Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NOS.1464 OF 2020
IN
S.C.SUIT No. 1378 OF 2020
Shri Rajendra Tukaram Sawant ].. Plaintiff.
V/s.
1. The Maharashtra Housing and ]
Area Development Authority And ]
others. ]..Defendants.
Advocate Mr. Jamkhandi for the plaintiff.
Advocate Ms. Chaurasiya h/f Advocate Mr. Chandrshekhar for the
defendant Nos.1 and 2.
Advocate Mr. Aashish Phalke for defendant No.3.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.Nos.09).
DATE : 9th DECEMBER, 2021
ORDER
The Notice of Motion is taken out by the plaintiff for
restraining the defendants from forcibly dispossessing and obstructing
the peaceful possession of plaintiff in the suit property till final disposal
of the suit.
2. It is the case of the plaintiff that he is in possession of the
Room No.1303, Building No. 3C, New Hind Mill Colony, Ghodapdeo,
Mumbai, 400 033 and it is hereinafter referred as suit property for the
sake of convenience.
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3. Plaintiff has further stated that, he is having rent receipt of
the old premises and the tenants list is showing the name of the
defendant No.3 and the electricity bill also stands in the name of the
defendant No.3. It is further stated that, defendant No.3 was the
original tenant residing at 25, 13 Khetwadi, 9th Lane, Mumbai, 400009.
Plaintiff has referred it as “old premises” for the sake of convenience. It
was a cess building and it was paid by the landlord. Defendant Nos. 1
and 2 have acquired the entire old building for repairs/reconstruction
as it was in dilapidated condition.
4. Plaintiff has further stated that the defendant Nos. 1 and 2
issued a notice for vacating the premises to the defendant No.3 on
20/04/1979. Defendant Nos. 1 and 2 allotted room in building No.
A5/90 Sion, Pratikshanagar Transit camp, Mumbai, 400 022 to the
defendant No.3. The allotment and possession letter were issued on
12/02/1980 to the defendant No.3. Defendant Nos. 1 and 2 issued rent
receipts in the name of the defendant No.3 regarding that room.
5. Plaintiff has further stated that, as per the affidavit dated
09/04/2001, defendant No.3 transferred all his rights, title and interest
in favour of plaintiff in respect of the suit property. Defendant No.3 also
executed a General Power of Attorney in favour of plaintiff on
04/02/2008. Plaintiff has obtained his PAN Card and Aadhar Card on
the address of the suit property. Electric Meter is also installed in the
suit property in the name of the plaintiff. The defendant nos. 1 and 2
have issued a resolution on 23/05/2014 for protection of the tenants
occupying the transit accommodation since prior to 01/04/2009.
Plaintiff has made correspondence with defendant Nos. 1 and 2 in that
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regard. Plaintiff claims to be in exclusive and settled possession of the
suit property.
6. Plaintiff has further stated that since the year 2001 till the
month of October 2020, nobody including the officers of defendant nos.
1 and 2 disturbed the peaceful possession of the plaintiff. However, on
08/10/2020 at 03.00 p.m., one Executive Engineer from the defendant
nos. 1 and 2 alongwith Shri. Ram visited the suit property and informed
Plaintiff that he would have to vacate the suit property within three
days otherwise he would be evicted without any prior intimation or
notice. If the defendant Nos. 1 and 2 evict the Plaintiff forcibly from the
suit property, then Plaintiff will come on road as he has no alternative
accommodation available. They told Plaintiff that the suit property is
not standing in the name of the Plaintiff as per the MHADA record.
They threatened Plaintiff to take the possession on 12/10/2020. Hence,
Plaintiff is constrained to institute the present suit.
7. The Notice of Motion is taken out by him for the interim
relief.
8. Defendant Nos. 1 and 2 have filed a reply to the Notice of
Motion. They have denied all the contentions in the Notice of Motion.
They have stated that the Plaintiff has suppressed the material facts
from the Court. It is contended by the defendants that the premises at
Khetwadi as well as New Hind Colony are the temporary
accommodations constructed by the defendants for the tenants in the
old and dilapidated cessed buildings. The said premises were allotted to
the defendant No.3 as temporary accommodation as he was the tenant
in occupation of the old building. Plaintiff is not party to the transaction
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between defendant Nos. 1 and 2 and the defendant No.3. They have
stated that no third-party rights can be created in respect of any transit
accommodation belonging to the defendant No.1.
9. Defendant Nos. 1 and 2 further stated that Plaintiff cannot
take disadvantage of the resolution dated 23/05/2014. The notice
which Plaintiff has produced along with plaint is addressed to
defendant No.3. The defendant Nos. 1 and 2 are not parties to the
transaction between Plaintiff and defendant No.3. Plaintiff is trespasser
in the suit property and therefore no injunction can be granted in
favour of plaintiff. They have prayed for dismissal of the Notice of
Motion.
