Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft Notice of Motion
In
Suit No. 605 of 2018
Mohammed Yunus Ismail Shaikh & Anr ...Plaintiffs
V/s
Salim Abdul Rehman Shaikh & Ors ..Defendants
Advocate Mr.Mishra for plaintiff
Advocate Mr. Mali for Defendant/BMC
Advocate Mangesh Parte for defendant no.4
Advocte Chitnis for defendant no.1
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 11th July 2018.
(Court Room No.06)
O R D E R
1 Plaintiffs have taken out this draft notice of motion for the
following reliefs:
a) Pending the hearing and final disposal of the suit, the Defendants
and/or anybody claiming through them, shall be restrained by an
order and injunction of this Hon'ble Court from creating any
third party right and/or inducting any third person in the suit
premises or any part of the suit premises.
b) Pending the hearing and final disposal of the suit, this Hon'ble
Court be pleased to pass temporary order and injunction thereby
restraining the transfer of tenancy in respect of the suit premises
in favour of the Defendant no.1 herein and/or anybody claiming
through the existing tenant on record of the Defendant No.2
c) Pending the hearing and final disposal of the suit, this Hon'ble
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Court be pleased to appoint a fit and proper person as the
Receiver with all the powers under order XL, Rule 1 of the
Code of Civil Procedure, 1908 for the suit properties and
to partition the same by metes and bounds and to do the
needful.
2 Defendants have filed their affidavit in reply hence, with
the consent of both the parties this notice of motion is finally disposed
of.
3 Plaintiffs and defendant no.1 are the tenants in common in
respect of the premises i.e. room no. 4A situate at 65, Hari Jairam
Chawl, 1st floor, Maulana Azad Road, Agripada, Mumbai400
011(herein after same is referred as suit premises). Defendant no. 2 is
the Municipal Corporation of Greater Mumbai, who is landlord of the
building where the suit premises is situated. The defendant no. 3 is the
Cooperative Housing Society formed by tenants/occupants of the 65,
Hari Jairam Chawl,. Defendant no. 4 is developer appointed by
defendant no. 3 for redevelopment of said chawl.
4 One Smt. Joharabai W/o Dawood Chotu was the principal
tenant of room No. 4. Ismail Shaikh Abdul Karim was son of said Shri
Dawood Chotu. The said Ismail Shaikh Abdul Karim was residing with
Joharbai in room no. 4. He had five sons. Plaintiff no. 1 and father of
defendant no.1 are the sons of said Ismail Shaikh Abdul Karim.
Thereafter, the said room no. 4 was split in room no. 4 and 4A. Plaintiff
no. 2 is the son of plaintiffs brother. Plaintiffs were in joint possession
of the suit premises alongwith other family members. Thereafter,
plaintiff no. 1 had gone to Saudi Arabia for employment. However,
whenever he used to visit India he had stayed in room no. 4.
5 According to plaintiff, one of the legal heirs of said Ismail
Shaikh Abdul Karim namely Abdul Rehman, father of defendant no.1
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applied for transfer of tenancy in respect of said room no. 4A in his
name from the name of Smt. Joharabai W/o Dawood Chotu. Plaintiffs
were not aware of the alleged application of transfer of tenancy of
room no. 4A in favour of Abdul Rehman Ismail Shaikh. Said Abdul
Rehman died on 30/12/2014 and it appears that thereafter the said
room no. 4A has been transferred in the name of his widow namely
Farzana.
6 In the year 2017, plaintiff no. 1 came back to India
permanently. He came to know that the said Hari Jairam Chawl was
under redevelopment. The said chawl was demolished. Plaintiffs were
under bonafide intention that they will get an alternative
accommodation and also the rights in the newly constructed building.
However, defendant no.1 gave evasive replies. Thereafter, plaintiffs
made inquiry and they came to know that the tenancy is transferred to
Abdul Rehman Ismail Shaikh on 12112010 and after his death, in
favour of his widow Farzana Abdul Rehman Shaikh.
