Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM-509-2020 in SU-324-2020
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.509 OF 2020
(CNR No.MHCC01-001335-2020)
IN
SUIT NO.324 OF 2020.
(CNR No.MHCC01-001039-2020)
Mohammed Sajid Mohammad Hanif Ansari }...PLAINTIFF.
Versus
Ansari Mohammed Yunus Mohammed Hanif & Ors.}...DEFENDANTS.
------------------------------------------------------------------------------------------------
Shri.Kapil Shetye, learned advocate for the plaintiff.
Shri.Agrawal, learned advocate for defendant No.1.
Nobody appeared for defendant Nos.2 to 8.
------------------------------------------------------------------------------------------------
CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
-----------------------------------------------------------------------------------------
O R A L O R D E R
(Delivered on 23/05/2022)
1. This Notice of Motion is taken out by the plaintiff for
seeking the following reliefs;
a) That pending the hearing and final, disposal of the suit,
this Honourable Court be pleased to restrain the Defendant No.3
and 4, their heirs, legal representatives, servants, agents,
employees and all person or persons claiming through them or
under them by an order and injunction of this Honourable Court
from handing over possession of the permanent alternate
accommodation in Flat No.1101, Darul faiz Building 23-27,
Sankil Street, 6th Lane, Byculla, Mumbai-400 008 in lieu of the
old tenanted premises Room No.40, Chunawala Cottage to the
defendant no.1 only.
b) That pending the hearing and final, disposal of the suit,
the servants, agents, employees and all person or persons
claiming through him or under him be restrained by an order and
injunction of this Honourable Court from in any manner dealing
with, disposing off, alienating, encumbering and/or creating any
third party right in permanent alternate accommodation in Flat
no.1101, Darul faiz Building 23-27, Sankil Street, 6th Lane,
Byculla, Mumbai-400 008 in lieu of the old tenanted premises
Room No.40, Chunawalla Cottage.
2. Read the affidavits and counter affidavits filed by plaintiff
-- 1 of 11 --
2 NM-509-2020 in SU-324-2020
and defendant No.1 so also, affidavit in reply filed by defendant No.s3
& 4 in support of their respective contentions. Heard learned Shri.Kapil
Shetye advocate for the plaintiff and learned Shri.Agrawal advocate for
defendant No.1. Nobody appeared to advance argument on behalf of
defendant Nos.2 to 8. Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiff ? ...Partly yes.
ii) Whether balance of convenience lies in his
favour? ...Partly yes.
iii) Whether irreparable loss will cause to the
plaintiff if interim injunction as claimed is not
granted? ...Partly yes.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for plaintiff argued that defendant Nos.1 & 2 are the brothers
of the plaintiff, their father was the tenant in respect of old premises
bearing room No.40 situated at Chunawala Cottage and after the death
of the father, plaintiff alongwith defendant Nos.1 and 2 acquired 1/3rd
share each in the said old premises. He argued that Chunawala Cottage
went in redevelopment, defendant Nos.3 and 4 are the landlord and
developer, plaintiff with his family members was residing in the old
premises till it is vacated for redevelopment purposes but defendant
No.1 has fraudulently entered his own name only in the development
agreement though it was decided that permanent alternate
accommodation will be given to the legal heirs of deceased original
-- 2 of 11 --
3 NM-509-2020 in SU-324-2020
tenant. He argued that defendant No.1 has fraudulently got transferred
electric bill of the old premises in his name by forging the rent receipt in
his own name in respect of which, plaintiff has filed a complaint and
concerned police station has submitted report against defendant No.1.
He argued that rent for temporary accommodation was being paid by
defendant Nos.3 & 4 which was being distributed amongst the plaintiff,
defendant No.1 and defendant No.2 which fact is recorded by the police
in the statement of defendant No.1. He argued that names of plaintiff
and his family members are available in the Ration Card issued on the
address of the old premises but by taking disadvantage of Permanent
Alternate Accommodation Agreement, defendant No.1 alone is trying to
take possession of the suit flat bearing No.1101 being the permanent
alternate accommodation in lieu of old premises though, plaintiff and
defendant No.2 are having 1/3rd share each therein alongwith
defendant No.1 due to which, it is necessary to grant temporary
injunction in terms of prayer clause(a). He argued that possession of
suit flat is given to defendant No.1 without obtaining occupancy
certificate hence, it cannot be termed as legal possession. He argued
that defendant No.1 may create third party interests in the suit flat
hence, it is necessary to grant temporary injunction in terms of prayer
clause(b) of the plaint. In support of his argument, learned advocate for
the plaintiff has placed reliance on the following authorities.
