Order 1

Order Details: Notice of Motion
Pdf Text: N/M 1247/18 in Su 637/18 1/5 Date : 26.4.2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1247/2018
IN
SUIT NO.637/2018
CNR No. MHCC010029482018
Smt. Shruti Sharidhar Palaw ]...Plaintiff
V/s.
Mr. Bhanu Sakharam Palaw & Anr. ]…Defendants
Adv. Rajeshirke for plaintiff.
Adv. Bhat for defendant no.1.
Adv. Vijay Sharma for defendant no.2.
CORAM : HHJ Shri G. R. Agrawal
C. R. No.03
DATE : 26.4.2018
ORDER
(Dictated in open court)
1. By this motion, the plaintiff is praying for direction to
defendant no.2Builder to give the keys of the suit premises jointly to
plaintiff and defendant no.1 and for injunction to restrain the defendant
no.1 from creating third party interest in respect of suit premises. The
plaintiff has also prayed for injunction to restrain defendant no.1 from
obstructing the ingress and egress of the plaintiff to the suit premises.
2. The defendant no.1 has filed written statement to the suit and
defendant no.2 has filed reply to the motion.
3. Heard learned counsel for the parties. Perused the record.
4. The learned counsel for plaintiff has invited my attention to the
documents filed with the plaint and submitted that the suit premises is
-- 1 of 5 --
N/M 1247/18 in Su 637/18 2/5 Date : 26.4.2018
joint family property of the plaintiff and defendant no.1. He urged that
prior to redevelopment of the suit premises, the plaintiff and defendant
no.1 were residing jointly in the suit premises. He therefore, prayed
that the possession of the permanent alternate accommodation should be
given jointly to plaintiff and defendant no.1.
5. As against this, the learned counsel for defendant no.1 has urged
that plaintiff is not entitled to the permanent alternate accommodation
as defendant no.1 is only occupant of the old premises. He urged that
name of defendant no.1 is mentioned in Annexure II issued by the
Competent Authority and the names of other family members are
fraudulently inserted in the development agreement due to collusion
between plaintiff and defendant no.2. He placed reliance on the
Judgment of Hon'ble Bombay High Court in the case of Sulochana V/s.
Harishchandra 2011(6), MhLJ 477 and urged that mere joint
possession does not entitle the plaintiff for share in the redevelopment
premises.
6. The case of plaintiff in paragraph no.3 of the plaint is that her
father in law Sakharam was the original tenant of suit premises and he
expired in the year 1992. In reply to this pleading, the defendant no.1
has submitted in the written statement that “with reference to
paragraph 1 to 3 of the plaint, this defendant has no comments to offer”.
Thus the original tenancy in the name of fatherinlaw of plaintiff is not
disputed.
7. Learned counsel for plaintiff has pointed out clause 4 of the
development agreement which prima facie shows that the plaintiff along
with her husband and children was residing in the old premises. Below
the names of the family members in clause no.4(a), it is mentioned that
-- 2 of 5 --
N/M 1247/18 in Su 637/18 3/5 Date : 26.4.2018
“save and except his aforesaid family members, no other person/persons are
residing in the exiting premises”. This clause of the agreement prima facie
shows that the plaintiff and her family were residing in the suit premises
before redevelopment. The cheques issued in the name of plaintiff by the
defendant no.2 also prima facie show that she was being paid the said
amount towards transit rent.
8. The allegation of defendant no.1 that the name of plaintiff and
other family members were fraudulently inserted in the development
agreement, cannot be considered at this stage. Unless the parties adduce
evidence, the allegation of fraud and forgery cannot be proved. The
documents on record make out a primafacie case in favour of plaintiff.
It is not case of defendant no.1 that the deceased husband of plaintiff
had relinquished his share in the suit premises. The defendant no.1 is
relying upon 'AffidavitcumNOC' allegedly issued by the husband of
plaintiff giving 'no objection' for permanent alternate accommodation in
the name of defendant no.1. It is admitted in paragraphs no.6(ii) and 9
of the written statement that the plaintiff and her family were residing
in the suit premises. However, it is alleged that they were residing on
temporary basis.
9. In the case of Sulochana V/s. Harishchandra (Supra), it is
recorded in paragraph no.12 that it was admitted position that tenancy
in respect of earlier tenanted premises was in the name of defendant
no.1 in the said suit. The first prayer made in that plaint was for
declaration that the action of transfer of tenancy was illegal.
However, the said prayer was not pressed and therefore, the Hon'ble
High Court has observed that it will have to proceed on the basis
that there is no challenge to the status of the defendant no.1 as a
tenant in respect of earlier tenanted premises.
-- 3 of 5 --
N/M 1247/18 in Su 637/18 4/5 Date : 26.4.2018
10. In the instant case, the plaintiff has come with a specific case
that her fatherinlaw was the original tenant of the suit premises
and the defendant no.1 has not disputed said pleading.
11. The clause no.4 of the development agreement and the cheques
issued in favour of the plaintiff support the case of the plaintiff that she
is a joint owner of the suit premises. The primafacie material on record
indicates that plaintiff and defendant no.1 are entitled to joint possession
of the suit premises. The fact situation in the ruling of Sulochana V/s.
Harishchandra (Supra) is totally different from the present case.
Therefore, said ruling is not applicable to the instant case.
12. By way of adinterim order, this Court had directed defendant
no.2 not to hand over the keys of new premises either to the plaintiff or
to the defendant no.1 during the pendency of this motion.
13. In view of the discussion made above, the plaintiff and defendant
no.1 are jointly entitled for possession of the suit premises. As regards
the apprehension of plaintiff that her ingress and egress will be
obstructed by defendant no.1, the plaintiff can move the Court if any
contingency arises. Hence, following order.
ORDER
1. Notice of motion is partly allowed.
2. The defendant no.2 is directed to give the keys of the suit
premises jointly to plaintiff and defendant no.1.
3. The plaintiff and defendant no.1 are restrained from creating
third party interest in the suit premises.
-- 4 of 5 --
N/M 1247/18 in Su 637/18 5/5 Date : 26.4.2018
4. As regards prayer clause (c) of the notice of motion, the plaintiff
is at liberty to file a fresh motion for said relief in case any
contingency arises.
(G. R. Agrawal)
Judge
City Civil Court,
Date : 26.4.2018 Gr. Bombay.
Dictated on : 26.4.2018
Typed on : 27.4.2018
Signed on : 27.4.2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
27.4.2018 at 3.05 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
26.4.2018
JUDGMENT/ORDER signed by
P.O. on
27.4.2018
JUDGMENT/ORDER uploaded
on
27.4.2018
-- 5 of 5 --