Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1556/2019 ..1.. Suit No.652/2019
CNR No.MHCC010041972019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1556 OF 2019
IN
SUIT NO.652 OF 2019
Parveen Bano W/o Mohamed
Akhlaque Ansari and another .. Plaintiffs
Versus
Mohammed Afzal Abdul Bafati
and another .. Defendants
Minaz Ansari, advocate for plaintiffs
Mr. Jayesh Bhatt advocate for defendant No.1
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 04th May, 2019
ORAL ORDER
Notice of motion is taken out by plaintiffs praying that
defendants, their servants, agents, representatives and/or any
person/persons claiming through them be restrained by order of
temporary injunction from preventing entry and occupation of plaintiffs
in respect of suit premises being Flat No.103, Khadija Tower, First
Floor, 3rd Ghelabhai Street, Byculla, Mumbai08.
It is further prayed that defendants, their servants, agents,
representatives and/or any person/persons claiming through them be
restrained by order of temporary injunction from selling, disposing off,
transferring, letting out, giving on leave and licence, conducting basis or
letting out on temporary basis and/or creating third party rights of any
nature whatsoever in respect of suit premises.
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It is also prayed that pending hearing and final disposal of
present suit execution, implementation and/or effect of an Article of
Agreement dated 11.04.2006 entered, executed by and between
defendant Nos.1 and 2 registered with SubRegistrar, Mumbai vide
document bearing No.BBE1/3452/2/2006 and all that acts committed/
omitted by the defendants and more particularly defendant No.1, be
stayed.
It is further prayed that defendants be restrained by order of
temporary injunction not to evict and/or dispossess plaintiffs from suit
premises without following due process of law.
2. It is the contention of plaintiffs that defendant No.1 is brother
inlaw of plaintiff No.1 and brother of plaintiff No.2. Plaintiff's No.1
father in law and plaintiff's no.2 father namely Abdul Bafati Mohd Shafi
(since deceased) was the original tenant of premises bearing Room
No.9, Ground Floor, Murad Chawl at old Survey No.277, New Survey
No.4/3534 having CTS No.1676, Byculla Division situated at west side
of public passage in old race course, now known as Ghelabhai Lane
No.3, Byculla, Mumbai. Original tenant passed away on 16.12.1998
leaving behind his legal heirs and successors including three sons and
two daughters namely Afzal Ansari (defendant No.1), Sarfaraj Ansari,
Late Akhlaque Ansari (husband of plaintiff no.1) and Zubeda Ishtiyaque
Ansari (plaintiff No.2).
3. It is further contended that an Article of Agreement dated
11.04.2006 entered and executed between defendant No.2 and
defendant No.1 in respect of said old tenanted premises and by virtue of
impugned Agreement old tenanted premises have been redeveloped
under DCR33(7), wherein new premises on ownership bearing Flat
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No.103 on the first floor in building known as Khadija Tower,
admeasuring 225 sq.ft. carpet area in the society namely Khadija Tower
CHS Ltd. at 73rd Ghelabhai Street, Byculla came to be allotted in the
name of defendant No.1. Thus, suit premises has been alloted in the
name of defendant no.1 in lieu of said old tenanted premises. Tenancy
right in respect of old tenanted premises which was standing in the
name of original tenant through which plaintiffs claim their right, title
and interest in the new premises.
4. It is further contended that original tenant's son and plaintiff's
No.1 husband passed away on 22.12.2012 in Mumbai at suit premises.
Defendant No.1 misrepresenting himself to be exclusive claimant of old
tenanted premises to defendant No.2 and thereby entered and executed
impugned Articles of Agreement by virtue of which defendant No.1
claims exclusive ownership to the suit premises allotted in lieu of old
tenanted premises. It is contended that plaintiffs are also legal heirs and
successors of original tenant and they are also entitled for their rights in
suit premises. It is further contended that balance of convenience lies in
their favour and if reliefs sought are not granted they will suffer
irreparable loss which cannot be compensated in terms of money.
Accordingly, they made prayers in above terms.
5. Defendant Nos.1 and 2 filed separate written statement and
made statement that same be treated as their reply to notice of motion.
6. Defendant No.1 resisted the claim of plaintiffs on the count that
substantive suit has not been filed by them and also suppressed fact
about filing of Suit No.211 of 2018 by plaintiff No.2 in this Court and
Suit No.310A of 2018 by plaintiff No.1 in the Civil Court, Jabalpur, MP
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and leave under Order II Rule 2 of CPC has not been obtained. It is
contended that defendant No.1 was residing in the said old tenanted
premises with his late father along with his son and daughter. After
father went away to reside at native place, the rent bill / receipt of the
room was made out in the name of this defendant prior to
redevelopment of property with consent and to the knowledge of
plaintiffs and other heirs. Plaintiffs were aware about transfer of
tenancy/rent bill of old room to the name of this defendant and that the
Agreement for alternate accommodation was executed in favour of this
defendant and possession of suit premises was handed over to him and
all acts were done with the consent of all family members and with
their knowledge.
7. It is further contended that this defendant was tenant in
possession of old premises. So, suit premises has been lawfully allotted
and handed over to him. After receiving possession of suit premises he
was letting out suit premises on leave and licence basis however, later
on he allowed his brother Akhlaque who had came to city from native
place to stay there as Gratuitous licensee. Plaintiff No.1 has been
residing in suit premises as per gratuitous licence granted to her late
husband by him. He has already filed suit No.153 of 2018 for eviction
against the plaintiffs in appropriate court having jurisdiction. As such,
defendant has adopted due process of law and this court cannot pass
any order which will have effect of prejudging the said suit and/or
interfere with administration of justice by the said court in accordance
with law. Accordingly, he prayed for dismissal of notice of motion.
