Final Order 2

Order Details: Notice of Motion
Pdf Text: MHCC010034542019
Presented on : 27-03-2019
Registered on : 27-03-2019
Decided on : 08-08-2023
Duration : 4 years, 4 months, 12 days
IN THE COURT OF
COURT 17 ADDL SESSIONS JUDGE AT Mumbai,Mumbai
Presided Over by Shri. S. N. Patil
NOTICE OF MOTION NO.1334 OF 2019
IN
SHORT CAUSE SUIT NO.1717 OF 2018
Mrs.Jyoti Sanjay Patil,
W/O. Late Sanjay Ambu Patil
Age 48, An adult, Indian Inhabitant,
eligible member of Adarsh Nagar,
SRA CHS Ltd., situated at
Tilak Nagar, Opposite Sahakar Cinema,
Chembur, Mumbai-89 ..Plaintiff
Versus
1. M/s. Tirupati Developers
Jyotindra P. Shah
An Adult, Indian Inhabitant, running
Developing business under the name of
M/s. Tirupati Developer, whose office
situated at Parshunath Society,
Ground Floor, Sector-11, Juhu Nagar,
Vashi, Navi Mumbai.
2. Chairmen/Secretary
Adarsh Nagar SRA Co-op. Hsg. Soc.
Of Aarsh Nagar SRA CHS Ltd., situated at
Tilak Nagar, Opposite Sahakar Cinema,
Chembur, Mumbai-89.
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3. Chief Executive Officer,
Slum Rehabilitation Authority,
Anant Kanekar Marg, Bandra,
Mumbai.
4. Joint Registrar, (Co-op.society)
SRA, Mumbai, Anant Kanekar Marg,
Bandra, Mumbai. ..Defendants
_____________________________________________________________
Ld. Advocate Ms.Shilpa Hadwale for plaintiff
Ld.Adv. Ms.Sujata Natekar for defendant No.1
_____________________________________________________________
CORAM: HIS HONOUR JUDGE SHRI S.N.PATIL
DATE: 08/08/2023
ORAL ORDER
1. This notice of motion is taken out by defendant No.1 for
rejection of the plaint under order VII Rule 11(d) of the Civil
Procedure Code. (hereinafter referred to as 'C.P.C.) as suit is barred
by law of limitation. He further submitted that the reliefs claimed by
the plaintiff are falling within the ambit of the Maharashtra Slum
Area (Improvement, Clearance and Redevelopment) Act,
1971(hereinafter referred to as ‘SRA’) and the remedies available to
the plaintiff is to move before the High Power Committee of slum
which is now named as Apex Grievances Committee (Slums) of State
of Maharashtra and therefore specific bar created by the High Power
Committee of slum and hence the civil court has no jurisdiction to try
and entertain any suit where the direct alternate remedy is available
to the plaintiff, therefore, the above suit be rejected u/o VII Rule
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11(d) of C.P.C. Suit is expressed barred and therefore the suit under
Specific Relief Act is not tenable. This Court has no jurisdiction to
entertain and try this suit.
By making these submissions, Ld. Counsel appearing for
defendant No.1 prayed to allow the notice of motion.
2. Plaintiff filed reply to the notice of motion and resisted
objection to the notice of motion. It is submitted that pursuance to
the directions of the court to defendant No.1 to hand over room
under SRA scheme to plaintiff, defendant No.1 with malafide
intention filed this notice of motion ignoring the responsibility of
handing over the room to the plaintiff. She further contended that
she approached to the SRA, but, they failed to hand over the
possession to the plaintiff. Defendant No.1 also not paid the rent.
She further submitted that legal claim of any person is being denied
by the concerned authority, such matter also be entertained u/s. 9A
of C.P.C. She further submitted that SRA has already decided the said
matter and defendant Nos.1 and 2 did not hand over the possession.
Hence, it is her civil right. She further submitted that under order 7
rule 11(d), the rejection of the plaint is bar by any law, but, Court is
empowered or entertain all the issue in the matter wherein any legal
claim is denied by the authority. Defendant Nos.2,3 and 4 have not
taken any objection. Plaintiff is seeking direction from the Court to
hand over the possession. Hence, prayed for rejecting the notice of
motion.
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3. Heard Ld. Advocate for the plaintiff.
