Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.1505/2019
in Suit No. 2712/2009
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.1505 of 2019
(CNR NO. MH CC01039852019)
In
SUIT No. 2712 OF 2009
Gayatri Gangadhar Indulkar ….Applicant
And
Jankibai Sadashiv Ghag ....Plaintiff
V/s.
Malti Murlidhar Indurkar & Ors. ....Defendants
Appearance:
Mr. Manish Upadhyay, Advocate for the plaintiff.
Mr. Bhagve, Advocate for the defendant Nos. 1 to 4.
Ms. Prabhu, Advocate for the defendant No.5.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 30 th November, 2019.
ORDER
1. By this notice of motion the plaintiff has prayed for directing
defendant No.5, to hand over possession of Room No.211, 2nd Floor,
Vishwaraja Darshan, Prabhadevi, Elphinstone Road, Mumbai till the
disposal of the suit.
2. In support of notice of motion, affidavit is filed on record. It
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is submitted by defendant No.3(a)/applicant that her fatherinlaw Mr.
Murlidhar Vithoba Indulkar, was the original occupant and resident of
Room No.29, Gulam Mohammed Chawl, 31, Elphinstone Road, Mumbai
(“the said room”) and was residing alongwith his family since the year
19501951. One Saraswatibai Arjun Ghag, who treated her father in
law as adopted brother was also residing in the suit premises.
3. It is further averred that on 05.02.1977, Bombay Building
Repairs and Reconstruction Board, Mumbai issued notice in the name of
fatherinlaw who was found occupant of the said room for surrendering
of the said room for reconstruction of the said building as per norms of
the said authority. On receipt of the notice dated 05.02.1977, the said
room was surrendered for reconstruction to the Authority and transit
Camp Room No.54, 3rd Floor, in Shivraj Building, Elphinstone, Mumbai
(suit premises) and possession thereof was handed over to fatherinlaw
of applicant being tenant/occupant of the said room. Since then the
applicant alongwith her family members are residing in the suit premises.
Smt. Saraswatibai Ghag, expired on 10.05.1983 and fatherinlaw of
applicant expired on 07.09.2005. After death of fatherinlaw, husband
of applicant alogwith applicant and their children with defendant Nos.2
and 4 were residing in the suit premises. Defendant Nos. 2 and 4 got
married and at present are residing in their matrimonial houses. The
motherinlaw of applicant/defendant No.1 expired on 27.07.2016 and
the husband of applicant expired on 19.05.2017. Since then applicant
alongwith her minor children {3(b) & 3(c)} are residing in the suit
premises.
4. It is further averred by the applicant/defendant No.3(a) that
her fatherinlaw was regularly making payment of the rent of the suit
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in Suit No. 2712/2009
premises and the authority was issuing the receipt thereof. On
15.11.1991, the authority has carried out survey of the building No. 31,
Gulam Mohamed Chawl, for reconstruction of the said building and
prepared list of occupants and tenants. Name of fatherinlaw of the
applicant has been shown at Sr. No.26, however the name of
Saraswatibai Ghag has also been shown in the said list. After death of
fatherinlaw of applicant, motherinlaw of the applicant applied for the
transfer of the suit premises in her name. Eventually, authority has
transferred the suit premises in the name of motherinlaw of applicant.
5. It is further averred that old Gulam Mohammed Building is
known as Vishwaraja Building and it has been constructed by defendant
No.5 in the year 20142015. After completion of said building, authority
has alloted rooms to the original tenants/occupants wherein Room
No.211, 2nd Floor, BWing, Vishwaraja Building has been alloted in the
name of motherinlaw of applicant. She expired on 27.07.2016 and the
husband of applicant on 19.05.2017. As the applicant is not the party to
the present suit, MHADA Authority is not handing over possession of
Room No.211 to the applicant. At present applicant and her minor
children have been impleaded in the suit as defendant Nos. 3(a) to 3(c).
Thus, it is prayed that notice of motion may be made absolute in terms of
prayer clause (a).
6. Learned Advocate for plaintiff and defendant No.5 submitted
that they do not wish to file any reply to the notice of motion.
7. Heard argument of Advocate of plaintiff, defendant Nos.1 to
4, and defendant No.5.
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8. It is vehemently submitted by Advocate of defendant No.1 to
4 that notice of motion is tendered by defendant No.3(a)/applicant. Para
No.10 and 11 of affidavitinsupport of notice of motion reflects that
defendant Nos. 3(a) to 3(c) have been impleaded in the suit by order
dated 04.02.2019 and authority alloted Room No.211 in the name of
defendant No.1. However, before taking possession of the same, she
died on 27.07.2016. Order passed in suit No.4663/1998, plaintiff had
been permanently restrained from dispossessing the defendants there in
from the suit premises without following due process of law. Thus, it is
prayed that notice of motion may be made absolute.
