Final Order 1

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IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
MISCELENIOUS APPLICATION NO. 47 of 2020
IN
LONG CAUSE SUIT NO. 3147 OF 2018
Mr. Devang Dinesh Parmar ].. Plaintiff
V/s
Mr. Sanjay Sharma and 6 others. ].. Defendant.
Plaintiff in person present.
Advocate/defendant no.2 in person present.
Advocate Ms. Chandramore for BMC/defendant nos.3 and 4.
None present for defendant nos.1 and 5.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 17th JUNE, 2020
ORAL ORDER
1. In this pandemic of COVID-19, when the entire world is
fighting to combat its spared, our nation is also facing the risk of
rapid speed of its spared and therefore, the social life is regulated by
the Guidelines and Standard Operating Procedure (SOP) whereby,
even the Courts are functioning in two shifts and dealing with
extremely urgent matters and also the matters wherein, the physical
presence of the litigants is not necessary. Under such circumstances,
one litigating advocate has dragged another advocate to this Court
showing the urgency with hope that this COVID-19 situation might
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come to his aid to achieve the goal which might not be achieved in
normal course. The tussle appears to be so serious which even
disregard the threat to their heath and the heath of others.
2. The plaintiff, an advocate in person has filed this
application under Sec.151 of the Code of Civil Procedure, 1908
asking an urgent relief to direct the defendant No. 1 and 2, the
defendant No.2 being a practicing advocate to open the terrace
which is alleged to be common of the building in which, the plaintiff
resides on the fourth floor and the defendant No.1 and 2 reside on
the top i.e. above fifth floor. The purpose to open terrace is to allow
the old people, children and their parents to do some physical
exercise and other activities which will help them to boost their
immune system to fight against COVID-19.
3. According to the plaintiff, the terrace has been
encroached by the defendant No. 1 and 2 and they have locked it,
based on a forged rent receipt made by the defendant No.1 in favour
the defendant No.2 and her mother and have also obtained a decree
in L.C. Suit No.4666 of 2005 in their favour, by practicing fraud upon
the Court with the help of MCGM and the Committee Members of
“Lucy House Bhadut Mandal” i.e a Tenants’ Association. This suit is
filed for setting aside the said decree on the ground of fraud. The
crux of the dispute is that the plaintiff claims that the building is a
trust property and the landlord of this building was H.H. Sardar
Syedna Dawat-E-Hadiya Trust, who had filed two cases in the Small
Causes Court, one in the year 1968 and another in the year 1990 and
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then they have renounced their landlord ship and therefore, the
building was acquired by MHADA in the year 2001 and the
defendant Nos.1 and 2 were not parties to said acquisition
proceedings. The terrace of the building was common for all. The
defendant No.1 on the basis of froged and farbicated Constituted
Attorney made with the help of computer started preparing rent
receipts of Mr. Hassim Safiuddin and Jeevanji Safiuddin and Jivanji
Safiuddin claiming to be their C.A. and he was issuing the same to
the defendant No.2 and both of them thereby have encroached upon
terrace of the suit building and have made their bungalow on it.
4. On the contrary, the defendant Nos.1 and 2 claim that the
entire building is a tenanted property and they have exclusive right
over their premises on the fifth floor and open space of the terrace.
Admittedly, the dispute has been resolved in favour of the defendant
No.1 and 2 by passing a decree in their favour and that decree has
been challenged in this suit.
5. The defendant No.2, Mrs. Uma Sharma, who is also an
advocate, narrated the history of this litigation and also filed synopsis
of her arguments. The dispute relates back to the year 1998 when
Lucky House Bhadut Mandal (the defendant No. 5), which was said
to be formed by the father of the plaintiff, filed Suit No.2844 of 1998
asking access to the disputed terrace. The suit came to be dismissed
on 19.11.2009. The appeal is pending against that decision. Having
failed in the suit, the defendant No.5 made a complaint to MCGM
(the defendant No.3) that the two flats of the defendant No.1 and 2
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on terrace are unauthorized. MCGM issued a notice U/s 351 to the
defendant No.1 and 2, who in turn, challenged that notice by L.C.
Suit No.4666 of 2005. That suit was decreed and the notice under
challenge was quashed and set aside on 26.09.2011. The appeal
against that decision is pending. In the meantime, the plaintiff has
come with this suit asking to set aside that decree calling it to be
obtained by practicing fraud upon the Court.
6. While these appeals are pending, the plaintiff filed Writ
Petition No.381 of 2015 asking to cancel the Municipal License of the
defendant No.1, under which he was running sweets and farsan
business in the shop in the said building. That Writ Petition was
dismissed on 13.04.2015. The Special Leave Petition No. 19141 of
2015 was also dismissed on 14.08.2015. The plaintiff filed another
Writ Petition No.2043 of 2016 asking similar relief but the same was
subsequently withdrawn with liberty to file appropriate proceeding
and by this way, the present suit is filed.