i)
Judgment dtd.07/08/2013 of
Hon’ble Bombay High Court in a
case of
Sanjay Govind Ganjekar and Ors. Vs. Krishna Kashiram
Mistri and Ors. (Appeal From Order No.1221 of 2012 with
Civil Application No.1660 of 2012),
ii)
Judgment dtd.15/10/2013 of
Hon’ble Bombay High Court in a
case of
M/s. Sion Kamgar Co-operative Housing Society Ltd. Vs.
Municipal Corporation of Greater Mumbai and Ors. (Writ Petition
No.829 of 2013),
-- 3 of 11 --
4 NM-509-2020 in SU-324-2020
iii)
Judgment dtd.20/01/2019 of
Hon’ble Supreme Court in a case of
Poona Ram Vs. Moti Ram (D) TH LRs and Ors. (Civil Appeal
No.4527 of 2009),
iv)
Judgment dtd.24/05/2018 of
Maharashtra Real Estate Appellate
Tribunal under RERA Act in a case of
M/s. Bhavana Duvey Vs.
Teertha Realities.
I have gone through those authorities.
5. As against this, learned advocate for defendant No.1
argued that plaintiff was not residing with the father at the time of
death of the father, plaintiff was residing abroad from year 1981 till
year 2015, plaintiff had not attended the funerals of the father and
mother hence, in view of provisions of Section 7(15) of Maharashtra
Rent Control Act, plaintiff is not entitled to inherit tenancy rights in
respect of the old premises. He argued that defendant No.1 has paid
various amounts to the plaintiff and daughter of plaintiff for helping
them yet, plaintiff is falsely claiming that those amounts are paid to him
as his share in temporary accommodation rent amount. He argued that
defendant No.1 has already received possession of the suit flat being the
alternate accommodation premises from defendant Nos.3 and 4 due to
which, plaintiff is not entitled for temporary relief in terms of prayer
clause(a) of the plaint. He argued that defendant No.1 alone is entitled
for the permanent alternate accommodation in lieu of the old premises
as name of defendant No.1 alone is available in the list of tenants/
occupants certified by MHADA, Permanent Alternate Accommodation
Agreement is executed by defendant Nos.3 & 4 in favour of defendant
No.1 alone due to which, Notice of Motion is liable to be dismissed. In
support of his argument, learned advocate for defendant No.1 has
placed reliance on the following authorities.
i)
Jaysen Jayant Rele and Ors. Vs. Shantaram Ganpat Gujar
reported in
AIR 2002 Bom. 462,
-- 4 of 11 --
5 NM-509-2020 in SU-324-2020
ii)
Vasant Pratap Pandit Vs. Dr. Anant Trimbak Sabnis
reported in
(1994) 3 SCC 481,
iii)
Parubai Manilal Brahmin Vs. Baldevdas Zaverbhai Tapodhan
reported in
(1964) 5 GLR 563,
iv)
Judgment dtd.21/08/2015 of
Hon’ble Bombay High Court in a
case of
Dharamvir I. Joshi Vs. Jayant R.Patwardhan (Civil Revision
Application No.225 of 2015 @ Civil Application No.349 of 2015).
I have gone through those authorities.
6. It is not in dispute that defendant Nos.1 and 2 are the
brothers and defendant Nos.5 to 8 are the married sisters of the
plaintiff. It does not appear to be in dispute that their father was the
original tenant in respect of old Room No.40 situated at Choonalwa
cottage. It is not in dispute that father expired on 08/09/2006 leaving
behind him the plaintiff, defendant No.1 and defendant No.2 as his
sons, their mother as his widow and defendant Nos.5 to 8 as his
married daughters. Admittedly, mother expired in year 2008. It is an
admitted fact that Chunawala Cottage has gone into redevelopment &
suit flat No.1101 is agreed to be allotted as permanent alternate
accommodation in lieu of old tenanted premises. It is not in dispute that
agreement for permanent alternate accommodation is executed by
defendant Nos.3 & 4 with defendant No.1 alone.