Per contra, it is submitted by learned Advocate of defendant No.5
that in the vacation notice issued in the year 1997, the names of father
inlaw of defendant No.3(a) as well as Sadashiv Ghag was mentioned
therein. Therefore, if relief as sought is granted in favour of defendant
No.3(a)/applicant, prayers in the suit will become infructuous. Further
more, no succession certificate on behalf of defendant Nos. 3(a) to 3(c) is
filed on record. Therefore, it is prayed that notice of motion may kindly
be dismissed.
9. Learned Advocate for plaintiff strenuously submitted that
prayers in the notice of motion are contrary to the prayers of plaint.
Therefore, if prayers are granted in favour of defendant No.3(a), it will
amount to grant of final relief. At this stage of adducing evidence, no
relief can be granted. AnnexureR in the compilation of the document
filed on behalf of plaintiff reflects that as per the lottery result of
defendant No.5, Room No.211 is shown against the name of Savitri
Ghag. For all these reasons, it is prayed that notice of motion may kindly
be dismissed.
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10. Following points arise for determination. Findings against
each of them alongwith reasons are stated as below.
SR. NOS. POINTS FINDINGS
1. Whether the defendant No.3(a) is
entitled for relief as claimed ?
No
2. What Order ? As per final order
REASONS
As to point No.1
11. It is not disputed that old number of suit premises was Room
No.29. It is also not disputed that defendant Nos.1 to 4 in the present
Suit have filed S.C.Suit No.4663/1998 against plaintiff and her husband.
Defendant Nos.1 and 3 died in the year 2016 to 2017 respectively.
Defendant No. 3(a) to 3(c) are legal representatives of deceased
defendant No.3. Suit No.4663/1998, is partly decreed and defendant
Nos.1 and 2 there in (present plaintiff and her husband) are perpetually
restrained from creating obstruction to the possession of plaintiffs
(defendant Nos. 1 to 4 in the present suit) over the suit premises bearing
Room No.54, Shivraj Bhavan No.1, Elphinston Road, Mumbai and also
from dispossessing them from the suit premises expect in due process of
law.
12. Present suit is filed for declaration in suit premises bearing
Room No.54, Shivraj Bhavan No.1, Elphinston Road, Mumbai. As per
Schedule “C” of the document ExhI annexed with plaint, names of
Murlidhar Indulkar i.e. fatherinlaw of defendant No.3(a)/applicant and
Saraswati Ghag, aunt of husband of plaintiff are shown at Sr. No.26 as
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occupier of the building Nos. 31, 33 and 33A at Elphinston Road,
Mumbai. The said dispute of allotment of Room No.54, is dispute raised
in the present suit. It is the contention of defendant No.3(a) that in the
place of old Gulam Mohammed Building, the new building known as
Vishwaraja Building has been constructed by defendant No.5 authority
and the construction of the same has been completed in the year 2014
2015. After completion of said building, defendant No.5 authority has
alloted rooms to the original tenants/occupants of the Gulam
Mohammed Building in the said new building whereby Room No.211, 2nd
Floor, BWing, Vishwaraja Building has been alloted in the name of
motherinlaw of defendant No.3(a). By present notice of motion,
defendant No.3(a) has prayed for direction given to defendant No.5 to
hand over the possession of Room No.211. It is pertinent to note that
suit is filed in respect of Room No.54. Though, it is the contention of
defendant No.3(a) that Gulam Mohammed Chawl is demolished and
Vishwaraja Building has been constructed by defendant No.5 authority,
at this stage, relief prayed in the notice of motion is not maintainable for
want of impleadment of Room No.211 in the suit. Though, as per the
record subsequent event i.e. allotment of Room No.211 occurred during
the pendency of suit, I am of the opinion that at this stage defendant
No.3(a)/applicant has not made any prima facie case in order to grant
relief as sought in the notice of motion. Accordingly, point No.1 is
answered in negative.
As to point No.2 .
13. In view of forgoing discussion, at this stage without
impleadment of Room No.211 in the suit, relief of direction to defendant
No.5 to hand over possession of Room No.211 as prayed for can not be
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granted. Resultantly, for answer of point No.2, I pass the following
order.
ORDER
1) Notice of Motion No.1505/2019 is dismissed.
2) Notice of Motion No.1505/2019 stands disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 30/11/2019
Dictated on : 30.11.2019
Transcribed on : 02.12.2019
Signed on : 07.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
07.12.2019 3.00 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 30.11.2019
Order signed by P.O. on 07.12.2019
Order uploaded on 07.12.2019
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in Suit No. 2712/2009
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