Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No. 444 of 2019 in Suit No. 1459 of 2015
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO 444 OF 2019
IN
SUIT NO. 1459 of 2015
Mr. Manohar Anant Honale …… Plaintiff
V/s
Mr. Madhav Anant Honale & others …… Defendants.
Advocate Mr. Tarnnum Shaikh for the defendant No.1.
Advocate Mr. Parmar for the plaintiff.
Advocate Ms. Chandramore for BMC/defendant No.2.
Advocate Ms. Prabhu for MHADA/defendant No.3.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 17th JUNE 2020
ORAL ORDER
The defendant No.1 has taken out this notice of motion
praying to recast the issue No.1 and frame two additional issues as
suggested by him. The plaintiff has resisted this notice of motion
contending that the defendant No.1 never submitted draft issues and
when the trial of the suit is commenced, he has taken out this notice of
motion to delay the trial. The Court has framed issues on the basis of
rival pleadings and the documents relied on by the parties and
therefore, the issues are not required to be recast nor additional issues
as suggested by the defendant No.1 are required to be framed. The
learned advocates for both the parties have submitted written
arguments and the learned advocate for the plaintiff has relied on two
rulings.
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2. The suit is for quashing and setting aside the order dated
27.05.2014 passed by the Vice President and CEO of the defendant
No.3/MHADA and for certifying that the plaintiff is the tenant and
occupant and in the alternative, joint tenant and occupant along with
the defendant No.1 of the premises i.e. Room No.203 on the second
floor constructed in lieu of the old Room No.A-4 on the ground floor in
old Ganeshkrupa Building, formerly known as Motilal Mansion on
C.s.No. 542 of Girgaon Division, Ward No.D-941/944, Building No.46,
Sadashiv Cross lane, Girgaon, Mumbai-400004 (hereinafter called as
‘the suit premises’). The pursuant declaration is sought that the order
dated 27.05.2014 passed by the defendant No.3/ MHADA is illegal and
void and is liable to be quashed and set aside. Further declaration is
sought that the plaintiff is entitled to occupy the suit premises as a
tenant and occupant thereof or in the alternative, joint occupant with
the defendant no.1 and consequential relief of injunction restraining the
defendant No.1 from parting with possession of the suit premises or
transferring the rights therein by the manner whatsoever.
3. In nutshell, the case of the plaintiff, he was the tenant in
old Room No. A-4 on the ground floor in old Ganeshkrupa Building
where he was residing with his wife, daughter-in-law and two grand-
children. The old Building has been demolished and a new building has
been constructed by the defendant No.4/developer through the
defendant No.3/MHADA by obtaining necessary permissions from the
defendant No.2/ MCGM. Room No.203 is proposed to be allotted in lieu
of the old premises.
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4. The defendant No. 1 is the younger brother of the plaintiff.
Somewhere in the year 1980, the defendant No.1 was in shortage of
accommodation. So, for convenience, the plaintiff allowed the
defendant No.1 to occupy the suit premises till it is demolished for
reconstruction and the plaintiff shifted with his family to the premises
at the address given in cause title. The rent receipt of the suit premises
was however standing in the name of the plaintiff even though he had
shifted to another premises.
5. On 28.05.2005, the Architect published a public notice
wherein the name of the plaintiff was mentioned at Sr. No. 4 against
Room No.A-4 as the tenant and occupant. Subsequently, Mumbai
Repairs and Reconstruction Board (MBR & R Board) of MHADA
prepared a list of occupants in a building under reconstruction in the
year 2007 wherein the name of the defendant No.1 was wrongly
mentioned as the tenant and occupant of the suit premises. The plaintiff
therefore issued letter dated 19.03.2008 to the defendant No.3/MHADA
and a letter dated 31.03.2008 to the defendant No.2/MCGM informing
them that the name of the defendant No.1 is wrongly mentioned as the
tenant and occupant of the suit premises and the plaintiff has ample
documents to show that he is the tenant and occupant of the suit
premise since prior to its demolition.
6. The defendant No.3, through MBRRB conducted an inquiry
on receipt of the letter of the plaintiff. The plaintiff and the defendant
No.1 were called for hearing. They submitted their documents and on
the said inquiry, MBRRB proposed changes in tenancy/occupancy of
Room No.A-4 to the effect that the name of the plaintiff be recorded as
the tenant and the names of both the plaintiff and the defendant No.1
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be recorded as the joint occupants of the suit premises. The defendant
No.2/MCGM did not satisfy with the proposal of MBRRB and therefore,
further clarification was sought by MCGM vide. its letter dated
03.06.2008. The inquiry was again conducted by MBRRB and according
to the plaintiff, the defendant No.1 submitted some false and fabricated
documents to claim his tenancy and occupancy over the suit premises.
