Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 572 OF 2020
IN
S.C. SUIT NO. 2157 OF 2019
( CNR No. MHCC01-001561-2020)
Mr. Milind alias Milan Janardan Kokate
( Through Power of Attorney holder)
1. Mrs. Leena Bhingarde & Anr. ...Plaintiffs.
V/s.
1. Smt. Harsha Nitin Kokate & Anr. ...Defendants.
Appearances :-
Learned advocate Rupali Shinde for plaintiffs.
Learned advocate V. B.Jagdale defendant No.1.
CORAM : HIS HONOUR JUDGE SHRI R. V. KOKARE.
(C.R.No.63)
DATED : 24/09/2021.
ORDER
This is a notice of motion taken out by the plaintiff for
temporarily restraining to the defendants from entering forcibly or
using or occupying dealing etc. with the suit premises i.e. Flat No.103,
Vishwaashish Co-op. Hsg. Society, Shankar Ghanekar Marg, Dadar(W)
Mumbai and the plaintiff also made prayer as prayer(b) that the
defendant no.2 be directed to maintain status quo of the suit premises
and plaintiff also prayed for contempt be issued against defendant no.1
for addressing notice dated 07/11/2019. The defendant no.1 resisted
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this notice of motion by filing her reply.
2. Read the present notice of motion, reply of the defendant No.1
thereon. Heard both the learned counsels on behalf of both the sides at
length. Perused the documents on record.
3. The learned counsel on behalf of the plaintiffs has submitted that
the defendant no.1 Smt. Harsha Nitin Kokate is the wife of his brother
deceased Nitin Kokate. Mr. Janardan Kokate who was the original
tenant of the old tenanted premises viz. Room Nos.9 and 10,
Jogeshwari Bhavan, Shankar Ghanekar Marg, Dadar(W), Mumbai. He
has two sons i.e. plaintiff Mr. Milind alias Milan Janardan Kokate and
Nitin Kokate and daughters namely Mrs. Leena S. Bhingarde, Mrs.
Smita M. Shetye, Mrs, Neetu V. Golam. The defendant no.1 Smt. Harsha
Nitin Kokate is the wife of deceased brother of plaintiff Milind @ Milan
Janardan Kokate. In the compromise between landlord i.e. owner of old
tenanted premises room Nos. 9 and 10 and Mr. Janardan Kokate i.e.
original tenant and by way of consent decree dated 27/04/1994 passed
in R.A.D. Suit No. 458/1993. The original owner Mr. Divakar Surve was
agreed to allot room in a new constructed building to the Janardan
Kokate. Before taking possession of the suit premises in new building,
Mr. Janardan Kokate was expired on 16/11/1998. Thereafter, Nitin
Kokate had been taken possession of the suit premises on behalf of the
original tenant Mr. Janardan Kokate. Thereafter, the plaintiff started
residing in the suit premises. Then, he went abroad and resided there
alongwith his family. The plaintiff used to visit India and whenever he
visit India, he used to stay in the suit premises.
4. The learned counsel on behalf of the plaintiffs has further
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submitted that on 26/02/1999, all the legal heirs of deceased Janardan
Kokate i.e. Nitin Kokate who is the husband of defendant no.1 and all
the sisters of the plaintiff had executed agreement and stated therein
that they have no objection for transferring the suit premises in favour
of the plaintiff. Thereafter, the plaintiff got transferred the suit premises
in his name and he had also born expenses i.e. maintenance charges
etc. of the society. The said society that is Vishwa-ashish Co-op Hsg.
Society/defendant no. 2 transferred the suit premises in the name of
the plaintiff. The learned counsel of the plaintiff has further submitted
that the husband of the defendant no.1 Nitin Kokate is expired on
05/07/2007. The defendant no.1 has no concern about the suit
premises. The defendant no.1 is residing at her parental house at
Borivali (W), Mumbai. The defendant no.1 has tried to interfere in
peaceful possession to the plaintiff over the suit premises. The
defendant no.1 also tried to transfer the suit premises in her name by
moving an application dated 07/11/2019 to the defendant no.2 Society.
5. The learned counsel on behalf of the defendant no.1 has
submitted that Mr. Divakar Surve landlord had delivered the possession
of the suit premises in the name of Nitin Kokate who is the husband of
defendant no.1. After receiving possession, the defendant no.1 and her
husband were residing in the suit premises. The plaintiff has no concern
with the suit premises and he had left India and he is residing with
family members in abroad. The learned counsel of the defendant no.1
has further submitted that the plaintiff and plaintiff’s sisters in collusion
with each other and in order to deprive the rights of defendant no.1 in
the suit premises had prepared false agreement dated 26/02/1999. The
plaintiff with the collusion of sisters got transferred his name of the suit
premises on the basis of false and bogus documents i.e. agreement
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dated 26/02/1999.
6. The learned counsel on behalf of the defendant no.1 has further
submitted that Mr. Nitin Kokate who is husband of defendant no.1 was
the owner of the suit premises. The original owner and landlord of the
suit premises Mr. Divakar Surve had filed Suit No.246/2006 against
Nitin Kokate before the Small Causes Court for eviction the suit
premises. After death of her husband, the defendant no.1 is the real
owner of the suit premises. The plaintiff has no right to restrain the
defendant no.1 from enjoying in the suit premises. On these grounds,
the learned counsel on behalf of the defendant no.1 has requested that
present notice of motion may kindly be dismissed.