7. Besides these civil proceedings, according to the
defendant No.1 and 2, at the instigation of the plaintiff, criminal
complaint was filed against them alleging that they have forged the
power of attorney of Hassim and Jeevanji Safiuddin calling them to
be landlords of the building and by using the same to be genuine,
they have filed suit for eviction against one of the tenants viz. Vivek
C. Khare in the Court of Small Causes, Mumbai bearing RAE Suit
No.502/855 of 2001. However, that complaint was dismissed on
13.05.2015. The Revision Application No.948 of 2015 filed against
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that decision was also dismissed. The plaintiff took out several Marji
Applications before the Small Causes Court asking several reliefs but
in vain. The plaintiff is facing two criminal complaints under Sec.
354 and 380 of IPC.
8. Heard both the learned advocates. The sum and
substance of the submissions made by the plaintiff-learned advocate
is that the suit building is a trust property and the defendant No.1
and 2 have carried out unauthorized construction on the terrace of
the building by forging the documents and using the same to their
benefit. The terrace is a common place for all the residents of the
building. The plaintiff being one of the residents, he and his family
members have right to use that terrace to take sunbath and to do
some exercise to boost immunity to fight against COVID-19.
Secondly, considering the forthcoming rainy season, the repairs of
the terrace are to be carried out.
9. Per contra, the defendant No.2-the learned advocate
submits that this is nothing but an attempt to take back door entry to
claim the relief which has been already denied on merit. Insofar as
tenantable repairs are concerned, the defendant No.1 and 2 never
obstructed any such repairs which were necessary. The plaintiff has
not even made out any such case for repairs. She therefore, submits
that no relief as sought for could be granted and this application is
liable to be rejected as is devoid of merit.
10. It is far-stretching attempt on the part of the plaintiff to
place reliance on the order passed by the Hon’ble High Court in Writ
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Petition No. 1170 of 2013 which is neither in respect of the suit
building nor dealing with similar issue. The order, no doubt deals
with an issue of terrace but under different circumstances. The
reliance on Sec. 55 of the Maharashtra Rent Control Act is also out of
context. Even otherwise, it is not permissible to go into the merits of
the case while deciding limited issue of access to the terrace on the
ground of urgency and in particular situation.
11. In order to tress the urgency in the matter, the close
scrutiny of the contents of this application discloses the same
contentions as those are made in the plaint and they are the subject
matter of the suit. Whether the decree in question is obtained on the
basis of fraud is not a question that can be dealt with in this
application. The relevant contentions appear in para 20 and 21 of the
application which disclose that the plaintiff want to make the old
people, children and their parents to do some exercise and take
sunbath on terrace to boost their immunity to fight against Corona
Virus.
12. To consider this urgency, it would go without saying that
the Sun is kind enough to bestow light and energy over the whole
world and not restricted to the terrace in question where the plaintiff
can find source of it. As regards exercise, the children are finding
their own ways of exercise and old people, who are more vulnerable
to COVID-19 prefer to remain at home and do some exercise in the
home itself. Under such circumstance, it is difficult to find the reason
as to why the plaintiff is forcing them to go on terrace to do those
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activities which they can do at home? Under this backdrop, I find no
urgency, much less extreme urgency to grant the relief as prayed for.
13. As regards repairs, the defendant No.2 would be right in
her submission that the plaintiff has no case for repairs. There is a
sweeping statement in para 18 of the application that the building is
facing leakage and seepage which is caused due to the deteriorating
condition of the building. In law, it is the duty of the landlord to keep
the building in good and tenantable repairs. There is nothing on
record to show that the landlord was called upon to carry out such
repairs. Only when the landlord fails after notice to carry out such
repairs, the tenants would be entitled to carry the same at the cost of
the landlord. There is no legal presumption that merely because
there is rainy season, there is necessity of repairs. Secondly, the
defendant No.2 makes a statement at the Bar that these defendants
never obstructed the necessary repairs of the terrace. As such, the
alleged requirement of repairs appears to be make-believe-affair of
the plaintiff.
14. In view of the aforesaid reasons, I find absolutely no case
to grant the prayer as made by the plaintiff. The plaintiff should not
have taken the risk in such critical situation of COVID-19 pandemic
to rush to the Court knowing fully well that there is no urgency in
the matter. The attempt of taking chance before the Court is quite
risky both to the plaintiff and the defendants as well who are
constrained to appear before the Court. It may be quite possible for
them to approach this Court as they reside in the same vicinity but
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being the officers of the Court, they should not misuse the Court’s
precious time for such avoidable thing, which otherwise would have
been used for deserving cases.
15. The application is devoid of merit and is therefore, liable
to be rejected. Hence the order.
O R D E R
1. Miscellaneous Application No. 47 of 2020 in L.C.
Suit No.3147 of 2018 is rejected.
2 The cost shall follow the result of the suit.
(S. R. SALUNKHE)
Judge,
City Civil Court,
Date: 17/06/2020. Gr. Bombay.
Dictated on : 17/06/2020
Transcribed on : 17/06/2020
Signed on : 17/06/2020.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/06/2020 At 01.25 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
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Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
17/06/2020
Judgment/Order signed by P.O. on 17/06/2020
Judgment/Order uploaded on 18/06/2020
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