On completion of inquiry, MBRRB arrived at conclusion that the plaintiff
has documents to show his tenancy rights over the suit premises, the
defendant has also produced documents to show that he is in possession
over the suit premises since last 15 years. It was further observed that it
is the dispute between two brothers who are part of joint family and
both of them are claiming occupancy rights over the suit premises in
spite of the fact that both brothers have their separate rooms bearing
No.A-4 and C-2 in the said building. The MBRRB therefore, proposed to
record the name of the plaintiff as the tenant and the name the
defendant No.1 as the occupant in the record of the suit premises.
7. It is the contention of the plaintiff that the defendant No.1
and 4, in collusion with each other have shown that the defendant
No.1 has surrendered the suit premises for reconstruction and has
received the compensation of Rs.71,500/- for three years. According to
the plaintiff, in any event the name of the plaintiff shall appear as the
occupant or at least joint joint occupant with the defendant No.1 in the
record of the suit premises and the plaintiff is entitled to have
possession over the suit premises.
8. The defendant No.1 resisted the suit by filing his written
statement at Exh.3. The suit proceeded ex-parte against rest of the
defendants.
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9. The defendant No.1 has come with a case that prior to the
year 1981 he and the plaintiff were the members of the joint family
consisting their father Anant and his two brothers Shantappa and
Padmanna. These three brothers were running partnership business of
manufacturing and marketing different types of pickles and spices in the
name and style “M/s. B.S. Honale & Sons”. Shantappa and Padmanna
had no issue. Anant (the father of the plaintiff and defendant No.1) had
three sons and three daughters i.e. Manohar (plaintiff), Madhav
(defendant No.1) and Sanjay. All the tree daughters have been married.
According to the defendant No.1, The joint family, as stated above, was
in occupation of four rooms on the basis of tenancy in the names of
different members of the family in old Ganeshkrupa Building which
were acquired from nucleus of joint family business. None of the
members of the joint family had any separate source of income.
10. It is further case of the defendant No.1 that the wife of the
plaintiff was not getting on well with other members of the joint family.
So, in order to maintain peace and harmony among the members of the
joint family, three brothers viz. Shantappa Padmanna and Anant
purchased a flat in Nana Shankar Smriti Building from the joint family
income and the plaintiff with his wife and children shifted to the said
flat somewhere in 1980-81 and started residing there. The plaintiff
became the member of the Society of the said building. The plaintiff
never occupied the suit premises since 1980-81 though the rent receipt
of the suit premises was standing in his name but merely as family
arrangement. The defendant No.1 is actually residing in the suit
premises with his family since prior to 1980 and is paying the rent
regularly since 1980-81. But, by taking undue advantage of the fact that
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the rent receipts were being issued in the name of the plaintiff, he is
now claiming his right over the suit premises. There was clear
understanding at the time of purchasing the flat for the plaintiff in Nana
Shankar Smriti Building in his name that the plaintiff shall not claim
any right or interest in the suit premises and the suit premises shall be
used occupied and enjoyed by the defendant No.1 exclusively. The
landlords of the old building were claiming premium to transfer the
rent receipt in the name of the defendant No.1. Therefore, the father of
the plaintiff and the defendant No.1 decided not to apply for the
transfer of the rent receipt and the defendant No.1 continued to pay the
rent and to collect the rent receipts.
11. According to the defendant No.1, the plaintiff tried to
produce false and fabricated documents before the Inquiry Officer of
MBRRB. Considering the documents produced by both parties, MBRRB
found that the defendant No.1 is the ‘Occupier’ within the meaning of
Sec. 2 (25) of MHADA Act,1976 and passes an order to that effect
12.05.2014. The plaintiff challenged that order in appeal before the
Appellate Authority under MHADA Act, 1976 but the said Authority, by
its order dated 27.05.2014 confirmed the order under appeal and
consequently dismissed the appeal. As such, according to the defendant
no.1, the order passed by the Appellate Authority can at the most be
challenged in Writ Petition before the Hon’ble High Court but it can
never be challenged before this Court as there is clear bar under
Sec.177 of MHADA Act,1976. Thus, the order passed by the Appellate
Authority has attained finality and this Court will have no jurisdiction to
entertain and try this suit.
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12. It is further case of the defendant No.1 that old
Ganeshkrupa building was cess building and MHADA undertook its
redevelopment under Regulation No. 33(7) of the Development Control
Regulation for Greater Mumbai, 1991 (for short, DC Regulation).
