Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.1437/20
MHCC010044132020
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 1437 OF 2020
IN
S.C. SUIT No. 655 OF 2014
1. Singdha Vijay Das and Anr. … Plaintiffs.
VERSUS
Vijay Khetramohan Das … Defendant.
Appearance
Mr. Mahamuni, learned Advocate for the plaintiffs.
Ms. Sujata Shikre, learned Advocate for the defendant.
CORAM : HHJ SHRI. R.A. SASNE
(C.R.NO.62)
Date : 13th July, 2022
O R D E R
This notice of motion has taken out by the plaintiffs under
Order 39 Rule 1 and 2 requesting to restrain the defendant by an order
of interim injunction from dispossessing the plaintiffs from the suit flat
and from creating third party interest therein.
2. In brief the plaintiffs' case is as under:
The plaintiff No.1 is the wife of defendant and plaintiff
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No.2 is their son. Plaintiff No.1 and the defendant are the owners of
suit flat i.e. flat No.201, 2nd floor, Dattachaya building previously known
as Joshi Building, Plot No.5, CTS No.1037, Friends Colony, Nahur
Village, Bhandup (E), Mumbai 400 042. The plaintiffs and defendant
are residing in the suit flat. Plaintiff No.2 is in service at Bangalore, he
occasionally visits the suit flat. The plaintiffs are taking care of
defendant for his day to day requirements. The defendant is alcoholic
person. He is not doing any job. On 13.02.2014, the defendant tried to
dispossess plaintiff No.1 from the suit flat. The defendant is attempting
to give the suit flat on leave and licence basis. The defendant is
harassing the plaintiffs and wants to give it on leave and licence basis.
The plaintiffs apprehend that the defendant may dispossess them from
the suit flat and therefore, he shall be restrained by an order of interim
injunction against alienation and dispossession of the plaintiffs from the
suit flat.
3. The defendant by an affidavit in reply resisted this notice of
motion. He denied the contentions made in the suit and notice of
motion. He admits the relationship with the plaintiff and it is his
contention that the plaintiffs are not residing in the suit flat. It is his
further contention that he was occupying old premises i.e. room No.1,
plot No.5, Joshi Building. In the month of June, 2005 the said old
premises was handed over to the Developer M/s. Parimala Builders for
redevelopment. In lieu of said old premises, the defendant received the
suit flat. After allotment of suit flat, the plaintiffs are not residing with
him. Both the plaintiffs were residing at flat No.202, 2nd Floor, Plot
No.5, Dattachaya, previously known as Joshi Building, Friends Colony,
Nahur, Bhandup (E), Mumbai42. The said flat No.202 was jointly
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purchased by the plaintiffs by sale deed dated 04.11.2006. The suit flat
is registered in the name of defendant. The power of attorney was
given to the plaintiff No.2 only for registering the suit flat in the name
of defendant. However, the plaintiffs have purchased extra area using
the defendant's position as tenant of the said old Joshi Building. M/s.
Swamy Developers and Contractors have filed their affidavit before the
State Consumer Commission and submitted that they have recognized
the defendant as their only tenant. The State Consumer Commission by
an order dated 15.12.2018 allowed the consent terms executed between
the defendant and the original landlord. Parimala Developers as a
landlord registered the agreement of sale dated 10.01.2019 in favaour
of the defendant as a tenant for the permanent alternate
accommodation in lieu of old premises.
4. It is further contention of the defendant that the plaintiffs
have sold their flat No.202 and have purchased new flat at 7th floor,
Matoshri Park, Opp. Shankar Mandir, Bhandup Gaon (E), Mumbai.
They are residing there. In Metropolitan Magistrate Court, plaintiff
No.1 had made statement that she is residing with her daughter.
Plaintiff No.1 has filed complaint under the Protection of Woman from
Domestic Violence Act, 2005. The defendant has denied the
contentions in the notice of motion regarding harassment to the
plaintiffs. The plaintiffs have not challenged the agreement of sale as
executed in the defendant's favour. With these contentions the
defendant has prayed to dismiss the notice of motion.
5. Heard learned Advocate for the plaintiffs and learned
Advocate for the defendant.
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6. The following points arise for my consideration. My
findings thereon with reasons are as follows :
POINTS FINDINGS
(1) Whether the plaintiffs have prima facie case ? No.
(2) Whether the balance of convenience lies in
favour of the plaintiffs ? No.
(3) Whether the plaintiffs would suffer
irreparable loss, if injunction is not granted ?
No.
(4) What order ? Notice of Motion is
dismissed.
R E A S O N S
AS TO POINT Nos.1 to 3 :
7. All these points are interlinked with each other hence, to
avoid repetition of findings, they are taken together for consideration.