8. Defendant No.2 opposed notice of motion on the count that this
court has no jurisdiction in present matter as plaintiffs are claiming
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entitlement to new permanent alternate accommodation on the basis of
tenancy rights in respect of old premises which has been disputed by
defendant no.1 and only Small Causes Court at Bombay has exclusive
jurisdiction in respect of tenancy right and this court has no jurisdiction
to entertain and try the present suit. It is contended that present
dispute is interse amongst the legal heirs of Mr. Abdul Bafati Mohd
Shafi and these defendants are not concerned with the same. So,
plaintiffs are not entitled to claim any relief against them.
9. Heard respective counsel for parties. They advanced their
arguments in accordance with respective submission of parties.
10. In view of rival contention of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under :
POINTS FINDINGS
1.Whether plaintiffs have got prima facie case? Yes, in relation to
prayer clause (b)
2.Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
Yes, in relation to
prayer clause (b)
3.Whether balance of convenience lies in favour of
plaintiffs?
Yes, in relation to
prayer clause (b)
4. What order? As per Final
Order
REASONS
As to point Nos.1 to 3:
11. Relation between the parties particularly plaintiffs and
defendant No.1 is not in dispute. So also it is not in dispute that father
of deceased husband of plaintiff No.1, plaintiff No.2 and defendant
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No.1 was original tenant of premises bearing room No.9, Ground floor,
Murad chawl, at old Survey No.277, New Survey No.4/3534 having
CTS No.1676, Byculla Division situated at west side of public passage in
old race course, now known as Ghelabhai Lane No.3, Byculla, Mumbai.
It is also not in dispute that suit flat was allotted in lieu of said old
tenanted premises. In above premise, now I consider rival submissions
of parties.
12. There is conflict as to defendant No.1 alone became tenant in
respect of old room No.9 of which deceased Abdul Bafati Mohammad
Shafi, father of plaintiff No.2, defendant No.1 and that of deceased
husband of plaintiff No.1 was original tenant. Their mother was also
residing in tenanted premises. Whether their mother and deceased
husband of plaintiff No.1 also became tenants of the said room after
death of his father namely Abdul Bafati is a triable issue. Certainly, had
they also became tenants of aforesaid old room after death of his father
then during their life time they have also right in suit flat which was
allotted in lieu of old room and plaintiff No.1 in that eventuality after
death of her husband can claim her right in suit flat. It is pertinent to
note that plaintiffs have filed on record copy of rent receipts of different
period which indicate that rent receipts bear the name of deceased
Abdul Bafati Mohammad Shafi. When plaintiffs have filed copy of those
receipts then prima facie it cannot be ruled out that at the relevant time
mother of plaintiff No.2 and husband of plaintiff No.1 might be residing
along with deceased original tenant in old tenanted premises. List of
tenants of the property relating to old room prepared by MHADA shows
the name of deceased Abdul Bafati Mohammad Shafi as occupant of
aforesaid room No.9. It does not show the name of defendant No.1 as
occupant of said room. Even defendant No.2 in their written statement
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mentioned that MHADA had certified Abdul Bafati Mohammad Shafi as
tenant on the basis of rent receipt in respect of said room No.9.
Although plaintiffs have admitted that original tenant Abdul Bafati
Mohammad Shafi died on 16.12.1998 at his native village at Madhya
Pradesh. But, that does not mean that he has surrendered tenancy of
said room in favour of defendant No.1. No doubt, registered Agreement
relating to suit flat has been executed by defendant No.2 in favour of
defendant No.1 on 11.04.2006 but certain triable questions have been
raised by the plaintiffs as discussed earlier which are to be determined
after full fledged trial. Therefore, if during pendency of suit, defendants
are not restrained from creating third party interest in the suit premises
then it will cause multiplicity of proceeding and great prejudice to
plaintiffs. Hence, so far as prayer in terms of clause (b) is concerned
plaintiffs have got prima facie case and balance of convenience also lies
in their favaour. They will suffer irreparable loss if relief in terms of
prayer clause (b) is not granted. Hence, I answer point Nos.1 to 3
accordingly.
13. So far as relief in terms of prayer clauses (a) and (d) are
concerned; defendant no.1 has not disputed possession of plaintiff no.1
over suit premises and he has already filed suit for possession vide Suit
No.153 of 2018 before Small Causes Court, Mumbai against plaintiff
No.1. It shows that defendant No.1 does not want to evict plaintiff No.1
forcibly from suit premises. Therefore, at this stage, there is no need to
grant relief in terms of prayer clauses (a) and (d).
14. So far as relief in terms of prayer clause (c) is concerned;
plaintiffs have approached to the Court after about more than 12 years
of execution of registered Article of Agreement dated 11.04.2006,
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which shows latches on their part. Therefore, I am not inclined to grant
interim relief in terms of prayer clause (c).
In view of discussion made above following order is passed.
ORDER
1. Notice of Motion No.1556 of 2019 is partly allowed and made
absolute in terms of prayer clause (b).
2. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 04.05.2019 Gr. Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
07.05.2019, 4.05 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
04.05.2019
JUDGMENT/ORDER signed by P.O.
on
06.05.2019
JUDGMENT/ORDER uploaded on 07.05.2019
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