Final Order 2

Order Details: Notice of Motion
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MHCC010019662019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 753 OF 2019
IN
SUIT NO. 2244 OF 2019.
Arham Azhar Hussain Shaikh ]..Plaintiff.
V/s.
Rehmat Sajid Ali Shaikh and ]
others. ]..Defendants.
Advocate Mr. Patil alongwith Advocate Mr. Gajanan Shinde for the
plaintiff.
Advocate Mr. J.H. Dhoragiwalla for defendant Nos.2 and 3.
Advocate Mr. S. R. Alana for defendant No.4.
Advocate Ms. Harshida Darji h/f Advocate Mr. Kandekar for defendant
No.5/MHADA.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 4th NOVEMBER 2023
ORAL ORDER
The present Notice of Motion has been taken out by
plaintiff seeking relief in terms of prayer clause (a) to (c). However, it
has been submitted that the prayer clause (a) and (b) has become
infructuous and the plaintiff is pressing for relief in terms of prayer
clause (c) of Notice of Motion only.
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2. It is the contention of the plaintiff that the plaintiff has
equal rights in the suit premises. However, the defendants have been
trying to defeat the rights of minor plaintiff in the suit premises. It is
submitted that the father of the plaintiff expired on 11.11.2006 and her
mother expired on 24.09.2007. Hence, the plaintiff has filed suit
through guardian maternal grandmother of the plaintiff.
3. It is further contended that the defendant Nos. 1 to 3
submitted the Indemnity Bond dated 14.09.2002 to Respondent No.5
for transfer of tenancy in their names. In the said affidavit the
defendant Nos.1 to 3 have deceitfully misrepresented and have
concealed the fact of existence of her father as one of the sons of Safia
Begum. The defendant Nos.1 to 3 by taking undue advantage of fact of
death of her parents and her absence in the suit premises has sought to
conceal the plaintiffs/her father’s entitlement in the suit premises. Even
otherwise, she is entitled to her father’s right in the suit premises by
virtue of a registered Will dated 02.07.2002 executed by Safiya Begum
registered with the Sub-Registrar of Assurance, Mumbai at Serial
No.3354 of 2002, wherein her father has been granted a share in the
suit premises. Therefore, the plaintiff by way of prayer clause (c) of
present Notice of Motion has prayed to direct defendant Nos. 1 to 3 to
deposit the rent in lieu of alternate accommodation received from
defendant No.4 in respect of the suit premises. Hence, the plaintiff has
prayed for allowing Notice of Motion in terms of prayer clause (c).
4. The defendant No.1 failed to appear and file his say to the
Notice of Motion. The defendant Nos. 2 and 3 have filed their Affidavit-
in-Reply to the Notice of Motion and strongly opposed the same by
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submitting that this Court has no jurisdiction to try and entertain the
suit. It is submitted that the original tenant Munir Ahmed Rangari
expired in the year 1981, his wife also expired leaving behind him only
daughter Safiya Begum who expired on 20.06.2003. The said Safiya
Begum has performed two marriages. From her first marriage, she had
three daughter and two sons i.e. defendant Nos.1 and 2 and from
second marriage, she had one daughter and two sons i.e. defendant
No.3 and plaintiff’s father. The father and mother of plaintiff also
expired. The plaintiff born much more after the death of original
tenant. Therefore, the plaintiff was not residing or in this world at the
time of death of deceased tenant. Therefore, the plaintiff is not entitled
to any relief of tenancy right in the suit premises.
5. It is further submitted that Safiya Begum executed a Will
dated 02.07.2022 in respect of the suit premises. However, as per the
law, the tenancy right or share in the tenancy right cannot be
bequeathed by Will. As per the Maharashtra Rent Act only persons
residing with the tenant at the time of his death are protected, the
MHADA only protects surviving heirs. The original tenant died in 1981,
redevelopment process started in the year 2011 and the suit is filed in
the year 2019. Therefore, the suit is hopelessly time barred. The
plaintiff is not entitled to claim any relief as prayed. Therefore, Notice
of Motion be dismissed with costs.
6. The defendant No.4 has filed his affidavit in reply and
opposed the claim of the plaintiff. It is submitted that the defendant is a
public charitable trust. The suit building is part of a cluster
redevelopment scheme comprised of several dilapidated buildings being
undertaken by defendant No.4. Further, it is submitted that defendant
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Nos.1 to 3 have their residential room on the ground floor in the suit
building and have been provided with temporary alternate
accommodation in a transit camp located at Ghodapdep. The defendant
Nos.1 to 3 are still in occupation of Shop No.93. Further, Mumbai
Building Repairs and Reconstruction Board (MBRRB) alone is
responsible for certifying the eligibility of the tenants/occupants and the
plaintiff ought to have filed the procedure laid down in the Resolution
dated 16.08.2010 passed by the Home Department of the Government
of Maharashtra established as eligible tenant/occupant of the suit
building. The plaintiff has without following proper procedure has
approached this Court who does not have jurisdiction to try and
entertain the suit. The relief sought by the plaintiff is beyond the
subject matter jurisdiction of this Court. Therefore, it is prayed that
Notice of Motion be dismissed.
