Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No. 1259 of 2020 in Suit No. 1151 of 2013
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO 1259 OF 2020
IN
SUIT NO. 1151 of 2013
Mahendra Shivaram Chavan …… Plaintiff
V/s
Meena Shivram Chavan and others …… Defendants.
Advocate Mr. Anand M. Waradkar for the plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(HOLIDAY COURT))
(C.R. No. 12)
DATE : 9th AUGUST 2020
ORAL ORDER
The plaintiff, by precipe has sought to take this matter on
board today, showing extreme urgency to hear Notice of Motion
No.1259/2020 which was filed on 13.07.2020. The plaintiff submits
that he has issued prior notices to the defendants by RPAD and through
E-mail, but the report of service on some of the defendants is awaiting
and therefore, it is not possible to file service affidavit. The plaintiff has
therefore, filed an undertaking that he will file the service affidavit on
the next date. The precipe was allowed and the learned advocate for
the plaintiff is heard for the ad-interim relief.
2. The dispute involved in the suit is between brothers and
sisters pertaining to the premises Room No.31, New Haji Kasam Chawl
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No.60A, Curry Road, Mumbai 400 012 which was demolished under the
redevelopment scheme. After the reconstruction, a premises on 17th
floor, Flat No.1711, C Wing, Vighnaharta Building, Islam Compound,
Mahadev Palav Marg, Curry Road, Mumbai-400 012 has been allotted in
lieu of the old premises.
3. According to the plaintiff, the defendant no.1 is her
unmarried sister, who was residing in Room No.24, New Haji Kasam
Chawl No.59A, Curry Road, Mumbai 400 012. The said room was
demolished under the redevelopment scheme and after reconstruction,
a permanent alternate accommodation is given to the defendant No.1 in
lieu of her old premises as Flat No.1710, 17th Floor, Vighnaharta
Building, Islam Compound, Mahadev Palav Marg, Curry Road, Mumbai-
400 012. Other defendants are residing at the addresses given in the
cause title.
4. The plaintiff came with the case that her father Shivram
Chavan was the original tenant and occupant of the suit premises i.e.
old premises No.31 in New Haji Kasam Chawl No.60A, Curry Road,
Mumbai-12. He died on 10.08.2007. The plaintiff was residing with
her father in the suit premises at the time of his death and therefore,
she is exclusively entitled for alternate premises i.e. Flat No.1711. She
has therefore, filed this suit for declaration that she alone is entitled for
possession of the suit premises i.e. Flat No.1711 and her name is to be
recorded as the permanent allottee of the said premises by deleting the
name of the defendant No.1. The reliefs of various directions and
injunction are also sought additionally.
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5. The defendants and in particular, the main contesting
defendant No.1 resisted the suit by filing their written statements. The
issues came to be framed and the trial of the suit started as the plaintiff
filed her affidavit of examination in chief. However, the defendant
Nos.1 to 6 failed to cross-examine the plaintiff and consequently, no
cross-examination order has been passed against them on 03.02.2020.
The matter was adjourned for cross-examination by rest of the
defendants to 18.02.2020. On that date, the defendant No.1 filed
application to set aside no cross-examination order, but she was
advised to take Notice of Motion for that purpose and the matter was
adjourned to 06.03.2020. The defendant No.1 tendered draft Notice of
Motion and leave to register it has been granted. The matter was then
adjourned to 01.04.2020. The lock-down, because of COVID-19
pandemic started and consequently, the matter got adjourned from time
to time and it is fixed on 25.08.2020. In the meantime, the plaintiff
took out the Notice of Motion No.1259 of 2020 on 17.07.2020.
6. It is the contention of the plaintiff that due to COVID-19
pandemic, it is not certain when the physical hearing of the Court will
start. The plaintiff has no roof on his head and he is in dire need of the
suit premises for his residence. He is senior citizen and suffering from
several physical ailments. Therefore, it is necessary for him to have the
suit premises for his residence at least temporarily till the lock-down
period gets over. Some medical papers are produced to substantiate the
contention of physical ailments of the plaintiff. The learned advocate
for the plaintiff submits that this Notice of Motion is required to be
heard and decided at the earliest on humanitarian ground.
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7. The plaintiff has also contended that the defendant No.1
had approached the Hon’ble Bombay High Court with Writ Petition
No.2282/2015. A copy of the order passed in that Writ Petition on
18.04.2017 is produced on record. Paragraph Nos.4 and 5 are relevant
for the purpose of the prayer for ad-interim relief, which read as
follows:-
“4 Having heard the learned counsel for the parties,
we find that in regard to the ownership of flat in
question, a Civil Suit has been filed at the instant of
Respondent No.6. The learned counsel for Respondent
No.6 submits that since the Civil Suit is being
prolonged for a longer time, Respondent No.6 is
objecting of handing over possession to the Petitioner.