4. Defendant No.1’s advocate relied upon following judicial
pronouncements:-
Chhotenben & anr V/s Kiritbhai Jalkrushnabhai
Thakkar and others
2018(5) ALL MR 946(S.C)
Slum Rehabilitation Authority & Anr V/s
Kohinoor (SRA) Co-op. Hsg. Society(Proposed)
and ors
AO No.898 of 2007
decided on 13/09/2013
Naresh Lachmandas Aswani V/s Haridas @
Hardas Lachmandas Aswani & Ors
2016(4)ALL MR 286
Tulsiwadi Navnirman (SRA) Co-operative
Housing Society Ltd and another V/s The State
of Maharashtra and others
Writ Petition No.1326 of
2007 dated 01/11/2007
Naresh Lachmandas Aswani V/s Haridas @
Hardas Lachmandas Aswani and others,
2016(4) ALL MR 286
Sitabai wd/o. Pandurang Yerne V/s Durgabai
wd/o. Khushal Yerne and others,
2016(4) ALL MR 316
Two GR relating to SRA
5. In the case of
Naresh Aswani(cited supra) and
Sitabai
wd/o Pandurang Yerne(cited supra), the question of limitation was
raised and plaintiff should declare that plaintiff’s suit was not within
limitation and plaint was rejected. The issue of limitation is
concerned, it is the mixed question of law and facts. In the cited
case, plaintiff filed suit for injunction but in the case in hand, plaintiff
is claiming possession from defendant No.1 and arrears of rent and
compensation of not providing alternate accommodation. In all other
cited cases, the facts and circumstances are not identical, hence not
applicable to the present case.
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6. Ld. Advocate appearing for the plaintiff filed written
arguments and submitted that after repeated approach to the
concerned authority, the concerned authority has not handed over the
possession of the suit premises. Defendant No.2 also did not hand
over possession of the suit property and not paid the arrears of rent.
On perusal of the record, during the pendency of the trial, the
defendant No.1 filed application and submitted that the possession of
the suit premises was handed over to the plaintiff on 30/11/2021.
Hence, suit is infructous as the main prayer of the suit is already
completed. The plaintiff also admitted the said fact. It appears that
main claim of the plaintiff for possession of the suit premises which
was handed over by defendant No.1 to plaintiff on 30/11/2021,
therefore claim of possession of the plaintiff is infructuos but the
claim of arrears of rent is remained. Plaintiff submitted that SRA
scheme is started prior to 2000 and it was completed, therefore the
question of allotment of the suit premises and any dispute with SRA
comes to an end and SRA scheme is no longer continued in the said
area and therefore, plaintiff is having jurisdiction of this Court as the
matter is of civil nature.
7. Considering the claim made by the plaintiff, structure of
the plaintiff was made eligible in the year 2003, but, no room was
allotted to her. After 18 years, room was allotted to her on
30/11/2021. Plaintiff was homeless for the period of 18 years. Even
after the structure was eligible, the developer demolished the
structure of the slum dwellers and shifted to the transit
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accommodation. Due to the dilapidated condition of the transit
camp, it was demolished and plaintiff became homeless. In the year
2003, the allotment was carried out and the slum dwellers allotted
the room in rehab building. During that process the structure of the
plaintiff was non eligible. Hence, the room in rehab building was not
allotted to her. Plaintiff’s structure was declared eligible for
allotment of process in the year 2003, but, thereafter the room was
not allotted and it was allotted in the year 2021. It also shows that
dispute of transit rent is remained to be decided and defendant No.1
denied the same to the plaintiff. As far as the possession of the suit
premises is concerned, the same is handed over to the plaintiff, but,
the recovery of outstanding rent is remained to be decided. Hence, it
appears that the plaintiff has right to recover the arrears of the rent
from defendant No.1. Plaintiff has not made any claim against SRA
authority. Defendant Nos.2 to 4 also challenged the right of the
plaintiff. In such circumstances, the civil court has right to decide the
question of arrears of rent. In such circumstances, notice of motion is
devoid of merits deserves to be rejected. Hence, I proceed to pass the
following order:-
ORDER
1. Notice of Motion No.1334 of 2019 is rejected and
disposed of.
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2. No order as to costs.
( S.N.PATIL )
08/08/2023 Judge
City Civil Court, Gr. Bombay.
Dictated on : 08.08.2023
Transcribed on : 11.08.2023
Signed on : 21.08.2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
11/08/23 at 11.40 am.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SN Patil
Date of Pronouncement of
judgment/order
08/08/2023
Judgment and order signed by
P.O.
11/08/2023
Judgment/order uploaded on 11/08/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
21/08/23 at 04.34 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI S.N.PATIL
Date of Pronouncement of
judgment/order
08.08.2023
Judgment and order signed by P.O. 21.08.2023
Judgment/order uploaded on 21.08.2023
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