Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 965 OF 2018
(CNR NO. MHCC010032332018)
IN
L.C. SUIT NO. 735 OF 2016
Deepak Namdev Salunkhe .. Plaintiff
Versus
Mumbai Municipal Corporation
of Gr. Bombay and Ors. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 13th March 2019
Mr. Ashish Mishra, ld. adv. for defendant nos. 2 and 3,
Mr. R P Singh, ld. adv. for plaintiff.
Mr. Walawalkar, ld. adv. for defendant no. 1/ BMC.
O R D E R
1. This N/m is filed by defendant no. 2 for setting aside the
order dated 26.09.2017 passed by this Court in Nm no. 1337/2016.
Defendant no. 2 Omprakash Gupta has filed his affidavit in support of
Nm contending that in Nm no. 1337/2016 taken out by plaintiff, this
Court has granted relief to the plaintiff against the notice issued by BMC
under sec. 351 of BMC Act. It is contended that on 27.05.2015 notice
under sec. 354 of BMC Act was issued by defendant no. 1 against
plaintiff. On 07.11.2017 defendant/BMC has issued another notice to
plaintiff and defendant asked plaintiff to vacate the suit premises within
7 days as the same is not fit for human habitation. Said notice was
issued on the basis of report of Technical Advisory Committee. Plaintiff
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has challenged notice under sec. 354 of BMC Act by filing suit No.
12191/2017 alongwith Nm. Plaintiff moved the Court for ad interim
relief and same was rejected by the order dated 17.01.2018. As
mentioned in affidavit of defendant no. 2 the building is been pulled
down and Court has held that the building is in dangerous condition
and not fit for human habitation and therefore it will be unjust to carry
on the stay granted for illegal construction which forms the part of the
building in present suit. Hence defendant no. 2 has prayed to make
absolute Nm.
2. Plaintiff Deepak Namdev Salunkhe has filed his affidavit in
reply to Nm contending that the N/m and affidavit filed in its support
are false, frivolous, vexatious, misconceived, bad in law hence N/m
deserves to be dismissed with costs. It is contended by plaintiff that
defendant nos. 2 and 3 did not file their reply to Nm No. 1337/2016
and said Nm is made absolute with the consent of the advocates for
plaintiff and advocate for defendant no. 1 BMC. No relief is granted
against defendant nos. 2 and 3 hence those defendants have no locus
standi to take out present Nm and they are not entitled to get set aside
the order dated 26.02.2016.
3. It is further mentioned in affidavit of plaintiff that suit
premises in LC suit No. 735/2016 and LC Suit No. 245/2018 are
different premises. Suit No. 245/2018 is in respect of room no. 1 of
Janki Niwas Building which is residential premises whereas Suit No.
735/2016 is in respect of shop namely M/s Royal Steel Works and M/s
Royal Wooden Articles. Suit premises of suit No. 735/2016 is outside
of Janki Niwas building, causes of action in both suits are different and
suit premises of both the suits are different. In LC Suit No. 735/2016
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notice under sec. 351 of BMC Act is challenged whereas in Suit No.
245/2018, notice under sec. 354 of BMC Act is challenged which was
issued in respect of room no. 1 of Janki Niwas building. Notice under
sec. 354 of BMC Act has no concern with LC Suit No. 735/2016.
4. It is mentioned in affidavit of plaintiff that in LC Suit No.
245/2018 parties agreed for early disposal of Nm no 4027 /2017 after
filing the reply. As such the ad interim relief was rejected on assurance
of BMC that it will file reply within 23 days thereafter defendant BMC
did not file reply. However order passed in NM no. 4027/2017 has
nothing to do with present suit. It is contention of plaintiff that
already plaintiff has filed photographs of suit property after demolition
of dilapidated portion of Janki Niwas building. Room no. 1 is stable,
repaired and fit for human habitation. With the help of those
contentions plaintiff has prayed to dismiss the Nm.
5. I have heard arguments of advocate Mr. Ashish Mishra for
defendant nos. 2 and 3, advocate Mr. R P Singh for plaintiff and
advocate Mr. Walawalkar for defendant no. 1 BMC. Advocate
Mr.Ashish Mishra argued that due to order dated 26.09.2017 passed by
this Court in Nm no. 1337/2016, earlier order passed in said N/m is
continued. Defendant no. 2 was added in the suit on 28.09.2016.
However, on the date of passing order dated 26.09.2017 no one was
present on behalf of defendant no. 2. It is argued that suit premises
was in dilapidated condition and notice under sec. 354 of BMC Act was
given for vacating said building by all tenants except plaintiff and
redevelopment of building is obstructed due to order dated 26.09.2017
passed by this Court and due to non vacating room by plaintiff. Hence
according to advocate Mr. Mishra it is necessary to vacate order dated
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26.09.2017 so that further development of building in question can
take place.