7. Parties are governed by the principles of Mohamedan Law
however, for the purposes of considering the rules of succession in
respect of the tenanted premises, provisions of Section 7(15)(d) of
Maharashtra Rent Control Act would be applicable which prescribe that
a member of tenant’s family who has been residing with the deceased
tenant at the time of his death shall be entitled to inherit the tenancy
rights. In the matter in hands, defendant No.1 is claiming that plaintiff
was residing abroad for a period from year 1981 till year 2016, plaintiff
was not residing with the father in the tenanted premises at the time of
-- 5 of 11 --
6 NM-509-2020 in SU-324-2020
death of father hence, plaintiff is not entitled to inherit the tenancy
rights in respect of the old premises.
8. Plaintiff has produced copy of Ration Card issued on the
address of old premises wherein, name of plaintiff is available. Plaintiff
has also placed on record copies of his Passports, Voters' ID, AADHAR
Card, Driving License issued in his name on the address of old premises.
He has also produced copies of AADHAR Cards, Passports, driving
license etc. issued in the names of his wife and daughter on the address
of the old premises. Defendant No.1 has contended that plaintiff was
residing abroad for a period from year 1981 to year 2015. Plaintiff has
not specifically denied said contention of defendant No.1. He has
contended that he was residing abroad but his family was residing in
the old premises itself.
9. Plaintiff has placed on record copy of complaint filed by
him before Metropolitan Magistrate against the defendant No.1 and
report submitted by the police alongwith statement of defendant No.1
recorded by the police. Copy of statement of defendant No.1 produced
by the plaintiff
prima-facie suggests that defendant No.1 has stated
before the police that old tenanted room No.40 of the father was the
ancestral property of plaintiff, defendant No.1 and defendant No.3, all
three brother were residing therein, building went under redevelopment
in year 2016, developer is issuing cheque of temporary rent which is
being distributed amongst the three brothers. Police report
prima-facie
suggests that police found during investigation that defendant No.1 has
got transferred the electric bill in respect of the old premises in his own
name by submitting forged rent receipt with BEST. Having gone through
the copies of documents produced on record by the plaintiff, this court
is of the opinion that those copies are
prima facie sufficient at this stage
-- 6 of 11 --
7 NM-509-2020 in SU-324-2020
for accepting that though the plaintiff was residing abroad, his
permanent address in India was the old premises Room No.40.
10. Though there appears substance in the argument of the
learned advocate for defendant No.1 that name of the mother is also
appearing in the Ration Card though she expired in year 2008, it is not
sufficient to reach to the conclusion that plaintiff has committed forgery
of the Ration Card because defendant No.1 has not produced the copy
of the Ration Card which would show that names of the plaintiff and his
family were not available in the Ration Card since beginning.
11. Contention of plaintiff is that possession of old premises
has been delivered for redevelopment purposes by consent of all the
three brothers i.e. plaintiff, defendant Nos.1 and 2. Material available
on record in the form of police papers as mentioned above so also, the
copies of documents placed on record by plaintiff
prima-facie support
his contention at this stage that he had not permanently left old
tenanted premises though he was residing abroad for a considerable
period. The fact that plaintiff was not personally present at the time of
death of the father in itself is not sufficient for holding that plaintiff had
permanently left the old premises and thereby he is not entitled to
inherit tenancy rights in the old premises. Suit flat is being allotted in
lieu of the old tenanted premises and hence, it appears at this stage that
plaintiff is having share in the suit flat alongwith defendant Nos.1 & 2.
12. In terms of the prayer clause(a) of the Notice of Motion,
plaintiff has prayed to temporarily restrain defendant Nos.3 and 4 from
handing over possession of suit flat No.1101 to defendant No.1 alone in
lieu of the old tenanted premises. Copy of agreement dtd.08/05/2015
shows that agreement for permanent alternate accommodation has
been entered into between the defendant Nos.3 and 4 and defendant
-- 7 of 11 --
8 NM-509-2020 in SU-324-2020
No.1. As is pointed out by learned advocate for the plaintiff, heirs of the
father are held eligible for permanent alternate accommodation in lieu
of the old tenanted premises. Said agreement is of year 2015 and suit is
filed in year 2020 for challenging the said agreement. Plaintiff has
contended that he learnt about the said agreement for the first time in
June 2018. Copies of documents placed on record by the plaintiff show
that plaintiff has filed a complaint against defendant No.1 in the Court
of learned Metropolitan Magistrate in year 2018 and police station
concerned has submitted report that defendant No.1 has forged rent
receipt. Even though the plaintiff has filed a complaint, he has not
explained as to why he has not challenged the validity of permanent
alternate accommodation agreement immediately after receiving the
copy of said agreement in year 2018 which
prima facie suggests that
there is delay of about two years on the part of plaintiff in approaching
the court for seeking relief in respect of the said agreement.