MHADA obtained NOC from the defendant No. 2/MCGM on 18.06.2007
to construct a building as per approved plan. MHADA accordingly
constructed a building consisting ground and upper twenty floors
having five flats on each floor and shops on the ground floor by
demolishing old Ganeshkrupa Building. The new building was named as
“Jayant Ganeshkrupa Building”. MHADA has allotted two flats i.e. Flat
No. 302 on the second floor and Flat No.305 on the third floor to the
defendant No.1 in lieu of the premises in his occupation in the old
building i.e. Room No. A-4 and 2. According to the defendant No.1, the
plaintiff has suppressed all these material facts and has filed this suit
which is absolutely not maintainable before this Court nor the plaintiff
is entitled to get any relief as claimed by him. The suit is otherwise not
maintainable for want of statutory notice under Sec. 527 of MMC Act
and under Sec. 173 of the MHADA Act. He therefore, prays that the suit
be dismissed with exemplary cost.
13. My learned predecessor has framed following issues
(Exh.4).
ISSUES
1. Does plaintiff prove that the impugned order dated 27.05.2014 is
illegal, bad in law and is required to be quashed and set aside or
modified?
2. Does plaintiff prove that he is entitled for declaratory relief as
sought?
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3. Whether the plaintiff is entitled for order of permanent injunction
as sought?
4. What order and decree?
14. Now, it is the contention of the defendant no.1 that he has
taken specific pleas in his written statement firstly that this suit is
barred by the express provisions of Sec.177 of MHADA Act, secondly
that this suit is not maintainable for want of statutory notices under
Sec.527 of MMC Act and under Sec. 173 of MHADA Act and thirdly, the
plaintiff has sought in substance a declaration of his tenancy rights over
the suit premises and the question of declaration of tenancy comes
within the exclusive jurisdiction of the Small causes Court and
therefore, this Court will have no jurisdiction to entertain try such type
of suit. No issues have been framed on the basis of these pleadings
though they not only arise but go into the very root of the matter.
15. The learned advocate for the plaintiff has relied on two
judgments of the Hon’ble Bombay High Court, one in
Mr. Peter Cajetan
Travasso v/s Ignatius Pereria decided on 12.12.2011 and another in
Rajan Prabhakar Borde v/s MHADA reported in AIR 1983 Bom. 493.
According to me, both these judgments would be relevant when the
issues of jurisdiction and maintainability of the suit are to be decided.
The question for determination in this notice of motion is as to whether
such issues would arise from rival pleadings? So, these judgments are
not relevant at this stage.
16. The detailed pleadings as referred above would disclose
that the issues as suggested by the defendant No.1 would arise from the
pleadings. Secondly, those issues are purely the issues of law and
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therefore, they are required to be framed. Thus, I find it necessary to
recast entire issues as per pleadings. They are to be framed as follows;
ISSUES
1. Whether this Court has jurisdiction to entertain and try this suit?
2. Whether this suit is barred by Sec.177 of MHADA Act,1976?
3. Whether this suit is bad for want of notice under Sec. 173 of
MHADA Act and/or under Sec.527 of MMC Act?
4. Whether the order dated 27.05.2014 passed by the Vice President
and CEO of MHADA in respect of the suit premises is legal and
valid?
5. Whether the defendant No.1 proves his exclusive right and
possession over the suit premises as per alleged family
arrangement?
6. Whether the plaintiff is entitled for declaration and consequential
relief of injunction as prayed?
7. What order and decree?
17. In view of the forgoing reasons, the notice of motion
deserves to be made absolute in above terms. Hence the following
order.
O R D E R
1. Notice of Motion No.444 of 2019 is made absolute and
issues are recast accordingly.
2. In the circumstance, no order as to cost.
3. Notice of Motion No.444 of 2019 stands disposed of.
(S. R. SALUNKHE)
Judge,
City Civil Court,
Date: 17/06/2020. Gr. Bombay.
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Dictated on : 17/06/2020
Transcribed on : 17/06/2020
Signed on : 17/06/2020.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/06/2020 At 01.50 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
17/06/2020
Judgment/Order signed by P.O. on 17/06/2020
Judgment/Order uploaded on 18/06/2020
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUIT NO. 1459 of 2015
Mr. Manohar Anant Honale …… Plaintiff
V/s
Mr. Madhav Anant Honale & others …… Defendants
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
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RECAST ISSUES
(As per order passed in Notice of Motion No. 444 of 2019)
1. Whether this Court has jurisdiction to entertain and try this suit?
2. Whether this suit is barred by Sec.177 of MHADA Act,1976?
3. Whether this suit is bad for want of notice under Sec. 173 of
MHADA Act and/or under Sec.527 of MMC Act?
4. Whether the order dated 27.05.2014 passed by the Vice President
and CEO of MHADA in respect of the suit premises is legal and
valid?
5. Whether the defendant No.1 proves his exclusive right and
possession over the suit premises as per alleged family
arrangement?
6. Whether the plaintiff is entitled for declaration and consequential
relief of injunction as prayed?
7. What order and decree?
(S. R. SALUNKHE)
Judge,
City Civil Court,
Date: / /2020. Gr. Bombay.
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