Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-1304-18 Suit.1256-18
CNR NO. MHCC01 0041332018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1304 OF 2018
IN
S.C. SUIT NO.1256 OF 2018
Prija Yohannan ] .. Plaintiff.
Versus
1. Aria Infra, ]
2. Jaysagar Madanlala Sancheti ]
3. Rahul Chainsukh Sancheti, ]
4. Jos Kulangara, ]
5. Henry Fredick Fernandes, ]
6. Shah Alam Sadre Alam Ansari ]
7. Fellix Monterio, ]
8. Jeremiah CHS Ltd. (SRA Prop.) ]
9. Reliance Infrastructure (East ]
Zone) ].. Defendants.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 26th July, 2018.
Adv. Devesh Malhotra for Plaintiff.
Adv. Kakani for defendant Nos. 1 to 3 and 5 to 8.
Adv. Anita Wasani for defendant No.4.
ORDER
The plaintiff has taken out this notice of motion for
restraining the defendants from dispossessing the plaintiff from Room
No.4 and 4A, situated at Jos Nagar, Sakinaka and directing the
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defendants to remove the obstruction caused to the plaintiff for her
peaceful possession of Room No.4 and 4A and to cancel the changes
made in the names of the electric connections.
2. Plaintiffs case in brief is that she is daughter of M.G.
Yohannan (since deceased), who was tenant in the room No.4 and 4A
at Sakinaka. She is holding slum structure and running classes
alongwith her husband. The defendant No.1 and its partners i.e.
defendant Nos.2 and 3 claimed to be owners of land bearing CTS No.48
(Pt) and structure standing thereon. It is stated that the defendant Nos.
1 to 3 have illegally taken possession of the suit premises, which is
covered under the slum without approaching the competent authority.
The tenancy rights stands in the name of M/s. Mech Fab Engineering
Works, proprietary concern of plaintiff’s deceased father. He was
tenant since 1984 of the defendant No.4. There are four electric meters
in the suit premises. Out of four, only one meter is in the name of
plaintiff’s father. Her father stopped conducting the business and
thereafter she alongwith her husband, since last 5 years is conducting
the coaching classes. A suit is pending between defendant No.4 and 1
before the Hon’ble High Court for declaring the deed of conveyance
dated 06/07/2016 between defendant No.1 and legal heirs of Merciline
D’Souza as void. The defendant No.1 is pressurizing the plaintiff to
vacate the suit premises.. They on 27/08/2017 illegally put lock and
stopped ingress and egress to Room No.4A (first floor). The plaintiff
lodged report. Her father filed declaratory suit bearing RAD Suit
No.1310 of 2017 for declaring him as a lawful tenant and that he
should not be dispossessed from the premises and to open the lock. No
interim relief was granted as the objection to the maintainability of the
suit was raised on 24/01/2018. It was noticed by the plaintiff that all
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the electric meters were transferred in the name of defendant No.2. On
27/01/2018 few eunuchs under the instructions of defendant No.2
entered into the class room and created havoc. They started removing
clothes in front of children. The plaintiff therefore filed the report. The
police carried out the panchanama. The premises were found locked. It
is stated that the suit premises is locked and the study material of the
students is inside the room. The plaintiff has submitted that the
defendant No.2 has caused damage to the suit premises. The plaintiff
has submitted that as the suit premises are locked by the defendants,
irreparable loss is being caused to the plaintiff. Therefore, she has filed
suit and taken out the instant notice of motion.
3. The defendant No.1 to 3 filed reply submitting that the suit
premises falls under slum area and suit is filed by the plaintiff’s father
in the Small Causes Court for the same reliefs which are claimed in this
court. Hence, the present suit is hit by the provisions of Section10 of
Code of Civil Procedure and the plaintiff is doing forum shopping. It is
stated that the defendant No.1 is in possession of the suit premises, as
the father of the plaintiff has handed over keys of the suit premises on
27/01/2018 in presence of office bearers of defendant No.4 i.e Co
operative Housing Society. It is stated that the plaintiff has not made
out any primafacie case and if the injunction is granted, then it will
create obstacle in the rehabilitation of slum dwellers, under Slum
Rehabilitation Scheme. The plaintiff is not entitled for the premises i.e.