10. Considering the plaint, Notice of Motion and reply thereto,
following points arise for my determination and my findings to them
are as stated below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff has proved
prima-facie
case?
In the
Affirmative
2 Whether plaintiff has proved that he will
suffer irreparable loss if the application is
rejected?
In the
Affirmative
3 In whose favour does the balance of
convenience lie?
In the
plaintiff
4 What Order ? As per Final Order
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R E A S O N S
AS TO POINT NO.1 :
11. It is the case of the plaintiff that defendant No.3 was the
original tenant. Plaintiff has produced on record a copy of the letter
issued by the defendant No. 1 dated 12/02/1980 to defendant No.3. It
states that the defendant No.3 was occupying the premises Room No.
25, 13, Khetwadi, 9th Lane, Mumbai. It is stated that as the said
premises is taken up for the purpose of repairs/reconstruction and
hence the premises at room No. 99, A-5 Sion Koliwada rehabilitation
camp is allotted to the defendant No.3. Plaintiff has produced on record
a letter issued by the defendant No. 1 and 2 for allotment to the effect
that the permanent alternative accommodation was ready at the Sion
Rehabilitation Camp and defendant No.3 was called upon to
communicate his willingness to occupy that premises.
12. Plaintiff has produced on record an affidavit of Anant
Narayan Surve by virtue of which he transferred Room No. 99 of Chawl
No. 5, Sion, Pratiksha Nagar, Mumbai 400022 to the present Plaintiff.
He has stated that he has no objection for transferring of the said
premises in the name of the plaintiff. Plaintiff has also produced the
General Power of Attorney on record issued in his favour by the
defendant No.3 regarding room No.99. Plaintiff has produced his
Aadhar Card on record which shows the address of Parshuram Nagar,
King Stone Tower, Kalachowki, Mumbai 400033. This address is
different from the suit property. Plaintiff has produced the PAN Card on
record but there is no address.
13. Plaintiff has produced on record his electricity bills along
with his written argument which show the name of plaintiff and the
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address of the suit property. Plaintiff has produced on record the letter
issued by the MHADA at page No. 49. The said letter shows that the
defendant No.3/Plaintiff were found to be in occupation of the Block
No.99 in building No. A-5. As per the sanction given by the defendant
No.1 and 2, the Plaintiff was temporarily shifted to Block No. 1303 that
is present suit property. This letter makes it clear that the plaintiff was
put in possession of the suit property by the defendant Nos. 1 and 2 on
certain terms and conditions. It is stated that if any other person than
the one in whose possession the property is given is found to be in
possession, then the said person would be evicted without giving any
prior intimation.
14. In the circumstances, now it is for the defendant Nos. 1 and
2 to show that the plaintiff has committed the breach of the condition
imposed upon him while allotting the suit property and they has to
follow the due procedure of law for evicting the Plaintiff.
15. Plaintiff has relied upon the judgment in the case of Neha
Nandkumar Gavkar Vs The Estate Officer, MHADA and others reported
in Appeal from Order No. 182 of 2016. In that matter, the ad-interim
relief was refused by the trial judge. But while granting the same, the
Hon’ble High Court directed to dispose of the Notice of Motion within
three months from the date of completion of the pleadings. It was held
that the competent authority did not conduct the hearing as
contemplated under Section 66 of the MHAD Act. In the present matter,
the defendant Nos. 1 and 2 have put Plaintiff in possession of the suit
property. Hence, he cannot be evicted without following the due
procedure of law.
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16. In the circumstances above, I have come to the conclusion
that the plaintiff has proved his
prima facie case. I answer point No. 1 in
the affirmative.
AS TO POINT NO.2 :
17. Plaintiff is appearing to be put in possession of the suit
property by the defendant Nos. 1 to 3. Whether Plaintiff is entitled to
the rehabilitation or not is a question to be decided on the merits.
However, if in the meantime, the plaintiff is dispossessed of the suit
property, then he will suffer irreparable loss. Hence, I answer point No.
2 in the affirmative.
AS TO POINT NO.3 :
18. In view of all above discussion, the balance of convenience
lies in favour of the Plaintiff. I answer point No. 3 in favour of the
plaintiff and proceed to pass following order.
O R D E R
1. Notice of Motion Nos. 1464 of 2020 is made
absolute in terms of prayer clause (a).
2. Defendant Nos. 1 and 2, their servants, agents or
any one on their behalf are temporarily restrained
from interfering with the peaceful possession of the
plaintiff or dispossessing the plaintiff from the suit
property till final disposal of the suit.
3. Cost will follow in main cause.
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4. Notice of Motion 1464 of 2020 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 09.12.2021 Gr.Mumbai.
Dictated on: 09.12.2021
Typed on : 10.12.2021
Signed on : 22.12.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22.12.2021 AT 1.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
Nos.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. Nos.09)
Date of Pronouncement of
Judgment/Order
09.12.2021
Judgment/Order signed by P.O. on 22.12.2021
Judgment/Order uploaded on 22.12.2021
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