Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.779/2019 ..1.. Suit No.3327/2018
CNR No.MHCC010020272019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.779 OF 2019
IN
SUIT NO.3327 OF 2018
Nisar Ahmed Mohammed Shaikh .. Plaintiff
Versus
Chandrakant Sahdev Dhoke .. Defendant
Mrs. Sarita S. Donde, advocate for plaintiff
Mr. Vishant Rathod, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 19th November, 2019
ORAL ORDER
Notice of motion is taken out by the plaintiff seeking temporary
injunction to restrain defendant, his officers, employees, nominees or
any person/persons claiming by or under him from forcibly
dispossessing him from suit premises bearing Tenement No. B/007,
BLDH No.104, A Type, Mauli Co.op. Soc., Mankhurd, C.T.S. No.138,
Mumbai 43 without following due process of law.
He also prayed for appointment of Court Commissioner to verify
the possession of suit premises with him and his family and to record
the possession of suit premises and also allow plaintiff to take
photographs of suit premises in his possession.
2. It is the contention of plaintiff that he is in possession of
structure at 15/18, BIT Chawl, Tadwadi Saint Marry Road, Mazgaon,
Mumbai10 (in short, ' old structure'). He has been held eligible as per
the scheme of LIG/RGNT/ORS for allotment of tenement having plinth
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area of 272.35 square feet and accordingly, he applied for the same. It
was to be allotted to him on outright sell basis. He has applied under
the scheme of Rajiv Gandhi Nivara Prakalpa in lower income group
under 2% Government Quota. As per letter dated 23.07.2004 issued by
Dy. Chief Officer, Estate Manager, MHADA, it is informed that plaintiff
is eligible in view of Order No.1104/11/2 dated 20.02.2004 for
tenement and tenement No. B/7, Building No.140/A, area 272.35
square feet has been allotted to plaintiff on 18.08.2004 on approximate
tenement sell consideration of Rs.2,99,585/. As per letter dated
07.08.2004 of Dy. Chief Officer, Estate Manager, MHADA tenement
under Sr. No.38, Mankhurd, allotment of tenement has been made and
certificate was also issued in that regard by the concerned Authority.
Allotment letter was issued on 10.09.2004 in favour of plaintiff and on
the same date possession letter has been issued in the name of plaintiff
and his wife. Plaintiff is in possession of various documents showing his
possession over the suit premises. He is in possession of suit premises
since 10.09.2004 when it was allotted in lieu of claim accepted by
MHADA. He is residing in suit premises along with his family since
then.
3. It is further contended that on 08.12.2018 two officers from
MHADA and two other officers along with defendant came to suit
premises and informed plaintiff and his family that possession of
plaintiff is unauthorized and he should remove himself from suit
premises. He has apprehension that defendant and other officers would
forcibly dispossess, remove or evict him from suit premises. Plaintiff is
in settled possession of suit premises and he cannot be removed from
suit premises without following due process of law. In case, relief
sought is refused then he will suffer great hardship and inconvenience.
Accordingly, he prayed in above terms.
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4. Defendant has filed reply and denied the contention of plaintiff.
It is contended that suit is bad for nonjoinder of MHADA in view of
plaintiff’s claim that suit premises has been allotted to him by said
Authority. It is further contended that defendant is no way concerned to
the suit premises and there is no occasion arose for him to visit suit
premises. He is in no way concerned to MHADA. He is not serving in
MHADA. It is further contended that documents filed by plaintiff are
forged particularly electricity bills as Adani Electricity come in Mumbai
since 29.08.2018 but electricity bills of the year 2012 till 2018 were
shown to be issued by Adani Electricity. One Sachin Narayan Kurtadkar
came in the society in the year 2016 showing document that suit
premises was duly allotted by MHADA to him by letter dated
04.01.2016. After service of suit summons defendant met to Sachin
Kurtadkar and called him to show documents and at that time Sachin
Kurtadkar handed over all relevant papers of suit premises to him. In
light of these contention he prayed for dismissal of notice of motion.
5. Perused notice of motion, affidavit in support of it, reply of
defendant, pleadings of parties and documents filed on record. Heard
respective counsel for parties.
6. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings with reasons to
follow as under :
POINTS FINDINGS
1.Whether plaintiff has got prima facie case? …Yes.
2.Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
…Yes.