7 Plaintiff also came to know that Abdul Rehman has
executed false and bogus documents and get transferred the tenancy in
his name. Abdul Rehman has suppressed the fact that plaintiffs have
also right in the suit premises. Plaintiffs have 1/5th share in the suit
premises. Defendant nos 2 & 4 are in hurry to transfer the
accommodation to the defendant no. 1. Hence, prayed to grant interim
relief in terms of prayer clause (a) to ( c) of the notice of motion.
8 Notice is served to defendants. Defendant no. 1 filed his
affidavit in reply. Defendant no. 2 Municipal Corporation filed affidavit
in reply of its officer Gautam Kirtikar.
9 Both the defendants have commonly denied that plaintiffs
have 1/5th share in the suit premises. Defendants denied that plaintiffs
are entitled for interim relief.
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10 According to defendant no.1 plaintiffs have no concerned
with the suit premises. Plaintiffs never made any payment of rent or
taxes to MCGM or BEST. Defendant no 1's father Abdul Rehman Ismail
Shaikh was in use, occupation and possession of separate room
admeasuring 69.15 sq ft. and he had made an application to MCGM for
splitting of tenancy of room no.4. Defendant no 1's father was in
possession of the suit premises from 1967. He had driving license and
all other documents on the address of the suit premises. Thereafter,
defendant/corporation had accepted the defendant no.1's father as a
tenant. Defendant no. 1's father has paid rent to the corporation.
Thereafter, defendant no. 4 undertook to redevelop the said chawl.
Accordingly, the officers of the defendant made inspection and
thereafter the name of defendant no.1's father is entered in the
annextureII
11 The other persons namely Rafiq Ahmed and others had
filed writ petition in the Hon'ble High Court in respect of the said
chawl. However, the Hon'ble High Court dismissed the writ petition.
Plaintiffs have no concerned with the suit premises. The name of
plaintiff no.2 is entered in the ration card at his request to obtain the
passport however, plaintiff resides at Mumbra. Therefore passport
authority has also rejected the passport to the plaintiff no.2 on the
address of suit premises .
12 One Joharabai was tenant in respect of room no.4. She was
never tenant of room no. 4A. Hence, amongst these grounds defendant
no.1 prayed to dismiss the notice of motion.
13 According to defendant no.2, on 24/6/2009, Shaikh Abdul
Rehman made application to these defendants for transfer of tenancy
in respect of the suit premises i.e. room no. 4A in Hari Jairam Chawl,
Shaikh Abdul Rehman has also annexed affidavit of Smt. Joharabai
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W/o. Dawood Chotu dated 23/7/1992. He produced the other
documents and accordingly the suit premises is transferred to Shaikh
Abdul. Thereafter, the suit premises was transferred in the name of his
wife Farzana. The defendant corporation has transferred the tenancy
after verification of the documents. Hence, prayed to dismiss the notice
of motion.
14 From the rival contention of both the parties following
points arise for my consideration to which I record my findings thereon.
POINTS FINDINGS
1 Whether plaintiffs have made
out prima facie case?
In the negative
2Whether balance of
convenience lies in favour of
plaintiff ?
In the negative
3 To whom irreparable loss will
be caused if injunction is granted?
To defendant no.1
4 What order? As per final order
15 I have heard Shri Mishra advocate for plaintiff and Shri
Mali for BMC and Shri Chitnis advocate for defendant no. 1.
