Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion No 800 of 2018
In
L.C.Suit No 2891 of 2011
MHCC010028482018
Mr. Harkesh Motilal Pal ...Plaintiff
V/s
M.C.G.M And Ors ...Defendants
Advocate Shri V.S.Bhadkamkar for plaintiff.
Advocate U.V.Singh for defendant no.3
Advocate Sutar for defendant/MMC present
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 11th July 2018.
(Court Room No.06)
O R D E R
1 Defendant no. 2 has taken out this notice of motion for
deletion of issues nos 4 to 7 and also to frame additional issues as per
schedule.
2 According to defendant, plaintiff has filed the present suit
for declaration, injunction and other reliefs.
3 Plaintiff had taken out chamber summons bearing no.
180/2013 for seeking amendment in respect of subsequent events after
demolition of suit premises. Defendant had filed reply . This court has
allowed the chamber summons. Thereafter, defendant had filed writ
petition no. 11687 of 2014 before Hon'ble High Court, Bombay.
Hon'ble High Court disposed of the writ petition. Thereafter, plaintiff
amended the plaint. Defendant has filed additional written statement
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on 30/1/2017.
4 Defendant has given draft issues on 1/4/2017. This court
has framed the issues. However, this court has not considered the draft
issues filed by plaintiff. Plaintiff in amended plaint in para no.16(a) has
challenged the transfer of tenancy in favour of this defendant. Further
plaintiff has not given notice U/s 527 of the MMC Act. Thus these
issues are necessary for the determination of the suit. According, to
defendant no.3 following additional issues may kindly be framed:
1) Whether Plaintiff proved that the transfer of tenancy in favour of
Defendant No.3 is a subsequent event?
2) Whether Plaintiff proved that the Suit is maintainable in absence
of Notice U/s 527 of BMC Act?
3) Whether Plaintiff proved that, the plaintiff and his family was
residing alongwith Defendant No. 34 in the Suit premises?
40 Whether Plaintiff proved that, the tenancy transferred in favour
of Defendant No.3 is sham, illegal and void abinitio?
5 Plaintiff has filed reply and resisted the application.
According to plaintiff, defendant is deliberately trying to delay the
proceeding. Plaintiff has brought this aspect of intentional delay to the
notice of Hon'ble Bombay High Court in A.O. no 20/2016. Further
defendant no 3 had taken an objection about the jurisdiction of this
court on the basis of non issuance of the notice. Accordingly
preliminary issue U/s 9A was framed. This court has held that this
court has jurisdiction to try the suit . Defendant has prolonging the trial
of the suit. The issues framed by this court covers the controversy
between the parties. Hence prayed to dismiss the notice of motion.
6- I have heard Shri U.V.Singh advocate for defendant no.3
and Shri V.S.Bhadkamkar advocate for plaintiff.
7- Shri U.V.Singh Adv for defendant no. 3 has submitted that
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this court has not considered the draft issues filed by defendant. The
plaintiff has not given notice U/s 527 of the MMC Act therefore, this
court has no jurisdiction to try the suit. Plaintiff has made amendment
therefore, it is necessary to frame issues in view of the amended plaint
and written statement. Therefore, he prayed to delete issue nos 4,5,6 7
and frame additional issues as per the schedule.
8 Shri V.S.Bhadkamkar advocate for plaintiff has submittd
that the suit is time bound by Hon'ble High court and after hearing the
issues are framed after filing of the additional written statement by
defendant. He has invited my attention towards the pleadings and
according to him, there is no necessity to delete the present issues and
to frame additional issues. He further submitted that defendant has
prolonging the hearing of the suit and he prayed to dismiss the notice
of motion.
9 Plaintiff has filed the present suit for declaration, injunctin
and other reliefs. Defendant nos 1 & 2 are the Municipal corporation
for Gr. Mumbai. Defendant no 3 is the uncle of plaintiff. From the
perusal of plaint it appears that there is dispute between plaintiff and
defendant no. 3in respect of house situate at B.M.C Chawl, no. 1,
House no 5, Sion Koliwada, Mumbai. Plaintiff has specifically alleged
that his grand father was the original tenant of B.M.C. However,
defendant with intent to deprive him from the suit property got
prepared the false documents. Now, the suit property is under
development. The plaitniff's name is not appearing in the annxture and
accordingly claimed his right in the tenancy of the suit premises.
10 Whereas according to defendant no 3, plaintiff has no right
in the suit premises. Defendant no. 3 is alone tenant of the suit
premises and the same is duly transferred to him.
11 It is to be noted that during the pendency of the suit the
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suit premises is demolished. Plaintiff has brought this subsequent event
by amendment. It further appears that defendant had filed writ petition
in the Hon'ble High Court. The said writ petition is disposed of by the
Hon'ble High Court, Thereafter on 30/1/2017, defendant no.3 has filed
written statement. Thereafter, after hearing of both the sides, my Ld
Predecessor framed following issues:
1 Does the plaintiff prove that his family and he were in occupation
of the suit premises being room No. 5, BMC Chawl No.1, Sion
Koliwada, Sion (E) Mumbai400 022 when it was demolished by
defendant No.4?
2 Does the plaintiff prove that he had a right in the suit premises
alongwith defendant no.3 as a joint occupant and tenant thereof?
3 Does the plaintiff prove that he is also entitled to a permanent
alternate accommodation in lieu of the since demolished suit
premises?
4 Do defendant Nos 1 & 2 prove that they had transferred the suit
premises in the name of defendant No.3 by following the due
process of law?
5 Does defendant No.3 prove that he was residing in the Suit
premises with his family to the exclusion of the father of the
plaintiff and subsequently, the plaintiff and his family?
6 Does defendant No.3 prove that the BMC, validly, transferred the
suit premises standing in the name of his father on his name.
7 Does defendant No.3 prove that he is entitled to the alternate
permanent accommodation received by him in lieu of the since
demolished suit premises to the exclusion of the plaintiff?
8 Does defendant No.4 prove that it demolished the suit premises
by following the due process of law?
9 Do the defendant prove that the is suit time barred and therefore,
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beyond limitation?
10 Is plaintiff entitled for declaration of cotenant in the respect of
suit premises?
11 What order and decree?
It is the specific contention of defendant no. 3 that issue no. 4 to
7 are not necessary and the suit is not maintainable for want of notice.
12 I have perused the issues and the proposed issues as per
schedule filed by defendant no.3. However, plaintiff has sought urgent
relief of injunction and the dispute is mainly between plaintiff and
defendant no.3. It appears that considering the material preposition(in
respect of tenancy) affirmed by plaintiff and denied by defendant No.3.
issues are framed. Issue nos. 4 to 7 are necessary to determine the
controversy between the parties. Further I find that proposed additional
issues are not necessary in the present suit, Hence, the notice of motion
devoid of merits and accordingly I pass the following order:
ORDER
1 Notice of Motion No. 800/18 is hereby dismissed with costs.
2 Notice of motion is disposed of accordingly.
(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 4.40p.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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