. 05.55 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
02/07/2022.
JUDGMENT/ORDER signed by
P.O.on
12/07/2022.
JUDGMENT/ORDER uploaded on 12/07/2022.
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