Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 (NM No. 1393.2020 in Su No 1166.2020)
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1393 OF 2020
IN
L.C.SUIT NO. 1166 of 2020
Mallayya Laxmayya Dulam
Aged, 65 years, Indian Inhabitant,
Presently residing at Om Dattaji
Nagar, Room No. F-21, D.S. Road,
Worli, Mumbai 400018 Plaintiff
V/s
1. Maharashtra Housing & Area
Development Authority
Having its office at 4th Floor, Griha
Nirman Bhavan, MHADA, Kala Nagar,
Bandra (E), Mumbai-400051
Defendants
2. Mumbai Building Repairs &
Reconstruction Board
MHADA, Griha Nirman Bhavan,
Kala Nagar, Bandra (E),
Mumbai 400051.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 10th November, 2020
Appearance:
Mr.Ganesh Murthy with Mr. Jamkhandi advocate for the plaintiff.
None present for the defendants.
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2 (NM No. 1393.2020 in Su No 1166.2020)
ORAL ORDER
This Notice of Motion is taken out by the Plaintiff praying
to direct the defendants to consider his application dated 28.09.2019
for allotment of the suit premises on the strength of allotment letter
dated 21.07.2016 and application dated 28.09.2019 and issue
provisional allotment letter in respect of the suit premises and restrain
the defendant from allotting the same to any other person.
2. The case of the plaintiff in brief is that the plaintiff was the
employee of “Mumbai Textile Mills”, Senapati Bapat Marg, Mumbai-13
from 06.01.1978 to 23.10.2003. He was not having residency premises
and therefore, he applied for it and as per lottery drawn on 25.07.2016.
The plaintiff was allotted residential premises Room No. 1509 at “New
Hind Mill Compound Building No.5-A”, 15th floor, Mazgaon, Mumbai-10.
The plaintiff was required to submits documents of his eligibility within
stipulated period, but because of illness, the plaintiff could not submit
the same. On 28.09.2019, plaintiff sought time to submit the
documents. The plaintiff also visited the office of the defendant on
08.09.2020, but he was informed that his application will not be
considered unless he brings order from the Court. That has given raise
cause of action for filing the suit and asking such temporarily reliefs.
3. The defendants have not appeared and contested this
notice of motion even though they were served with notice.
4. In view of the contentions of the plaintiff and the
submissions made on his behalf, the following points arise for my
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determination with my findings thereon for the reasons recorded
thereunder;
S.No. POINTS FINDINGS
1 Do the plaintiff prove the
prima-facie case ?
No
2
Whether balance of convenience lies in their
favour ? No
3
Whether irreparable loss would be caused to
the plaintiff, if this Notice of Motion is
rejected ?
No
4 What Order? As per Final Order.
R E A S O N S
Point Nos.1 to 3:
5. At the outset, it shall be noted that the plaintiff has asked
the reliefs in this notice of motion which are the substantive reliefs
asked in the suit. Such reliefs cannot be granted as interim reliefs. The
entitlement of the plaintiff to get the premises is in question in the suit.
In so far as, question of granting provisional allotment letter is
concerned, such relief also cannot be granted in absence of inquiry and
proof of the entitlement of the plaintiff.
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6. It is own case of the plaintiff that the claim of the premises
has been disallowed by the defendants holding the plaintiff as ineligible.
As such the plaintiff has to prove his eligibility before the Competent
Authority or before this Court in trial. The order granting provisional
allotment to the plaintiff would amount to predetermination of his
rights without trial. If the plaintiff, succeeds to prove eligibility either
under the scheme, he would be entitled to get decree in his favour.
However, I am unable to find any
prima facie case at this stage to hold
that the plaintiff is eligible mill worker to get the allotment in his
favour. The plaintiff is at liberty to pursue his application before the
competent authority with supporting documents which would enable it
to consider the same and pass appropriate order thereon. There is
noting on record to show that the claim of the plaintiff has been
rejected by the defendant on due inquiry. Therefore, mere contention
that the plaintiff was orally instructed to bring the order of the Court
will not be sufficient to pass an order as prayed for. Therefore, I do not
find prima facie case in favour of the plaintiff and consequently the
question of having balance of convenience or irreparable loss will not
arise. This notice of motion is devoid of merit and is liable to be
dismissed.
7. In view of these reasons, point Nos.1 to 3 are answered
accordingly and as a result of this, the following order.
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O R D E R
The Notice of Motion No.1393 of 2020 is dismissed and is
accordingly disposed of.
(SHIVAJI. R. SALUNKHE)
Judge
City Civil Court,
Date: 10/11/2020. Gr. Bombay.
Dictated on : 10/11/2020
Transcribed on : 10/11/2020
Signed on : 10/11/2020.
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6 (NM No. 1393.2020 in Su No 1166.2020)
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/11/2020 At 12.20 p.m. MRS. V. D. PAHURKAR
UPLOAD DATE AND TIME NAME OF TYPIST
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
10/11/2020
Judgment/Order signed by P.O. on 10/11/2020
Judgment/Order uploaded on 10/11/2020
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