16 Shri Mishra advocate for plaintiff has submitted that
plaintiffs and defendant no.1 are the tenants in common. Plaintiffs
have 1/5th share in the suit premises. Plaintiffs have documents on the
address of suit premises. Plaintiff no. 1 was temporary out of India for
employment. However, whenever he came in India, he resided in suit
premises. Defendant no.1's father has prepared the false documents
and got transferred the tenancy in his name. Thereafter, the same is
transferred in favour of his wife Farzana. He further submitted that
plaintiffs have ration card and other documents on the address of the
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suit premises. All other legal heirs except plaintiffs have given consent
to the father of defendant no.1 to get transfer tenancy in his name. The
plaintiffs have right in the suit premises. Now suit premises is being
developed by defendant no.4. He further submitted that defendant will
create third party interest and also transfer the tenancy in favour of
defendant no.1. Hence, he prayed to allow the notice of motion.
16 Shri Mali advocate for defendant/ corporation has
submitted that plaintiffs have no concern with the suit structure. The
suit premises i.e. room no. 4A is a separate room. Defendant no. 1's
father had acquired the tenancy right in suit premises. After his death
the tenancy is transferred in favour of defendant no.1. Now, the suit
premises is being developed by defendant no.4. If injunction as prayed
is granted then the entire development work will be stopped. Hence, he
prayed to dismiss the notice of motion.
17 Shri Chitnis advocate for defendant no.1 has submitted
that Joharabai has no relation with the plaintiff or defendant nos. 1's
father. Plaintiff no.1 was residing out of India and plaintiff no.2 was
residing at Mumbra . To get the passport, name of plaintiff no.2 has
included in the ration card at the address of the suit premises. He
further submitted that defendant no.1's father was separate tenant of
the suit premises. After his death the suit premises is transferred to his
wife's name Farzana. Other persons had also filed writ petition in the
Hon'ble High Court however, the said writ petition is dismissed. He
prayed to dismiss the notice of motion.
18 We are at interim stage, hence, plaintiffs have to prove that
prima facie case, balance of convenience in their favour and
irrepressible loss in case refusal of injunction. The plaintiff has to prove
that plaintiff no. 1's father was the tenant of the suit premises and
plaintiffs have 1/5th share in the suit premises.
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19 I have perused the documents filed by plaintiffs and
defendant no.1. It is true that the name of plaintiff no.2 is appearing in
the ration card on the address of the suit premises. However,the name
of plaintiff no.2 is appearing as a family member of deceased Shaikh
Abdul Rehman. The tenancy is transferred in favour of Shaikh Abdul
Rehman on 3/11/2010. According to defendant corporation, said
Joharabai has given the consent to Shaikh Abdul Rehman and after
compliance of documents by Shaikh Abdul Rehman the tenancy is
transferred in his favour.
20 In the plaint, plaintiffs have specifically contended that
Smt. Joharabai W/o/ Dawood Chotu was the principal tenant of room
no. 4. It is further contended that plaintiff's father Ismail Shaikh Abdul
Karim was son of Shri Dawood Chotu. Further in the course of
argument it is submitted by both the parties that Joharabai had no
relation with plaintiff or defendant no.1. However, Joharabai was the
tenant of room no. 4. Here in the present suit the disputed premises is
room no. 4A.
21 It is to be noted that from the documents produced by
defendant no.1, it appears that the suit premises is duly transferred in
the name of father of defendant no.1. After his death the suit premises
is transferred in the name of his widow Farzana. Plaintiffs have not
produced any documents at this stage to show that they have right in
the suit premises. The suit premises is demolished and work of
redevelopment is in progress. Hence, prima facie case it appears that if
injunction as prayed is granted then irreparable loss will be caused to
defendant no.1. Plaintiffs have no prima facie case and balance of
convenience does not lie in their favour. Hence, I answer the points
accordingly and pass following order:
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ORDER
1 Draft Notice of Motion is hereby dismissed.
2 Notice of motion is disposed of accordingly.
3 Draft NM be registered for statistical purpose.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 11/07/2018
Typed on : 12/07/2018
Signed by HHJ. :13/07/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
13/7/2018 at 4.37p.m
Mrs. S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
11/07/2018
JUDGEMENT/ORDER signed by
P.O. on
13/7/2018
JUDGEMENT/ORDER uploaded
on
13/7/2018
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