Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment 231/2019
MHCC010004212019
Presented on : 10-01-2019
Registered on : 23-01-2019
Decided on : 03-07-2023
Duration : 4 Y. 5 M. 24 D.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
S.C. SUIT No. 231 OF 2019
1. Mrs. Poornima W/o. Machindra }
Sonawane, }
aged 48 years, Occ: Service, }
Indian inhabitant }
2. Mrs. Shakuntala Gorakh Bhise, }
aged about 66 years, Occ: Housewife, }
also Indian inhabitant, both residing }
at Room No.3, House No.277, Gulam }
Mohammed Chawl, Situated at }
Dr. Ambedkar Chowk, Takia Ward, }
Kurla (W), Mumbai 400 070 } ...Plaintiffs
Vs.
1. Mr. Suresh S/o Gorakh Bhise, }
aged about 49 years, Occ: Service, }
Indian inhabitant. }
2. Mrs. Yogita W/o. Suresh Bhise, }
aged about 35 years, Occ: Service, }
Indian inhabitant, residing at Upper }
/First Floor of Room No.3, House }
No.277, Gulam Mohammed Chawl, }
Situated at Dr. Ambedkar Chowk, }
Takia Ward, Kurla (W), }
Mumbai 400 070. } ...Defendants
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Appearance
Learned Advocate Mr. I.R. Qureshi for the plaintiffs.
Ex-parte against the defendants.
CORAM : HHJ V. M. Pathade
(C.R.NO.62)
Date : 3rd July, 2023
JUDGMENT
This is a suit for removal of the defendants from the suit
premises.
2. The plaintiffs’ case in brief is that plaintiff No.1 is a
daughter of plaintiff No.2. Defendant No.1 is a son of plaintiff No.2 and
brother of plaintiff No.1. Defendant No.2 is the wife of defendant No.1.
Plaintiff No.1 is the monthly tenant of the residential premises namely
room No.3 consisting of ground floor plus upper floor of House No.277,
Gulam Mohammed chawl, Dr. Ambedkar Chowk, Takiya Ward, Kurla
(W), Mumbai 400 070. It is also stated that plaintiff No.2 was the
previous tenant of the said room No.3. Initially, the plaintiffs and
defendant No.1 were residing jointly in the said room No.3, since they
were the family members. Plaintiff No.2 after receiving consideration
amount for the transfer of tenancy rights from plaintiff No.1,
transferred tenancy right in respect of the said room No.3 in favour of
plaintiff No.1 by executing necessary documents. The concerned
landlord accordingly recognized and treated the plaintiff No.1 as a
tenant of the said room and issued rent receipts in her name since,
February, 2016. On 24.09.2018 plaintiff No.2 further executed an
affidavit thereby affirming the transfer of tenancy rights in respect of
the said room No.3 in favour of plaintiff No.1.
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3. It is further the case of the plaintiffs that on the request of
defendant No.1, she allowed the defendants to reside in the upper
floor/first floor portion of the said room No.3 on the condition that
defendant No.1 would make arrangement for accommodation for
himself and his family members including defendant No.2 i.e his wife
and children, as early as possible. It is further stated that the defendants
have no independent right, title or interest in the said premises.
Plaintiff No.1 holds electricity connection, Ration card, Aadhar card on
the address of the said room.
4. It is also averred that the defendants are causing the
plaintiffs constant harassment in respect to which several police
complaints have been lodged by plaintiff No.1. Plaintiff No.1 therefore,
withdrew the permission and called upon defendant No.1 to remove
himself along with his family members from the suit premises by issuing
him a notice dated 21.08.2018 sent by her Advocate Mr. I. R. Qureshi.
The defendants however, in spite of receipt of the said notice and the
oral request made by the plaintiffs, neglected to remove themselves
from the suit premises but started causing harassment and torture to
the plaintiffs. It is further alleged that defendant No.1 without
informing plaintiff No.2 and without her consent attempted to
fraudulently get transferred the electricity connection of the suit
premises in his name and after receiving a letter from the concerned
electricity supply authority, the plaintiffs had raised strong objection as
a result of which the concerned authority rejected the application made
by defendant No.1. It is also pleaded that the defendants are in the
habit of picking quarrels with the plaintiffs and giving them a threat of
dire consequences. Defendant No.1 is neither maintaining plaintiff
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No.2 nor paying any maintenance charges for his occupation in the suit
premises. The defendants also give threat to dispossess the plaintiffs
from the said room and keep on making false complaints. Thus,
according to the plaintiffs, the defendants are occupying the suit
premises illegally and unauthorizedly and as such they are liable to be
removed from the suit premises by decree and order of this Court.