7. Perused Notice of Motion and Affidavit in support of Notice
of Motion. Also perused Affidavit-in-reply filed by the defendant Nos.2,
3 and 4. Heard learned advocate for both the parties.
8. The following points arise for my determination and I have
recorded my findings to each of them for the reasons stated below.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has made out
prima facie case?
In the
Negative
2 Whether the balance of convenience lies
in favour of the plaintiff ?
In the
Negative
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3 Whether the plaintiff has proved that
they will suffer irreparable loss, if the
Notice of Motion is dismissed?
In the
Negative
4 What order? As per the final order
R E A S O N S
AS TO POINT NO.1 :
9. From the rival pleadings and documents on record, it is
reflected that the plaintiff has taken out present Notice of Motion
seeking relief that defendant Nos.1 to 3 be restrained from handing
over the possession of the suit premises to defendant No.4 and
defendant No.4 be restrained from making any payments towards rent
in lieu of alternate accommodation or any compensation or executing
any agreement with defendant Nos.1 to 3 in respect of the suit
premises. The plaintiff has also sought relief to direct defendants to
deposit the rent in lieu of alternate accommodation received by them
from defendant No.4 in respect of the suit premises in this Court.
10. However, it transpired that already the plaintiff’s prayer of
ad-interim relief was rejected and possession of the suit premises is
already handed over to defendant No.4 and defendant No.4 has made
payment towards rent in view of alternate accommodation to defendant
Nos.1 to 3. Since prayer clauses (a) and (b) have become infructuous,
the plaintiff prayed for passing order in respect of prayer clause (c). The
plaintiff has claimed that she has right, title and interest in the suit
premises. Defendant Nos.1 to 3, her uncle are trying to grab the suit
property. The defendant Nos.1 to 3 have submitted Indemnity Bond to
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Respondent No.5 for transfer of tenancy in their name in which they
have misrepresented and concealed the fact of plaintiff’s father, as he is
one of the sons of Safiya Begum. According to the plaintiffs, she being
grand daughter of Safiya Begum has right of tenancy right in the suit
property and is entitled for rent in lieu of alternate accommodation
received by defendant Nos.1 to 3 from defendant No.4.
11. However, as submitted on behalf of defendants that
admittedly, since the death of mother of the plaintiff which occurred on
24.09.2007, the plaintiff is not residing in the suit property. Thus, the
plaintiff was not residing in the suit property at the time of death of the
original tenant. As per the Maharashtra Rent Control Act, only persons
residing with the tenant at the time of his death are protected as tenant.
Admittedly, MHADA has prepared certified tenancy list and defendant
Nos.1 to 3 have been certified as eligible tenants/occupants who are
entitled for permanent alternate accommodation. Therefore, defendant
Nos.1 to 3 have vacated their premises and they have been provided
with temporary alternate accommodation in a transit camp located at
Ghodapdep. The defendant No.4 has paid rent to defendant Nos.1 to 3
which defendant Nos.1 to 3 are required to pay where they are
temporary residing.
12. It is also submitted that tenancy is not hereditary.
Therefore, no relief can be granted to the plaintiff. Though it is
submitted on behalf of the plaintiff that the plaintiff is entitled to the
suit property on the basis of Will executed by Safiya Begum, as
submitted on behalf of defendants as per law, the tenancy right or share
in the tenancy right cannot be bequeathed by Will. Now, it is pertinent
to note that the suit is pending and right of plaintiff in the suit property
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is not yet established. Therefore, at this stage, the contention of the
plaintiff that she is entitled to the rent given by defendant No.4 to
defendant Nos.1 to 3 cannot be accepted. Therefore, I hold that the
plaintiff is not entitled to claim relief as prayed. Plaintiff has failed to
make out
prima-facie case for grant of prayer clause (c) in the Notice of
Motion as prayed. The balance of convenience also does not lie in
favour of the plaintiff. In such circumstances, no irreparable loss would
be caused to the plaintiff, if Notice of Motion is not granted. Hence, I
answer point Nos.1 to 3 in the negative.
AS TO POINT NO.4:
13. In view of findings to Point Nos.1 to 3, I hold that the
present Notice of Motion is devoid of merits and is liable to be rejected.
In the result, I proceed to pass the following order:-
ORDER
Notice of Motion No.753 of 2019 stands dismissed
with costs and disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 04.11.2023 Gr. Bombay.
Dictated on : 04.11.2023
Transcribed on : 09.11.2023
Signed on : 10.11.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/11/2023 At 4.00 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
04.11.2023
Judgment/Order signed by P.O. on 10.11.2023
Judgment/Order uploaded on 10.11.2023
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