The learned counsel for the Petition has submitted a
written undertaking from the Petitioner mentioning
therein that in the event final verdict in City Civil Suit
No.1151 of 2013 which is a suit filed by Respondent
No.6 decided against the Petitioner and City Civil Court
decrees about ownership of the Petitioner and or
possession of the premises in question to be handed
over to Respondent No.6, the Petitioner shall abide by
the said decision and until the decision is given by the
City Civil Court, the Petitioner will not create any third
party rights in respect of the said premises. The said
undertaking is taken on record and marked as “X” for
identification and the same is accepted.
5 The learned counsel on instructions of
Respondent No.6, who is present in person, submits
that in view of the aforesaid undertaking, Respondent
No.6 has no objection if Respondent No.4 gives the
possession of the flat in question to the Petitioner
subject to the undertaking and without prejudice to the
rights and contentions of Respondent No.6 in the said
suit.”
8. It would be crystal clear from the aforesaid order that the
defendant No.1 is allowed to have possession over the suit premises on
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her undertaking and with consent of the plaintiff till final decision of
the suit and she would be bound by the ultimate result of the suit. The
plaintiff must be aware of his requirement of the suit premises and
consciously he had given consent/no objection for such arrangement
during the pendency of the suit.
9. The learned advocate for the plaintiff submits that the
plaintiff is a lay person and was not knowing the ultimate adverse result
of giving such consent. The defendant No.1 after getting possession of
the suit premises is indulging in every tactic to protract the trial of the
suit and even she is not bothered to cross-examine the plaintiff in time.
Thus, the plaintiff is uncertain about the fact whether he would get
justice in near future. His wish to get the suit premises as his own could
remain his dream because of the pandemic of COVID-19 and approach
of the defendant No.1 towards the conduct of the suit. Therefore, it
would be in the interest of justice to allow the plaintiff to have joint
possession over the suit premises temporarily till the decision of the
suit.
10. Having considered the submissions made on behalf of the
plaintiff, I find neither the extreme urgency nor the power nor propriety
to pass any order, which would be inconsistent with the order passed by
the Hon’ble Bombay High Court in Writ Petition No.2282/2015. Once it
is agreed by both the parties that let the defendant No.1 be reside in the
suit premises till decision of the suit and accordingly, the Hon’ble High
Court has allowed the defendant No.1 to have possession over the suit
premises, this Court will have no propriety to pass an order inconsistent
to that arrangement.
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11. According to me, while making such an arrangement, the
Hon’ble High Court has expedited the hearing of the suit directing that
this Court shall take all endeavour to decide this suit as expeditiously as
possible. That order was passed on 18.04.2017. The plaintiff had filed
his affidavit of examination in chief on 15.03.2016 and he was cross-
examined on behalf of the defendant No.1 to some extent on
11.12.2018. Since then, the cross-examination has been withheld for
one way or the other reason. Now, the no cross-examination order has
been passed against the defendant No.1 and the defendant No.1 has
taken out the Notice of Motion to set it aside.
12. Considering this situation, it would be quiet obvious that a
litigant and in particular, a senior citizen would be under impression
that his matter will be prolonged for uncertain period because of
COVID-19 pandemic or because of tactics being played by the defendant
No.1, his matter will not be heard and decided expeditiously. So, better
way to have joint possession over the suit premises and let the Court
decide the suit as early as possible. However, the question would be
whether such a course can be adopted by this Court on the face of the
order of the Hon’ble High Court. The answer would certainly be in the
negative. The only option before this Court is to prosecute the suit
expeditiously and get it decided on merit at earliest. Now, due to lock-
down, the physical hearing of the suit is not possible, but the same can
be prosecuted expeditiously when the lock-down is lifted and physical
hearing of the Court Proceeding will be resumed. Till then, the
situation is beyond the control of the Court, Advocates and the litigants.
All of them are required to be patience till then.
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13. In view of the these reasons, I hold that there is no extreme
urgency to hear and decide the Notice of Motion No.1259 of 2020 much
less the extreme urgency to pass any ad-interim order. However,
considering the directions of the Hon’ble High Court, this matter can be
fixed at an earliest date before which hopefully, the lock-down would be
lifted. Hence, the following order.
O R D E R
1. Prayer for ad-interim relief on Notice of Motion No.1259 of
2020 is hereby refused and the said Notice of Motion is
dismissed.
2. The parties may pray for earliest possible date for further
prosecution of the suit on already fixed date i.e. 25.08.2020 and
proceed with the suit expeditiously.
3. Notice of Motion No.1259 of 2020 stands disposed of.
(SHIVAJI. R. SALUNKHE)
Judge (Holiday Court)
City Civil Court,
Date: 09/08/2020. Gr. Bombay.
Dictated on : 09/08/2020
Transcribed on : 09/08/2020
Signed on : 09/08/2020.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/08/2020 At 1.05 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
(Holiday Court)(C.R.NO.12)
Date of pronouncement of
Judgment/Order
09/08/2020
Judgment/Order signed by P.O. on 09/08/2020
Judgment/Order uploaded on 11/08/2020
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