7. After scrutiny of the rival pleadings of both the parties and on
scrutiny of the documents produced on behalf of both the sides and
arguments advanced on behalf of both the sides at length, it appears to
me that it is admitted fact that Mr. Janardan Kokate was the original
tenant of the old tenanted premises viz. Room Nos.9 and 10,
Jogeshwari Bhavan, Shankar Ghanekar Marg, Dadar(W), Mumbai.
Admittedly, the landlord i.e. original owner of the old tenanted premises
was Mr. Divakar Surve and Mr. Surve had filed suit bearing R.A.D. Suit
No.458/1993 against Mr. Janardan Kokate for vacating the old tenanted
premises i.e.Room Nos.9 and 10, Jogeshwari Bhavan, Shankar
Ghanekar Marg, Dadar(W), Mumbai. Admittedly, there was settlement
in between the plaintiffs and defendants in the Suit bearing
No.458/1993. The consent decree was passed on 27/04/1994 and in
the said settlement Divakar Surve was agreed to deliver the room in
new constructed building to the Janardan Kokate. Thereafter, Mr.
Janardan Kokate is expired on 16/11/1998 before taking possession of
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the suit premises. On perusal of the documents produced on behalf of
the plaintiff below Exhibit-C, the landlord Mr. Divakar Surve was
delivered possession of the room No.103, dated 28/10/2000 and the
room had been allotted. The said allotment letter was accepted by Nitin
Kokate on behalf of his father Janardan Kokate. Thereafter, on
28/10/2000, Mr. Nitin Kokate had informed to Landlord Mr. Surve that
he had been taken possession of Room No. 103 instead of room no. 203.
8. On scrutiny of the documents produced on behalf of the plaintiff,
it appears to me that Mr. Nitin Kokate was the deceased husband of the
defendant no.1 and sisters of plaintiff had executed an agreement dated
26/02/1999 stating therein that they have no objection for transferring
the suit premises in the name of the plaintiff. On 28/04/2007, the
plaintiff made an application to the defendant no.2 Society for
transferring the suit premises in his name on the basis of agreement
dated 26/02/1999 executed by legal heirs of deceased Janardan
Kokate. Documents on behalf of the plaintiffs, it further reveals that on
02/03/2008, the defendant no.2 Society transferred the suit premises in
the name of the plaintiffs. The documents further reveals that on
04/01/2008 and 06/06/2015 the plaintiffs have born maintenance
charges in respect of the suit premises to the defendant no. 2 society.
9. From the pleadings of both the parties and documents on record
shows to me that Mr. Janardan Kokate was the original tenant of old
tenanted premises. Thereafter, by way of consent decree passed in
R.A.D. Suit No.458/1993, the landlord Mr. Divakar Surve was agreed to
allot room in new constructed building in favour of the original tenant
namely Janardan Kokate. But prior to taking possession of room in new
constructed building, the original tenant Janardan Kokate is expired on
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16/11/1998. Mr. Nitin Kokate husband of defendant no.1 had taken
possession of the new room i.e. suit premises on behalf of his father
deceased Janardan Kokate. The plaintiff had got transferred the suit
premises in his name on 02/03/2008 on the basis of alleged agreement
dated 26/02/1999 executed by all the legal heirs of the deceased
Janardan Kokate including Nitin Kokate who is husband of defendant
no.1. It is pertinent to note that the defendant no.1 has submitted that
the plaintiff and his sisters prepared false and bogus agreement dated
26/02/1999. There is no explanation on behalf of the plaintiff as to
why he sought his name on suit premises at very late i.e. on 02.03.2008
when all the legal heirs of deceased Janardan Kokate executed
agreement dated 26/02/1999 stating therein that they have no
objection for transfer of suit premises in the name of the plaintiff.
10. Admittedly, the defendant no.1 is the wife of deceased Nitin
Kokate. Therefore, in my view, the defendant no.1 has equal right to all
the legal heirs of deceased Janardan Kokate in respect of the suit
premises. Therefore, the plaintiff has no right to restrain to defendant
no.1. Admittedly, the defendant no.1 made an application to the
defendant no.2 Society dated 07/11/2019. By issuing such letter by the
defendant no.1 to the defendant no.2 such act of the defendant no.1 is
not any type of contempt.
11. From above my discussion, I come to the conclusion that the
plaintiff has not made out prima facie case. Balance of convenience
does not lies in favour of the plaintiff. The Plaintiff will not suffer
irreparable loss, if this notice of motion is not granted in his favour.
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Hence, I proceed to pass following order.
ORDER
Notice of Motion No. 572/2020 is hereby dismissed.
Sd/-
( R. V. Kokare )
Judge
City Civil & Sessions Court,
Dated :24/09/2021. Gr. Mumbai
Dictated on: 24/09/2021
Transcribed on: 24/09/2021 & 27/09/2021
HHJ signed on: 27/09/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
27/09/2021 at 5.00 p.m.
NAME OF STENOGRAPHER
( Mrs. V. V. Malgaonkar )
Name of the Judge HHJ Shri R. V. Kokare
(COURT ROOM NO.63)
Date of pronouncement of
judgment/order
24/09/2021
Judgment/order signed by P.O. on 27/09/2021
Judgment/order uploaded on 27/09/2021
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