13. Defendant No.1 has filed a pursis that possession of the suit
flat has already been handed over to him by defendant Nos.3 and 4.
Learned advocate for the plaintiff argued that temporary possession is
handed over to defendant No.1 which cannot be said to be a legal
possession because Occupation Certificate has not been issued till date.
He drew my attention to letter dtd.20/06/2020 addressed by the
plaintiff to defendant Nos.3 and 4 whereby it was informed to those
defendants that handing over of possession without obtaining
Occupation Certificate is illegal and attract Penal Provisions.
14. In a case of
M/s. Sion Kamgar Co-operative Housing
Society Ltd. Vs.Municipal Corporation of Greater Mumbai and Ors.
cited above on which reliance is placed by learned advocate for the
plaintiff, Hon'ble High Court has held that possession without
-- 8 of 11 --
9 NM-509-2020 in SU-324-2020
Occupancy Certificate is not legal. Either defendant No.1 or defendant
Nos.3 & 4 have not placed on record any material to show that
Occupancy Certificate has been issued. May that it be so, it is an
admitted fact that agreement for permanent alternate accommodation
has been executed between defendant Nos.3 & 4 and defendant No.1.
Copy of list of tenants/occupants certified by MHADA shows that name
of defendant No.1 alone is available as occupant in respect of the old
premises. Plaintiff has produced copy of notice published by developer
which shows that names of plaintiff and defendant No.1 are available
therein as occupants of the old premises however, the fact remains that
agreement for permanent alternate accommodation is executed with
defendant No.1 alone by defendant Nos.3 & 4. It is not the contention
of the plaintiff that defendant Nos.3 and 4 have played any mischief in
that regard. All the allegations made by plaintiff are against defendant
No.1 alone and not against defendant Nos.3 and 4. Having regards to it,
this court is of the opinion that defendant Nos.3 and 4 are required to
handover possession on the suit flat to defendant No.1 as per the
agreement for permanent alternate accommodation and they are not
concerned with the family dispute between plaintiff and his brother i.e.
defendant No.1. As such, neither
prima facie case nor balance of
convenience do lie in favour of the plaintiff in respect of prayer
clause(a) of the Notice of Motion.
15. Prayer clause(b) of the Notice of Motion is not properly
worded conjoint reading of prayer clauses(c) & (d) of the plaint makes
it clear that temporary injunction in terms of prayer clause(b) of the
Notice of Motion is claimed by the plaintiff against defendant No.1.
Even though it is found that defendant Nos.3 & 4 cannot be restrained
from handing over possession of suit flat to defendant No.1, the claim
-- 9 of 11 --
10 NM-509-2020 in SU-324-2020
of the plaintiff appears
prima facie acceptable at this stage that he is
having 1/3rd share in the suit flat. Defendant No.1 has come with a case
that he alone has inherited tenancy rights as plaintiff was not residing
with the father at the time of death of father. It will be a matter for
consideration on merits of the suit whether plaintiff had inherited
tenancy rights in old premises. At this stage, documents produced by
the plaintiff are sufficient for accepting his contention that plaintiff had
not permanently left the old premises. It being so,
prima facie case &
balance of convenience both do lie in favour of the plaintiff in terms of
prayer clause(b) of the Notice of Motion. This court is satisfied that if
defendant No.1 is not temporarily restrained from creating third party
interests in the suit flat pending final disposal of the suit, it will cause
an irreparable loss to the plaintiff. For all the above mentioned reasons,
by recording my findings on Point Nos.(i) to (iii) accordingly, I pass the
following order.
O R D E R
Notice of Motion No.509 of 2020 is partly allowed in terms
of its prayer clause (b) only.
Date : 23/05/2022. (P.P.RAJVAIDYA)
Dictated on : 23/05/2022. Judge, C.R.No.62,
Checked on : 24/05/2022. City Civil Court,
Signed on : 24/05/2022. Mumbai.
-- 10 of 11 --
11 NM-509-2020 in SU-324-2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
25.05.2022 at 4.05 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 23/05/2022
Order signed by P.O. on 24/05/2022
Order uploaded on 25/05/2022
-- 11 of 11 --