Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1445-2019 in SU 6796-2004
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1445 OF 2019
(CNR NO.MHCC01-003784-2019)
IN
SUIT NO.6796 Of 2004.
(CNR No.MHCC01-005161-2004)
Shivsamarth Chawl Seva Sangh & 19 Ors. }...APPLICANTS.
In the matter between:
Tayabgi Estate Pvt. Ltd. & Anr. }...PLAINTIFFS.
Versus
1.Abid Bahadur Chaudhary }
2.Court Receiver }...DEFENDANTS.
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Shri.R.P.Lote, learned advocate for the applicants.
Shri.Sahoo i/b Federal & Co., learned advocate for plaintiffs.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 15/03/2021)
1. By filing this Notice of Motion, applicants have prayed to
direct the plaintiffs to join the applicants as party-defendants to the suit
and to direct to carry out repair work to the 19 Patra shades of the
applicants situated on the suit property with the help of single brick
wall and bamboos.
2. Read the affidavit filed in support of the Notice of Motion
and reply filed by the plaintiffs. Court Receiver did not appear though
served. Heard learned Shri.R.P.Lote advocate for the applicants and
learned Shri.Sahoo advocate for plaintiffs. Perused the entire record.
3. Learned advocate for the applicants argued that applicants
have purchased their respective Patra structures standing on the suit
property from the defendant for valuable considerations and applicants
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are in long standing possession of their respective structures within the
knowledge of the plaintiffs & the defendant. He argued that defendant
has sold those structures to the applicants by claiming himself as owner,
applicants have paid NA taxes and applicants have independent rights &
title in their respective structures hence, applicants are necessary and
proper parties to the suit due to which, it is necessary to direct the
plaintiffs to join the applicants as party defendants to the suit. He
argued that these structures are constructed way back in year 1993-94
and as such are very old, all the structures are made up of Tins having
cement roofs, condition of the Tins and cement roofs is now very bad,
rodents have eaten the bamboos and there is a trouble of pigs, mosquito
etc. due to which, it is necessary to repair those structures immediately.
He submitted that Hon'ble High Court is pleased to allow construction
of a common latrine on the suit property for use of all the applicants
and no prejudice will cause to the plaintiffs if direction as prayed is
given hence, Notice of Motion may be made absolute.
4. As against this, learned advocate for the plaintiffs argued
that applicants are rank trespassers, they do not have any rights & title
in respect of the structures standing on the suit property and applicants
are raising contrary pleas than the statements made by them in the
undertakings given before the Court Receiver. He argued that it is clear
from the orders passed by Hon'ble High Court that applicants are
allowed to remain in possession of the structures in capacity of agents
only of the court receiver and hence, applicants are neither necessary
nor proper parties to the suit. He argued that applicants had not taken
any steps to implead themselves as party defendants to the suit for a
long period of more than 15 years and now, applicants are trying to
claim ownership over the unauthorized 19 structures which cannot be
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permitted. He argued that under the guise of repairs, applicants are
trying to claim that they are owners of those structures and hence,
Notice of Motion is liable to be dismissed.
5. It is a matter of record that despite taking out Chamber
Summons for adding them as party defendants to the suit, one of the
prayer is made by the applicants in this Notice of Motion that they shall
be made as defendants. Learned advocate for the applicants submitted
at the bar that he would proceed with this Notice of Motion first and he
will argue the Chamber Summons later on. As per the Rules framed
under City Civil Courts Act, Chamber summons has to be taken out for
seeking relief of addition of party. Applicants have already taken out the
Chamber Summons which is pending however, since prayer is made in
this Notice of Motion for adding the applicants as party-defendants to
the suit, said aspect will have to considered, at least for the limited
purpose of deciding the main prayer made in this Notice of Motion for
repair of the structures standing on the suit property.