8. It is the case of the plaintiffs that, they are in possession of
the suit flat and defendant is attempting to dispossess them. It is
pertinent to note that the plaintiffs also admit that the defendant is
residing with them and in spite of this fact, he is attempting to
dispossess the plaintiffs. The plaintiffs also apprehend that the
defendant wants to create third party interest in the suit flat and
therefore, the plaintiffs have sought relief of injunction against
dispossession and against alienation. The relationship between the
parties is not disputed. Admittedly, plaintiff No.1 is wife of defendant
and plaintiff No.2 is the son of defendant. It is the case of the plaintiffs
that suit flat is jointly purchased by plaintiff No.2 and the defendant.
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The plaintiffs have relied upon the agreement for sale dated
21.06.2005, which is unregistered agreement. In the said agreement,
the name of defendant and plaintiff No.2 is mentioned as tenant
purchaser. The defendant has relied upon the registered agreement for
sale dated 10.01.2019, which is executed by Parimala Builders in favour
of the defendant in respect of suit flat No.201. This is registered
agreement whereas, the agreement dated 21.06.2005 is unregistered
agreement. Therefore, the registered agreement of the suit flat
substantiate the defendant's contention that he has acquired the suit flat
as alternate accommodation in lieu of surrender of old premises.
9. In respect of proving their possession in the suit flat, the
plaintiffs have produced the copy of ration card at Exh.B to the plaint
which bears address of their old premises i.e. room No.1, Joshi building,
which was surrendered in the redevelopment. They have also produced
the copy of election identity card and Aadhar card of plaintiff No.1,
which also bears said old address of Joshi building. The copy of
electricity bill is of the year 1997 which also bears address of Joshi
Building. Therefore, all these documents are not in respect of flat
No.201, which is the suit flat and therefore, those documents will not
substantiate the plaintiffs claim regarding possession of the suit flat.
The plaintiffs have produced the electricity bill of January, 2014 which
bears name of consumer as Swamy Developer, which is of no use to the
plaintiffs to prove their possession. Except these documents, there is no
evidence which supports the plaintiffs' case regarding their possession
of the suit flat. No other document like driving licence bearing address
of the suit flat, recent Government documents, the postal
correspondence are produced to show that the plaintiffs are residing in
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the suit flat. It is also not the case pleaded in the plaint that the suit flat
is the shared household of plaintiff No.1. From the record, it appears
that the plaintiffs and the defendant are residing separately since long.
Record also speaks that there is marital discord between plaintiff No.1
and the defendant. Under these circumstances, the plaintiffs' statement
that they are taking care of the defendant is not acceptable. For the
same reason, it is not acceptable that the plaintiffs and the defendant
are residing jointly in the suit flat. On the other hand, it appears that
due to marital discord the suit is filed. The electricity bill of October,
2021 produced on record bears the name of the defendant alone. The
letters of developer filed at Ex.D and E support the defendant's
contention that the name of plaintiff No.2 was initially mentioned in the
unregistered at the request of the defendant.
10. No prima facie evidence is filed on record by the plaintiffs
to show that they have acquired independent right in respect of old
premises which was surrendered for development. Thereby, also no
independent right of the plaintiffs appear to have been acquired in the
new premises i.e. the suit flat. At the most there could have been right
in respect of shared household in favour of plaintiff No.1 but same is
not specifically agitated in the plaint. Moreover, no documents are
supporting the plaintiffs' case about the possession of the suit flat hence,
their case is weak to substantiate their stand in respect of possession
and also right, title and interest therein. Under these circumstances, I
am of the view that there is no prima facie case in favour of the plaintiff,
balance of convenience does not lie in their favour and if the defendant
is restrained by an order of injunction as prayed there will be
irreparable loss to him who holds the title of suit flat. Hence, notice of
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motion is liable to be dismissed. In the result, I answer point Nos. 1 to
3 accordingly.
AS TO POINT NO.4 :
11. In view of aforesaid findings, the notice of motion is
required to be dismissed. Therefore, in answer Point No.4 I pass the
following order.
ORDER
1 Notice of motion No. 1437 of 2020 is dismissed.
2. Costs of this notice of motion shall follow the event.
3. Notice of motion No. 1437 of 2020 is disposed of accordingly.
Date :13/07/2022 (R.A. SASNE)
Dictated on : 13/07/2022. Adhoc Judge, C.R.No.62,
Checked on : 14/07/2022. City Civil Court,
Signed on : 16/07/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
16.07.2022 at 5.30 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 13/07/2022
Order signed by P.O. on 16/07/2022
Order uploaded on 16/07/2022
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