6. Plaintiff's advocate referred documents annexed to the
plaint alongwith the order passed by Hon'ble High Court in Civil
Application No. 5633/1998 and order passed by Hon'ble Apex Court in
Civil Appeal No. 355356/1999. Advocate Mr. Singh also referred
documents received by plaintiff under Right to Information Act showing
that BMC has not obtained leave from Hon'ble High Court for issuing
disputed notice though appeal no. 650/08 is pending before Hon'ble
High court. It is argued that defendant no. 2 was not party to Nm No.
1337/2016 and for disposing said N/m defendant BMC has given
consent therefore bar under Order 23 of CPC will operate against
defendant no. 2 for setting aside order passed by the Court with the
consent of the parties to said proceeding. Hence according to advocate
Mr. RP Singh N/m taken out by defendant no. 2 is necessary to be
dismissed.
7. BMC advocate Mr. Walwalkar argued that in para no. 10 of
plaint, plaintiff has referred the speaking order passed by BMC in
pursuance of disputed notice but said order is not challenged in the suit.
Hence plaintiff is not entitled for any protection from the Court. It is
further argued that BMC is empowered to issue fresh notice under sec.
351 of BMC Act, if alteration or addition is made in already protected
structure. Advocate Mr. Walwalkar referred documents at page 80 and
82 and argued that in point no. 4 from page no. 80 measurements are
given and therefore measurements given in those documents and
measurements given in disputed notice will have to be considered by
the Court.
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8. In reply advocate Mr. Ashish Mishra submitted that as
defendant no. 2 was not party to N/m no. 1337/2016, after his
appearance in the matter he came to know about the order passed by
the Court and therefore he has challenged said order.
9. At this juncture it becomes necessary to refer here the order
passed by Hon'ble High Court in Civil Writ Petition No. 5663/1988
with Writ Petition no. 5678/1988. In both those suits Smt. Janaklali S.
Gupta was respondent and Omprakash Sukhdev Gupta ( defendant no.
2 of present suit) was brought on record as L.R. of Smt. Janaklali S.
Gupta. In those Writ Petitions the Judgment of RAE Suit No.
733/7771/1965 was challenged. In said suit before Small Causes court
the landlady Smt. Janaklali S Gupta had sought decree of eviction
against Namdev Mahadev Salunkhe the father of plaintiff of present
suit. Trial Court decreed said suit in favour of landlady against all
defendants except defendant nos. 2 and 3 of said suit. Therefore
landlady preferred Appeal No. 251/1976 against judgment and order
dated 20.01.1975 passed by Small Causes Court. Said appeal was
decided by Appellate Court by its judgment dated 13.09.1988.
Appellate Court allowed said appeal and passed decree of eviction
against defendant nos. 2 and 3 also. The order of appellate Court was
challenged in Civil Writ Petition No. 5663/1988 and Writ Petition No.
5678/1988. In those Writ Petitions Hon'ble High Court is pleased to
observe that “ perusal of paragraphs 2 and 3 of the order of Appellate
Court shows that before the Appellate Court only 2 grounds were urged
on behalf of landlady plaintiff: (1) unauthorised subletting by
defendant no. 1 in favour of defendant nos. 2 and 3 and (2) causing
waste. The appellate Court has found in favour of these appellants.
Perusal of plaint however, shows that the case of landlady was that
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defendant no. 1 has unauthorisedly sublet the suit premises to
defendant nos. 2 and 3 i.e. present Petitioners. The suit was filed in
the year 1965. Obviously, therefore, the subletting alleged by the
plaintiff was before 1965. Therefore, even if the case of landlady is
accepted in toto in this regard, the decree of eviction cannot be passed
against the petitioners because of amendment of Sec. 15 of Bombay
Rent Act by Maharashtra 18 Act of 1987. It is further to be seen here
that though the case of the landlady was specifically of unauthorised
subletting, the finding that is recorded by the Appellate Court is of
service tenancy. It was not the case of plaintiff in the plaint that
defendant nos. 2 and 3 were in the employment of defendant no. 1 and
therefore service tenancy was created in their favour, the case of sub
tenancy. Therefore for this reason also the decree passed on this
ground against the petitioners cannot sustain.” With above
observations and other observations, Hon'ble High Court allowed both
the Writ Petitions. The order passed by Hon'ble Apex Court in Civil
Appeal No. 355356/1999 shows that the order passed by Hon'ble High
Court in Writ Petition nos. 5663/1988 with 5678/1988 was challenged
before Hon'ble Apex Court and on perusal of order of Hon'ble Apex
Court it is noticed that Civil Appeal No. 355356/1999 was dismissed by
Hon'ble Apex Court observing that Hon'ble Lordships of Hon'ble Apex
Court do not find any merit in the appeals.