3.Whether balance of convenience lies in favour of
plaintiff?
…Yes.
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4. Whether appointment of Commissioner is requisite
or proper for the purpose of elucidating any matter
in dispute?
…No.
5. What order? As per final
order
REASONS
As to point Nos.1 to 4
7. Learned advocate for plaintiff has taken me through the
documents annexed to the plaint. Copy of letter dated 23.06.2004
issued by Authorized officer of MHADA to plaintiff shows that his
application for allotment of tenement has been accepted and it was
decided to allot to him tenement No.B7 in Building No.104A of area
272.35 square feet for sale consideration of Rs.2,99,585/. It also shows
that he was held eligible for the purpose of allotment of said tenement.
Copy of certificate dated 07.08.2004 issued by authorized officer of
MHADA reiterated the said fact. Letter dated 07.08.2004 by Dy. Chief
Officer of MHADA shows that plaintiff has deposited Rs.85,000/ as part
payment in respect of allotment of tenement. Copy of allotment letter
dated 10.09.2004 indicate that tenement No. B7, in building No.104A
of Survey No.138, Rajiv Gandhi Nivara Prakalp, Mankhurd, has been
allotted to the plaintiff. Copy of possession letter dated No.10.09.2004
issued by concerned officer of the MHADA shows that possession of suit
premises has been given to plaintiff and his wife Shabana. Copy of
receipt dated 11.12.2015 shows that plaintiff and his wife have
deposited Rs.25,000/ towards service charges. Copy of receipt issued
by Mauli Coop HSG. Soc dated 07.04.2012 shows that plaintiff has
paid to the society Rs.9,400/ towards Municipal tax of suit premises.
Plaintiff has filed copy of electricity bills of different dates to show that
electric meter in suit premises stands in his name. No doubt, certain
bills are of the period prior to taking over of electric supply by Adani
Electricity. Learned advocate for plaintiff submitted that as Adani
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Electricity is also in control of earlier record so those bills were issued in
the name of Adani Electricity. Defendant has contended that those bills
are forged and fabricated. It is the matter of evidence and said fact can
be decided after fullfledged trial. But, so far as from the documents
filed on record by the plaintiff prima facie it is clear that suit premises
has been allotted to him and possession of the same was handed over to
him and his wife and since 2004, he is in possession of suit premises.
Defendant has filed certain documents relating to one Sachin Narayan
Kurtadkar. Those documents speak about Building No.104B. Tenement
No.007. One document shows building No.104AB, Flat No.007 of
Mankhurd. Receipts filed by him shows building No.104AB, Flat
No.007. Those documents do not pertain to Building No.104 A, so
prima facie those documents are not of much significance. More so said
Sachin Kurtadkar does not approach to this court making claim in
relation to suit premises.
8. Plaintiff is claiming relief only against defendant. They have not
sought any relief against MHADA so at this stage contention of
defendant about nonjoinder of MHADA as party to present suit is not of
much relevance. From discussion made above it is apparent that
plaintiff has made out prima facie case. Certainly, if he is dispossessed
from suit premises without following due process of law then he will
suffer hardship and inconvenience which cannot be compensated in
terms of money. Therefore, I hold that balance of convenience also lies
in his favour and he will suffer irreparable loss if relief sought is
refused. Hence, I answer point Nos.1 to 3 in affirmative.
9. So far as relief sought in relation to appointment of
commissioner is concerned; Commissioner cannot be appointed to
collect the evidence. Certainly, plaintiff is seeking appointment of
commissioner in order to ascertain possession over suit premises. For
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that purpose, commissioner cannot be appointed. Therefore, I hold that
it is not necessary and proper to appoint Commissioner as purpose of
same is not for elucidating any matter in dispute. Hence, I answer point
No.4 in negative and pass following order :
ORDER
1. Notice of Motion No.779 of 2019 is partly allowed as under:
Defendant, his employees, nominees or any person/
persons claiming by or under him are hereby restrained by order
of temporary injunction from forcibly dispossessing plaintiff
from suit premises without following due process of law.
2. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 19.11.2019 Gr. Bombay
Typed on : 19.11.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21.11.2019, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
19.11.2019
JUDGMENT/ORDER signed by P.O.
on
20.11.2019
JUDGMENT/ORDER uploaded on 21.11.2019
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