Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NOTICE OF MOTION NO. 1375 OF 2018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1375 OF 2018
IN
L. C. SUIT NO. 769 OF 2018
Mr. Suryakant Aakaram Nagap …… Plaintiff
V/s
Mumbai Housing and Area Development
Authority …… Defendant
Advocate Mrs. Yogini Gurav for the plaintiff.
Advocate Mrs. V. S. Prabhu for the defendant.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 19th MARCH, 2020
ORAL ORDER
This notice of motion is taken out by the plaintiff praying to
temporarily restrain the defendant MHADA by an order of temporary
injunction from evicting or dispossessing the plaintiff from the residential
premises i.e. Room No. 2/209, 2nd Floor, Sidhivinayak Building,
Bhagvanrao Paralkar Marg, Villege Paral,Parel, Mumbai- 400012
admeasuring 180 sq.ft. as described in the plaint (herein after called as
‘the suit premises’).
2. The case of the plaintiff in nutshell is that the suit premises
was originally occupied by one Vinayak Sakharam Sawant. One Kondiram
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Ganu Salvi filed civil suit in this Court contending his possession over the
suit premises, produced bogus documents in support of his contention and
obtained stay to protect his possession in 1993. Said Kondiram Salvi
subsequently sold out the suit premises for consideration of Rs.2, 14,000/-
by assuring the plaintiff that he will get transferred the suit premises in
the name of the plaintiff. He had in fact no transferable title though
possession of the suit premises was delivered to the plaintiff.
3. Thereafter, the defendant MHADA issued letter to the plaintiff
on 24.07.2000 informing its decision to regularize the fraudulent transfer
made to the plaintiff like other such transfers and legalize his possession
over the suit premises on payment of certain charges and on certain
conditions. The plaintiff accordingly deposited an amount of Rs.
2,00,300/- as per the demand of the defendant by pay order dated
01.10.2001. The defendant issued acknowledgment letter dated
03.10.2001 acknowledging the payment and confirmed that the sale
transaction of the plaintiff which was otherwise illegal has become legal as
has been regularized and further confirmed that the possession of the
plaintiff over the suit premises is now legal and valid. Since then the
plaintiff has been paying rent and other charges regularly to the
defendant. After such regularization, the name of the plaintiff standing in
the list of trespassers ought to have been deleted but it is not deleted.
4. It is further case of the plaintiff that on 13.03.2018, the
plaintiff was served with the notice dated 05.03.2018 under Sec. 95 (3)
(A) of MHADA Act thereby alleging that the plaintiff is a trespasser and
illegally occupying the suit premises and he was called upon to vacate the
suit premises within 7 days. The plaintiff immediately relied that notice
with the copies of necessary documents on 14.03.2018. The defendant has
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neither conveyed its decision nor called the plaintiff for personal hearing.
On inquiry with the Designated Officer of the defendant, the plaintiff was
informed that if the plaintiff failed to vacate the suit premises within 7
days, he will be forcibly evicted from the suit premises.
5. This has given the cause of action for the plaintiff to file the
suit and to seek such temporary relief. The defendant has not filed any
reply to this Notice of Motion but Ms. Prabhu, the learned advocate for the
defendant has orally resisted this Notice of Motion contending that the
suit itself is filed without cause of action and therefore, the temporary
relief as sought by the plaintiff is uncalled for. Actually, no action to evict
the plaintiff has been initiated by the defendant and therefore, such relief
as asked by the plaintiff is premature. The plaintiff has not made out a
prima facie case to get such relief in his favour. Mrs. Yogini Gurav, the
learned advocate for the plaintiff has referred each and every document
filed on record and by relying on them she submits that the plaintiff has
made out not only a
prima facie case but the balance of convenience lies
in his favour. Under the circumstance, according to the learned advocate,
if temporary relief is refused, it will cause irreparable loss to the plaintiff
as he would loose his lawful possession over the suit premises.
6. Having anxiously heard the learned advocates for both the
sides and on careful perusal of the documents on record, there appears a
prima facie case in favour of the plaintiff. The documents not only shows
that the plaintiff is in possession of the suit premises but they further show
that the regularization of his sale transaction was offered by the
defendant, an amount of Rs.2,00,300/- was paid by the plaintiff and his
request of regularization has been accepted by the defendant and
possession receipt has been issued to him. The rent receipts, electricity
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bills Ration Card, voters ID card , Bank passbook etc. are the other
documents which would show that the plaintiff is in possession of the suit
premises.
7. It is the only contention on behalf of the defendant that no
action for eviction has been taken by the defendant. If such is the case,
then it is nowhere explained as what was the purpose for issuance of the
notice dated 05.03.2018. In my considered view, this notice has created
reasonable apprehension in the mind of the plaintiff as he is branded as
the rank trespasser in that notice though it
prima facie appears that he is
in lawful possession thereof. The learned advocate for the defendant
submits that no action of eviction of the plaintiff has been taken but she
does not give assurance that no such action will be taken as per the said
notice till decision of this suit. The apprehension as posed by the plaintiff
is therefore required to be taken as reasonable. In absence of temporary
injunction, the plaintiff will be under constant threat of his dispossession.
8. Thus, I find
prima facie case in favour of the plaintiff. The
balance of convenience lies in his favour and as already stated, irreparable
loss would be cause to the plaintiff if he is evicted from the suit premises
as per the notice dated 05.03.2018. In the result, I pass the following
order.
ORDER
1. Notice of Motion No.1375 of 2018 is made absolute.
2. The defendant, its agents, servants, representatives or nay
person claiming through or under it are hereby temporarily
restrained from evicting or dispossessing the plaintiff from the
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suit premises i.e. Room No. 2/209, 2nd Floor, Sidhivinayak
Building, Bhagvanrao Paralkar Marg, Villege Paral,Parel,
Mumbai- 400012 admeasuring 180 sq.ft. as described in the
plaint on the basis of its notice dated 05.03.2018 till the
hearing and final disposal of the suit.
3. Notice of Motion No.1375 of 2018 stands disposed of
accordingly.
(S. R. SALUNKHE)
Judge,
City Civil Court,
Date: 19/03/2020. Gr. Bombay.
Dictated on : 19/03/2020
Transcribed on : 19/03/2020
Signed on : 20/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20/03/2020 At 01.30 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
19/03/2020
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Judgment/Order signed by P.O. on 20/03/2020
Judgment/Order uploaded on 20/03/2020
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