Hence, the suit.
5. From the perusal of the record, it reveals that since the
defendant No.1 though appeared in the matter on 5.4.2019 in response
to the service of writ of summons, he failed to file his written statement
and defendant No.2 though served with the writ of summons did not
appear in the matter, the suit has been directed to proceed without
written statement of defendant No.1 and ex-parte against defendant
No.2. The suit accordingly proceeded without written statement of
defendant No.1 and exparte against defendant No.2.
6. In view of the plaint averments, the following points
would arise for my consideration and I would record my findings
thereon for the reasons to follow:-
POINTS FINDINGS
1 Do the plaintiffs prove that plaintiff No.1 has
rights to evict the defendants from the suit
premises ?
Yes
2 What Order and Decree ? Suit is decreed with
costs.
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REASONS
7. Point Nos.1 & 2 : The plaintiffs in order to succeed in the suit
adduced oral evidence of plaintiff No.1 vide her affidavit of examination
in chief Exh.5. They also adduced and proved several documents such
as original rent receipts dated 29.04.2016, 6.2.2017, 26.2.2017,
10.3.2018, 14.01.2020, 14.2.2021 and 16.1.2022 vide Exh.7 colly.,
original ration card Exh.8, original electricity bills dated 30.7.2018,
20.11.2021 Exh.9 colly., two original affidavits dated 19.02.2016
Exh.10 colly., original affidavit dated 24.09.2018 Exh.11, original
written complaint dated 11.12.2016 lodged with Kurla Police Station
Exh.12, Office copy of Advocate notice dated 21.08.2018 Exh.13,
original written complaint dated 28.8.2018 lodged with Kurla Police
Station Exh.14, General Power of Attorney dated 22.9.2022 between
the plaintiffs Exh.15 etc..
8. Heard the learned Counsel for the plaintiffs. By inviting
my attention to the plaint averments, the oral and the documentary
evidence adduced by the plaintiffs and a fact that the defendants failed
to contest the suit, he would make submission that the plaintiffs have
established that initially plaintiff No.2 was the tenant of the suit
premises and she surrendered/assigned her tenancy rights in the suit
premises in favour of plaintiff No.1 who is the married daughter of
plaintiff No.2; the concerned landlord issued the rent receipts in the
name of plaintiff No.1 as a tenant of the suit premises; the defendants
who have no independent right, title and interest in the suit premises
but occupying the suit premises i.e. the upper floor portion from room
No.3 from House No.277 situated in Gulam Mohammed Chawl, Dr.
Ambedkar Chowk, Takiya Ward, Kurla (W), Mumbai 400 070 as a
brother and sister-in-law of plaintiff No.1 and son and daughter-in-law
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of plaintiff No.2 after their withdrawing consent for the same, the
defendants are liable to be removed from the suit premises. Hence, the
learned Counsel appearing for the plaintiffs would urge that the suit
deserves to be decreed with costs against the defendants.