10. By referring above orders of Hon'ble High Court and Apex
Court plaintiffs advocate has tried to point out the Court that defendant
no. 2 Omprakash Gupta is L.R. of original landlady Smt. Janaklali S
Gupta, it is argued that dispute between landlord and plaintiff is going
on since long and any how landlords are intending to evict plaintiff
from suit premises. Therefore according to plaintiff's advocate, taking
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out this N/m is nothing but the effort made by defendant no. 2 for
evicting plaintiff from suit premises on the basis of disputed notice
issued by BMC.
11. I have perused order dated 26.09.2017 passed by my
learned predecessor. Roznama dated 26.09.2017 shows that on that
date no one was present on behalf of defendant nos. 2 and 3. My
learned predecessor has observed in the roznama that as pleadings are
completed, plaintiff has given consent to decide all issues together at
the time of final hearing. With the consent of plaintiff and defendant
no. 1, N/m No. 1377/2016 stands disposed of by continuing earlier
order passed till the decision of the suit. I have further carefully
perused the roznama and it is noticed that on 28.09.2016 my learned
predecessor has passed order to the effect that ad interim relief granted
on 12.04.2016 is continued till decision of preliminary issue. N/m is
kept for hearing after deciding the preliminary issue and matter
adjourned for amendment and for framing preliminary issue. On
careful perusal of record it is noticed that my learned predecessor has
passed order in Nm no. 1377/2016 however defendant no. 2 has prayed
for setting aside order dated 26.09.2016 passed in N/m No. 1337/2016.
Roznama dated 26.09.2017 is already referred by me. Thus it becomes
clear that defendant no. 2 has wrongly mentioned N/m No. 1337/2016
in N/m and in the affidavit filed in support of N/m. On this ground
itself the N/m becomes necessary to be dismissed because this Court
cannot set aside the order passed in N/m no. 1337/2016 because said
N/m was not filed in this suit. Further on perusal of roznama dated
26.09.2017 it becomes clear that BMC who has issued disputed notice
has given consent for continuing the ad interim order passed by the
Court. In such circumstances defendant nos. 2 and 3 who were not
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party to N/m no. 1377/2016 cannot pray for setting aside order passed
by Court in said N/m with the consent of parties of said N/m. In order
dated 28.09.2016 in para no. 5 my learned predecessor has referred
previous litigation between plaintiff's landlord and he has also referred
the judgment dated 10.02.2006 passed by this Court. Said suit was
filed Sukhdev R. Gupta against plaintiff of this suit. As observed by my
learned predecessor said suit was filed for declaration that plaintiff is
trespasser of suit premises and said suit was dismissed. As such it
becomes clear that plaintiff is tenant of defendant nos. 2 and 3 and
their predecessors and defendant nos. 2 and 3 and their predecessors
have initiated litigation against plaintiff for eviction. However they
could not succeed and therefore it seems that now defendant nos. 2 and
3 are intending to use BMC for evicting plaintiff from suit premises.
On this count also I find that N/m filed by defendant nos. 2 and 3 is
necessary to be dismissed. It seems that defendant nos. 2 and 3 are
giving colour of their private litigation to the notice issued by BMC
against plaintiff. I remember that it was argued on behalf of plaintiff
that disputed notice is issued by BMC at the instance of defendant no. 2
as such it becomes clear that defendant nos. 2 and 3 are using BMC for
their own benefit and it is unfortunate that BMC officers also could not
understand the fact that they are being used as weapon to destruct
plaintiff's house which is protected by the orders passed by Hon'ble
High Court and even by Hon'ble Apex Court. Defendant nos. 2 and 3
not only have used BMC as their weapon but they have tried to keep the
gun on the shoulders of this Court also. However defendant nos. 2 and
3 could not understand the fact that the reverse stroke from the guns of
the Court may be much strong and it may destruct the plans of
defendant nos. 2 and 3. For all above reasons I find that defendant nos.
2 and 3 who have not taken care to mention correct Notice of motion
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number in Notice of motion are not entitled to the relief as prayed for.
Hence I proceed to pass following order.
O R D E R
N/m No. 965/2018 stands dismissed/ disposed of.
(K.P.Nandedkar)
Judge,
City Civil Court,
13/03/2019 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
20/03/2019 3.30p.m. Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of
Judgment/Order.
13/03/2019
Judgment/order signed by P.O on 20/03/2019
Judgment/order uploaded on 20/03/2019
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