Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 1068-18 in L.C.SUIT no.5213-12
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1068 OF 2018
(CNR no. MHCC010034502018)
IN
L.C. SUIT NO. 5213 OF 2012
(CNR no. MHCC010022062012)
Rubina Sayed Shafiq ]... Plaintiff
Versus
Municipal Corporation of Gr. Mumbai & 2 ors. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 05)
Date : 12th February, 2019.
Mr. Bhandari, advocate for plaintiff.
Ms. Ravade, advocate for defendant no. 1.
Mr. Wasim Ansari, advocate for defendant no. 2.
None for defendant no. 3.
ORDER
1. The defendant no. 2 has taken out this motion seeking
rejection of the plaint on the ground that there is no cause of action,
secondly, the suit is barred by the provisions of Maharashtra Rent
Control Act (M.R.C. Act), thirdly, on the ground of nonjoinder of
necessary party and fourthly, on the ground of bar of law of law of
limitation.
2. The learned advocate for the defendant no. 2 submitted
that the plaint does not disclose the cause of action, and that in view of
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2 NM no. 1068-18 in L.C.SUIT no.5213-12
Section 33 of M.R.C. Act and Section 394 of the Mumbai Municipal
Corporation Act (M.M.C. Act) the suit is barred. He further submitted
that the plaintiff has not impleaded original tenant Ashraf Yusuf
Abdulla and therefore, the suit is bad for nonjoinder of a party.
According to him, the alleged agreement was executed in 2004 and the
plaintiff was aware about violation of her rights and therefore, the suit
filed in 2012 is barred by law of limitation.
3. On the other hand, the learned advocate for the plaintiff
submitted that all the points are considered by the learned Predecessor
of this Court while passing order on Notice of Motion. According to him,
the suit is not between a landlord or tenant. The plaintiff claims certain
rights in respect of the suit premises on the basis of deed of assignment
executed by Mr. Ashraf Yusuf Abdulla in the name of the plaintiff.
According to him, there is collusion between the defendant no. 2 and
the officers of the defendant corporation which resulted in revocation of
trade license. He submitted that the period of limitation would be of
twelve years.
4. The learned advocate for the defendant corporation
submitted that in view of Section 394(5) of the M.M.C. Act the suit is
required to be filed before the Small Causes Court.
5. On the premise of these submissions, it is necessary to look
into the averments made in the plaint. In brief, it is the case of the
plaintiff that the suit premises are located on the ground floor of the
suit building which are undisputedly owned by the defendant no. 3
Trust. Earlier, till 1995, Mr. Yusuf Abdulla was the tenant in the suit
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3 NM no. 1068-18 in L.C.SUIT no.5213-12
premises. After his death and upon execution of deed of assignment
dated 07.09.2004, indemnity bond, power of attorney for consideration
of Rs.3 lakhs, by Mr. Ashraf Yusuf Abdulla, the plaintiff acquired the
rights in the suit premises. She was assured that he would be put in
possession of the suit premises. The defendant no. 1 transferred the
trade license in the name of the plaintiff. However, the defendant no. 2
started claiming that he is in use and occupation of the suit premises on
the basis of forged agreement for conducting the business dated
16.09.2004 allegedly executed by Mr. Ashraf Yusuf Abdulla. The
defendant nos. 2 and 3 were fully aware about the aforesaid deed of
assignment dated 07.09.2004. Mr. Ashraf Abdulla lodged complaint
with J.J. Road police station on 22.11.2007. Both the plaintiff and
defendant no. 2 put their locks on the suit premises. The defendant no.
2 on 15.06.2009, took forcible possession of the suit premises. The
defendant no. 1 on 29.11.2007, wrongfully revoked trade license and
transferred it in the name of defendant no. 2. Plaintiff's husband died
on 13.09.2010. The plaintiff on 15.09.2011, requested defendant no. 3
to transfer rent receipt in her name. On 25.09.2011, defendant no. 3
refused to transfer the rent receipt claiming that the defendant no. 2 is
the tenant and therefore, the suit was instituted on 21.06.2012 for the
reliefs of declaration, possession and injunction.