Room No.4A. The plaintiff has stated that she is running classes and
the nature of the business shown in the license is of fabrication.
Electric meter was transferred since long with the consent of the
plaintiff’s father. The defendants have submitted that the plaintiff has
not made out any primafacie case. Therefore, prayed for dismissal of
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the notice of motion.
4. The defendant No.4 has filed reply stating therein that the
plaintiff is the tenant and that dispute is pending between her and the
defendant Nos.1 to 3 in Hon'ble High Court.
5. Heard Advocate for the plaintiff and the defendant Nos. 1
to 3.
6. In view of rival pleadings of the parties following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
(1) Whether the plaintiff is entitled
for the reliefs claimed ? : No.
(2) What order ? : As per final order.
REASONS
Point No.1:
7. The plaintiff has come out with a case that her father is a
tenant of the suit premises. She being his daughter is running tuition
classes in the suit premises since last 5 years. The Shops and
Establishment license is about fabrication business and not about the
tuition classes. The plaintiff has also annexed list of students and she
has also filed the photographs showing the room having board of the
tuition classes. As per the defendant No.1 to 3, the plaintiff’s father had
handed over possession of the suit premises on 27/01/2018 in the
presence of member of Jerniah Cooperative Society Limited (SRA
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Proposed). Her father had filed RAD Suit No.1310 of 2017 in the Small
Cause Court seeking declaration that he is tenant and that Room No.4A
was forcibly locked. I have perused the plaint filed in the RAD Suit and
in the present case. The pleadings and prayers are identical except the
incident dated 27/01/2018. The plaintiff was refused the adinterim
relief in the said RAD Suit No.1310 of 2017 by the Small Causes Court
on 24/10/2017. The Advocate for the plaintiff has submitted that the
decision was not on merit, But, on perusal of the said order it can be
seen that the court has considered all the contentions raised by the
plaintiff in the present suit. Therefore, the arguments of the defendant
Nos.1 to 3 appears to be just and proper that plaintiff is trying to do the
forum shopping. The plaintiff could have very well incorporated the
incident dated 27/01/2018 by amendment and prayed for the reliefs in
the RAD Suit No.1310 of 2017.In the said suit the plaintiff’s father is
seeking declaration of his right as a tenant. The plaintiff being legal
heir can very well approach the Small Causes Court. The plaintiff is
not entitled to file the present notice of motion seeking same reliefs
which were referred in RAD Suit. The plaintiff has submitted that the
plaintiffs father was in possession of the suit premises since 1992. As
per her contention her father was tenant and the suit premises is
situated in slum. In the circumstances, it is for the plaintiff to approach
the competent authority and to establish her rights. The Advocate for
the defendant Nos. 1 to 3 has submitted that there is slum rehabilitation
process going on and if the injunction order is passed then the rights of
the many persons will be affected. In this background, the plaintiff
needs to establish her rights before the competent authority. In view of
the factual aspect I find that the plaintiff’s father has filed the suit
before the Small Causes Court wherein the contention raised in the
present suit were considered. Hence, I find that the plaintiff is not
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entitled for the relief as claimed in the present notice of motion.
Therefore, I answer Point No.1 in negative and proceed to pass the
following order.
ORDER
i) The Notice of Motion No.1304 of 2018 is dismissed.
ii) Accordingly, notice of motion is disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 26/07/2018
Dictated on: 26/07/2018
Transcribed on: 27/07/2018
Signed on: 30/07/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
30/07/2018 at 5.00 p.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
26/07/2018
Judgment/Order signed by P.O.on 30/07/2018
Judgment/Order uploaded on 30/07/2018
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