9. After having considered the plaint averments, the oral and
documentary evidence tendered by the plaintiffs in support of their
claim, which remained unchallenged and uncontroverted, I see no just
ground to discard the evidence tendered by the plaintiffs. The
documentary evidence in the nature of rent receipts Exh.7 colly., which
are proved by PW-1 Mrs. Poornima would show that the landlord
namely Gulam Mohammed Shubrati and Other, Chawl No.277,
Ambedkar Chowk, 3 Null, Kurla (W), Mumbai 400 070 has issued those
rent receipts in the name of plaintiff No.1 Poornima as a tenant in
respect of house No.277/3 on 29.04.2016, 6.2.2017, 10.3.2018,
14.01.2020, 16.01.2022. The ration card Exh.8 is issued by the
competent authority in the year 2012 in the name of plaintiff No.1 as
the head of her family residing at Gulam Mohammed Chawl, House
No.277/3, Dr.Ambedkar Chowk, Kurla (W), Mumbai 400 070. From the
electricity bills Exh.9 colly., it is also evident that it is plaintiff No.1 in
whose name the electricity supply authority (Reliance Energy, Adani
Electricity) issued those bills for electricity consumption in the category
of residential with the same residential address as the suit premises as
stated in the plaint and other documents. The affidavits Exh.10 Colly.,
and Exh.11 would also demonstrate that the plaintiff No.2 Shakuntala
who was the monthly tenant and occupier of the said residential
premises/suit premises i.e. room No.3 consisting of ground plus upper
floor situate at Gulam Mohammed Chawl, House No.277/3,
Dr.Ambedkar Chowk, Kurla (W), Mumbai 400 070 assigned/transferred
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her tenancy rights in the said suit premises in favour of plaintiff No.1
for consideration of Rs.5 lakhs and accordingly the concerned landlord
accepted and treated plaintiff No.2 as a tenant of the suit premises and
accordingly issued rent receipts (Exh.7 colly.,) in her name.
10. It is further seen that the document Exh.12 which is first
information report in respect of non-cognizable offence, registered on
11.12.2016 with Kurla Police Station under Sec.323, 506 of IPC against
the defendants on the complaint of plaintiff No.1. From the notice
Exh.13 it would reveal that the plaintiff No.1 through her Advocate
namely Iqbal Qureshi had issued that notice on 21.08.2018 to
defendant No.1 stating therein that she is the lawful monthly tenant
and occupier of the suit premises; she acquired, purchased the said
premises from the previous tenant with the consent of the concerned
landlord who accordingly created monthly tenancy in respect of the suit
premises in the name of plaintiff No.1; she allowed defendant No.1 to
stay in the upper floor portion of the suit premises along with his family
members since he is her brother under his promise that he will make
arrangement for his accommodation as early as possible; since he has
not vacated the premises but used to pick up quarrels with the
plaintiffs and to give them threat, in respect of which various
complaints have been lodged against him and his wife i.e. the
defendants with Kurla Police Station and thus called upon him to
remove himself along with his family members from the suit premises
i.e. the upper floor portion within 15 days from the receipt of that
notice, failing which to face legal proceedings at his risk and
consequences.
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11. In view of the above facts and circumstances, established
on record by the plaintiffs by tendering oral and documentary evidence
in support of their claim and the same being remained unchallenged
and uncontroverted, I see no just ground to discard the said evidence
adduced by the plaintiffs. I accordingly accept the said evidence and
the submissions made by the plaintiffs’ Counsel. I would thus hold that
plaintiff No.1 acquired tenancy rights in respect of the suit premises i.e.
room No.3 at Gulam Mohammed Chawl, House No.277/3, Dr.Ambedkar
Chowk, Kurla (W), Mumbai 400 070 consisting of ground floor plus first
floor by virtue of transfer/assignment made by plaintiff No.2 in view of
her affidavits Exh.10 colly., and Exh.11 and the defendants have no
legal right, title or interest to remain in occupation of the first floor
portion of the said suit premises against the desire of plaintiff No.1 and
hence, the suit deserves to be decreed against the defendants. I
accordingly record my findings on point No.1 in affirmative and
proceed to decree the suit by passing following order :
ORDER
1. The suit is decreed with costs.
2. The defendant Nos.1 and 2 are directed to vacate the suit
premises i.e. upper floor portion of room No.3 situate at Gulam
Mohammed Chawl, House No.277/3, Dr. Ambedkar Chowk, Kurla
(W), Mumbai 400 070 within three months from the date of
passing of the decree in favour of plaintiff No.1.
3. An inquiry be held under Order 20 Rule 12 of the Code of
Civil Procedure, for mesne profits from the date of decree till the
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eviction of the defendants of the suit premises.
4. Decree be drawn up accordingly.
Date : 03.07.2023 (V. M. Pathade)
Direct Dictated on : 03.07/2023. Judge, C.R.No.62,
checked on : 04/07/2023. City Civil Court,
Signed on : 04/07/2023. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.07.2023 at 5.45 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. V.M. PATHADE
(C.R.No.62)
Date of pronouncement of Order 03/07/2023
Order signed by P.O. on 04/07/2023
Order uploaded on 04/07/2023
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