6. The plaintiff has claimed relief of declaration to the effect
that the documents executed by Mr. Ashraf Yusuf Abdulla namely the
deed of assignment, indemnity bond, surrender of tenancy and general
power of attorney in favour of the plaintiff on 07.09.2004 pertaining to
the suit premises are valid and subsisting. So far as, this relief is
concerned, the plaintiff being a pardanashin lady and all the
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4 NM no. 1068-18 in L.C.SUIT no.5213-12
transactions alleged to be done with the good offices of her husband
who died on 13.09.2010, the plaintiff would have the cause of action on
13.09.2010 and secondly, on 25.09.2011, when the defendant no. 2
denied her alleged rights. The suit is filed within 3 years thereafter, on
21.06.2012.
7. So far as, the declaration relating to legality of transfer of
rent receipts by defendant no. 3 in favour of defendant no. 2 is
concerned, the cause of action would arise as aforesaid.
8. So far as, the declaration that the plaintiff is entitled to
possession of the suit premises on the basis of deed of assignment and
other documents dated 07.09.2004 and consequential relief of
mandatory injunction to remove the lock etc. are concerned, the cause
of action would arise as aforesaid.
9. The plaintiff has prayed for further reliefs of prohibitory
injunction that after removal of the lock of defendant no. 2 her
possession should not be disturbed etc. are consequential to the main
reliefs.
10. There is no prayer against the defendant no. 1 corporation
regarding revocation of license and therefore, Section 394(5) of the
M.M.C. Act would have no application and there is no occasion to seek
redress of the grievances made in this suit before the Small Cause Court
in the form of an appeal.
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5 NM no. 1068-18 in L.C.SUIT no.5213-12
11. So far as, the contention raised by the learned advocate for
the defendant no. 2 that the reliefs can not be granted by this Court and
the plaintiff has to file a suit before Small Cause Court etc. are
concerned, after reading the plaint as whole and ascertaining the real
nature of suit and the substance of the prayers made by plaintiff, it
appears that the reliefs claimed do not relate to recovery of rent or
possession or do not pertain to question or claim arising out of the
provisions of the M.R.C. Act or any of its provisions for which the Small
Cause Court alone will have jurisdiction. The plaintiff is claiming certain
rights acquired by her on execution of alleged deed of assignment and
other documents.
12. It is settled position of law that for verifying disclosure of
cause of action, averments made in the plaint alone should be
considered. The contentions raised in the written statement need not be
considered. The strength / weaknesses of averments in the plaint need
not be seen. It is to be seen that right to sue is required to be disclosed
from the plaint by reading the plaint as a whole, as held in the case of
N. Ravindran vs. Ramchandran reported in A.I.R. 2011 Madras 136.
Similarly, for deciding an issue as to rejection of plaint, the averments
made in the plaint alone are germane. The pleas in written statement
are wholly irrelevant at that stage as held in the case of Bajaj Auto vs.
Sandeep Polymers reported in 2004(4) Mh.L.J. 396.
13. So far as, averments in the plaint in this suit are concerned
the special averments made by the plaintiff that the cause of action
firstly arose on 25.09.2011 upon refusal of defendant no. 3 can not be
rejected ex facie. So far as, the pleas regarding misjoinder of causes of
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6 NM no. 1068-18 in L.C.SUIT no.5213-12
action or nonjoinder of parties are concerned they are procedural
objection and will not bar to entertain the suit for the trial and final
disposal, as held by the Hon'ble Supreme Court in the case of Prem
Lala Nahata vs. Chandi Prasad Sikaria reported in A.I.R. 2007
Supreme Court 1247.
14. So far as, the objection relating to bar of law of limitation is
concerned, considering the averments made in the plaint there is triable
issue and an opportunity is required to be given to the plaintiff to prove
her metal. Reliance is placed on the ratio laid down in the case of
Chhotanben vs. Kiritbhai reported in (2018)6 Supreme Court case
422.
15. Similarly, the contention regarding disposal of the suit on
the basis of alleged admission on the part of the plaintiff in favour of
defendant no. 2 etc. are concerned, the same is required to be verified
on merits.
16. In the circumstances, the Notice of Motion is required to be
dismissed. Therefore, the following order is passed:
ORDER
1. The Notice of Motion no. 1068 of 2018 is dismissed.
2. Parties to bear their own cost of the motion.
sd/-
(Dr. M. S. Deshpande)
Judge,
Date : 12.02.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 12.02.2019
Checked by HHJ on : 12.02.2019
Signed by HHJ on : 12.02.2019
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7 NM no. 1068-18 in L.C.SUIT no.5213-12
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 12.02.2019 at 4.36 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
12/02/2019
JUDGMENT/ORDER signed by
P.O. on
12/02/2019
JUDGMENT/ORDER uploaded
on
12/02/2019
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