Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.143/2019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 143 OF 2019
IN
S.C. SUIT No. 2892 OF 2018
Arvind Jagannath Jadhav ...Plaintiff.
V/s.
1. M/s. Universal Construction
Company & Ors. … Defendants.
Appearance
Advocate Mr. Manish Rai for the plaintiff.
Advocate Ms. Hemali Bane I/b. Ajay Law Associates for defendant
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 17th December, 2022
O R D E R
By this notice of motion, the plaintiff prays for following
reliefs
a) That this Hon'ble Court be pleased to allow the present notice of motion.
b) Pending hearing and and final disposal of this Suit this Hon'ble Court be
pleased to direct defendant No.1 to deposit the rent before this Hon'ble Court;
c) Pending the hearing and final disposal of this Suit this Hon'ble Court be direct
to defendand Nos. 2 to 6 not to accept the monthly rent from defendant No.1
and deposit the rent taken earlier before this Hon'ble Court.
d) For adinterim reliefs in theres of prayer clause (a) & (c) above.
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2. The motion is opposed by defendant Nos.2, 3, 5 and 6 by
their affidavit in reply. No say filed by defendant Nos.1 and 4.
3. Heard learned Advocate for the plaintiff. Though there is
no argument of the defendants, learned Advocate for defendant Nos.2,
3, 5, 6 adopted his reply as his argument.
4. It is the contention of the plaintiff that defendant No.1 is
the construction company which is in process of development of the
property situated at Mazgaon Mathar Pakhadi Road, Ujwala
Niwas/Aadhar Chawl, Chawl No.102/104, Room No.10, Ground Floor,
Mumbai 400 010. Defendant No.2 is the step mother of the plaintiff
who is second wife of the plaintiff's father late Jagannath Jadhav.
Defendant Nos. 3 to 6 are children of late Jagannath. The plaintiff is
son of late Jagannath from first wife Sulochana. Late Jagannath had
two children from his first wife, out of which the plaintiff is the son and
Chhaya Mane is the daughter. Defendant No.1 has taken possession of
the suit property for redevelopment and they are giving rent to
defendant Nos.2 to 6. In spite of communication made by the plaintiff
calling upon defendant No.1 to provide details of amount paid to
defendant Nos.2 to 6, they failed to provide it. Defendant No.2 has
filed Testamentary Petition before the Hon'ble High Court for obtaining
probate of Will of late Jagannath Jadhav. Defendant Nos. 3 to 6 along
with the plaintiff and his sister Chhaya are the legal heirs of late
Jagannath Jadhav. The plaintiff has opposed the Petition but same is
still pending. In spite of request, defendant No.1 is not furnishing the
details about the payments made to defendant Nos.2 to 6. Therefore,
the plaintiff has filed this suit seeking declaration that defendant No.1
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has no right to pay such rent to defendant Nos.2 to 6, pending the
testamentary petition. The plaintiff also sought relief of injunction
restraining defendant No.1 from making payment of rent to defendant
Nos.2 to 6
5. It is the contention of defendant Nos.2, 3, 5, 6 that the
motion is false and frivolous, there is suppression of material facts. It is
their contention that late Jagannath was working in Morarji Mills and
used to stay at Mazgaon Mathar Pakhadi Road, Ujwala Niwas/Aadhar
Chawl, Chal No.102/104, Room No.10, Ground Floor, Mumbai 400
010. The defendants admit that from the first wife Jagannath had two
children i.e. plaintiff and Mrs. Chhaya Mane. The plaintiff's mother
Sulochana had expired in the year 1962 and after her death Jagannath
married to defendant No.2. He settled the plaintiff and his sister. The
plaintiff got married in the year 1982 and Chhaya got married in 1972.
Defendant No.2 is legally wedded wife of late Jagannath. Defendant
Nos.3 to 6 are the legitimate children of defenant No.2 and late
Jagannath. It is further contention of the present defendants that
Jagannath has executed Will in favour of defendant Nos.2, 3, 5 and 6.
In the Will it is stated that the plaintiff has never taken care of
Jagannath and he has already purchased the premises at BDD Chawl
Sewree and shop at Kamothe, Navi Mumbai. Defendant No.1 is paying
rent to defendant No.2. Defendant No.2 has no source of income.
Defendant No.2 has filed Testamentary Petition No.163/2018 for
obtaining probate of the said Will. The plaintiff and his sister Chhaya
has objected the said petition. Due to her old age and for want of
source of income, it is difficult for defendant No.2 to stay at her village
at the age of 72 years. Therefore, it is necessary to handover the new
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premises to defendant No.2. The Will is also executed in her favour.
With these contentions the present defendants have prayed to dismiss
the motion.
6. After considering the rival pleadings, it is noticed that the
present suit is for declaration that defendant Nos.2 to 6 have no right to
claim monthly rent from the builder/developerdefendant No.1. It is an
admitted fact that the suit property is under redevelopment. It is also
not disputed that defendant No.1 is paying rent to defendant Nos.2, 3, 5
and 6. No copy of agreement for alternate accommodation or rent in
lieu of alternate accommodation is produced on record. From the facts
and circumstances, it appears that the plaintiff was not in occupation of
old premises which has gone into redevelopment. No pleadings are
found in the plaint to show whether the plaintiff occupied the premises
in past and what rights the plaintiff claims in suit property. It appears
that the plaintiff wants to agitate that the suit property was owned by
his father Jagannath and he has share therein. Considering the case of
the defendants, it appears that Jagannath had executed Will in favour
of the defendants on 10.11.2014, wherein it is stated that the plaintiff is
excluded from any right in the suit premises. Prima facie it appears that
the defendants have strong claim in respect of the suit premises. The
plaintiff by this motion prays to direct defendant No.1 to deposit the
rent of the premises in the Court. Injunction is also prayed that
defendant Nos. 2 to 6 are entitled to receive such rent from defendant
No.1. The record prima facie shows that the plaintiff has been excluded
from the right in the suit premises. In the main prayer clause there is
no prayer as aforesaid as to the recovery of amount of rent therefore, no
purpose will be served by issuing direction to defendant No.1 to deposit
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the rent in this Court. The plaint shows that the plaintiff has not
claimed any right or declaration in respect of new premises which will
be alloted by defendant No.1, instead of that, relief is sought only in
respect of amount of rent. Substantial relief is not prayed by the
plaintiff. Under these circumstances, I am of the view that there is no
prima facie case in favour of the plaintiff. Balance of convenience lies
in favour of defendant Nos. 2 to 6. No irreparable loss will be caused to
the plaintiff if injunction is refused. Hence, Notice of motion is liable to
be dismissed. In result, I pass following Order:
ORDER
1. The Notice of Motion No. 143 of 2019 is dismissed
2. Costs shall follow the event.
Date : 17.12.2022 (Rajesh A. Sasne)
Dictated on : 17/12/2022. Judge, C.R.No.62,
transcribed on : 22/12/2022. City Civil Court,
Signed on : 23 /12/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
23.12.2022 at 1120 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 17/12/2022
Order signed by P.O. on 22/12/2022
Order uploaded on 23/12/2022
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