6. I have gone through the copies of documents and copies of
Orders of Hon'ble High Court which are produced on record by both the
parties. As per Order dtd.20/01/2006 passed in Notice of Motion
No.34/2005, Hon'ble High Court was pleased to appoint Court Receiver
and direction was given to the Receiver to remove all the occupants in
the suit property by taking police help, if required. Admittedly, said
Order is modified in Appeal No.135/2006 as per Order dtd.05/04/2006
and Hon'ble High Court is pleased to direct the Court Receiver to take
formal possession of the suit property with further direction that Court
Receiver shall not dispossess any person found in occupation of any
structure on the suit property as on 08/01/2005. It does not appear to
be in dispute that present applicants were found in possession of the 19
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Patra structures available on the suit property. As per the directions of
the Hon'ble High Court, the applicants have been appointed as agents of
the Receiver of the structures in their respective possession.
7. Copies of undertakings given to the Court Receiver by the
applicants are produced on record by the plaintiffs. It does not appear
from those copies that applicants had claimed independent rights in
respect of the structures in their respective occupation while giving
those undertakings. In the affidavit filed in support of this Notice of
Motion, applicants have contended that they have purchased their
structures from the defendant however, nothing is produced on record
by the applicants in support of their said contention. There is nothing
for accepting the contention of the applicants that plaintiffs have filed
this suit in collusion with the defendant to deprive the applicants of
their rights in those structures.
8. Again, it appears from the statements made in the affidavit
filed in support of the Notice of Motion that applicants are claiming that
they have perfected title in respect of their respective structures by
adverse possession. Said contention of the applicants is contrary to their
contention that they have purchased their respective structures from the
defendant. The contentions raised by the applicants for seeking rights &
title in respect of the structures are contrary to the undertakings given
by them before the Court Receiver. Suit is filed to declare that the lease
deed dtd.24/06/1992 between plaintiffs and defendant is unauthorized
and not binding on the plaintiffs. Applicants are not party to said deed
hence, it does not appear that the controversy involved in the suit
cannot be decided properly in absence of the applicants. Having regards
to those aspects, this court is of the onion that presence of applicants is
not necessary to adjudicate the controversy involved in the suit.
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9. By taking me through the photographs produced with the
Notice of Motion, learned advocate for the applicants submitted that
condition of all the structure is very bad, bamboos have been eaten by
the rodents, holes have been crept in the Tins and cement roof due to
which, all the structures need urgent repairs. At the outset, it may be
stated here that every citizen is entitled to stay in hygienic condition
however, in the matter in hands, copies of undertakings show that
applicants have admitted that they have been allowed to occupy their
respective structures as agents only of the Court Receiver yet, in the
affidavit filed in support of this Notice of Motion, it is contended that
applicants have independent rights, ownership rights in the structures
in their respective use & occupation. Apparently, applicants are seeking
relief to allow/direct repairs of those structures by claiming ownership
rights and not in capacity of the agents of the Court Receiver due to
which, the relief claimed in that regard cannot be granted.
10. Again, applicants are seeking the relief to allow them to
construct brick walls and to replace the old bamboos by fresh bamboos.
It does not appear from the affidavit filed in support of the Notice of
Motion that applicants are seeking relief to replace the existing old &
damaged Tins by new Tins. For erecting brick walls, permission of
Municipal Corporation is required. There is nothing to show that
existing structures are constructed by obtaining permission of the
Municipal Corporation. There is no material in support of the
contention raised in the affidavit filed in support of the Notice of
Motion that wife of one of the occupant in one of the structure expired
due to leptopiris and son of said occupant died of Dengue. Having
regards to the said aspect, this court is of the opinion that applicants
cannot be permitted to erect the brick walls rather they cannot be
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permitted to replace existing Tins by brick walls. Thus, an order.
O R D E R
Notice of Motion No.1445 of 2019 is dismissed.
Date : 15/03/2021. (P.P.RAJVAIDYA)
Dictated on : 15/03/2021. Judge, C.R.No.9,
Checked on : 18/03/2021. City Civil Court,
Signed on : 18/03/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
22.03.2021 at 3.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 15/03/2021.
Order signed by P.O. on 18/03/2021.
Order uploaded on 22/03/2021.
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