Interim Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 679/21 in S.C.Suit No. 52/21. 1 Order.
MHCC010021262021
Presented on : 05-03-2021
Registered on : 05-03-2021
Decided on : 22-12-2023
Duration : 2 years, 9 months, 17 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 679 OF 2021
IN
S. C. SUIT NO. 52 OF 2021
Stanley Raymond Dsouza )...Plaintiff
Versus
Merlyn Murray (Married daughter) and others )...Defendants
Shri Upadhyay alongwith Ashwin Vasista, Advocate for the plaintiff.
Smt. Jacqueline M. D’silva, Advocate for the defendants no.4, 5a and 5c.
Smt. Mansi Shah alongwith Shri Arvind Giriraj, Advocate for the
defendant no.7.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 22nd DECEMBER, 2023.
ORDER
1. The plaintiff has taken out the notice of motion for
restraining the defendants from selling, transferring, alienating or
creating any third party right, title and interest in respect of the suit flat.
-- 1 of 6 --
N/m No. 679/21 in S.C.Suit No. 52/21. 2 Order.
2. The contention of the plaintiff that the plaintiff and the
defendants are the siblings. The father of the plaintiff and defendants
Mr. Raymond D’souza was the original tenant of the suit premises. The
father of plaintiff died on 22/01/2013. The mother of plaintiff expired
on 21/03/1986. The grandmother of plaintiff Rose D’souza was the
monthly tenant in respect of the suit property. After the demise of
grandmother of plaintiff rent receipt not transferred on the name of the
father of the plaintiff. Therefore, plaintiff is entitled for the partition of
the suit property and he is having 1/7th undivided share. It is further
alleged by the plaintiff that the authority have executed PAA Agreement
with the defendants without taking prior NOC from the plaintiff and
other defendants. Therefore the contention of the plaintiff that if the
defendants create any third party interest, their right will be frustrated.
Hence, plaintiff prayed for restraining the defendants from creating any
third party interest over the suit property.
3. The defendant no.4, 5(a) and 5(c) opposed the notice of
motion by filing affidavit in reply.
4. The contention of the defendants that suit is barred by the
Law of Limitation. The persons from whom the plaintiff is claiming
rights have died long ago. So there is a gross delay in filing suit. It is
further alleged that Late Mrs. Rose D’souza was a monthly tenant. So
tenanted premises is not at all available for partition, so also that the
suit premises being a tenanted premises there is no question of 1/7th
share in the suit property. It is further alleged by the defendants that the
Late Mrs. Rose D’souza was a monthly tenant, therefore, all the issues
pertaining to possession, rent and rights in respect of tenanted premises
are required to be adjudicated by the Small Causes Court. Therefore,
-- 2 of 6 --
N/m No. 679/21 in S.C.Suit No. 52/21. 3 Order.
this court has no jurisdiction to try and decide the suit. It is further
alleged by the defendants that suit property is not properly described.
There is no proper identification of the suit premises. Hence the suit is
not maintainable. The plaintiff has not filed a single document to show
his possession and occupation over the suit premises. Therefore,
plaintiff is not entitled for the relief prayed and prayed for rejection of
notice of motion.
5. Perused notice of motion, reply filed by the defendants.
Heard both advocates at length.
6. The advocate for the defendants submitted that suit itself is
not maintainable, barred by Law of Limitation and this court have no
jurisdiction to try and decide the suit. Therefore plaintiff is not entitled
for the relief prayed. In this respect advocate for defendants relied on
the ratio laid down in the case of Shrimati Tejbai Tejshi Dedhia V/s.
Central Bank Of India 2007 (109) Bombay Law Reporter 1799, therein,
it is held that in view of Section 28 of the Rent Act the suit for
possession is also not maintainable and also suit for damages also does
not survive. In case at hand, the contention of the defendants that the
plaintiff is claiming title or interest in the suit premises through
grandmother who was the original tenant of the suit premises, therefore
suit is not maintainable. The advocate for the defendants further
submitted that the original tenant died long back. The suit is not filed
within limitation.
7. The contention of the plaintiff that the right to sue accrues
when defendants denied the share or interest of plaintiff in the suit
property. The right to sue does not accrue after the death of original
-- 3 of 6 --
N/m No. 679/21 in S.C.Suit No. 52/21. 4 Order.
owner. The advocate for the plaintiff submitted that these defendants
collusion with each other forged and fabricated and prepared backdated
documents so as to transfer rent receipt and execute agreement in
favour of defendants. The wrong motive of defendants is easily seen
when all of sudden in November, 2020 executed agreement for PAA in
favour of these defendants on the basis of false and forged documents.
It is further alleged by the plaintiff that the defendants have done all
these illegality only to show that they are the only possessor of the suit
property, therefore entitled for the permanent alternate accommodation
alongwith transfer of tenancy right in their favour.
8. I have gone through the documents filed by the parties,
more particularly rent receipt, agreement for permanent alternate
accommodation, the declaration-cum-indemnity bond. I have also gone
through the documents filed alongwith plaint.
9. It is a matter of record that the original tenant herself
entered into the redevelopment agreement with the developer. The old
structure tenements was demolished by the developer and permanent
alternate accommodation on the ownership basis is entitled by the
parties. The contention of the plaintiff that plaintiff and defendants
being siblings all have 1/7th share in suit premises. The apprehension
of plaintiff that suit premises transfer or alienated, he will suffer
irreparable loss. The above facts supports the PAA Agreement and the
document of declaration-cum-indemnity bond. So in my opinion, the
suit is tenable. The contention of the plaintiff that he has filed a suit
when his right was denied by the defendants. But at this prima facie
stage in my opinion, if the defendants alienated / create any third party
interest over the PAA, then plaintiff obviously suffer irreparable loss.
-- 4 of 6 --
N/m No. 679/21 in S.C.Suit No. 52/21. 5 Order.
There will be a multiplicity of the litigation and complication in
effecting shares of the parties. Therefore, in my opinion, suit premises
needs to be protected from the alienation. Therefore, plaintiff is entitled
for the injunction as prayed. Considering this, I pass following order :
- ORDER -
1. The prayer clause (a) of Notice of Motion No. 679/2021 is made
absolute.
2. N/m No. 679/2021 is disposed of accordingly.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 22/12/2023. Mumbai.
1. Dictated online on : 22/12/2023.
2. Placed for correction on : 01/01/2024.
3. Checked on : 01/01/2024.
4. Correction carried on : 02/01/2024.
5. Signed on : 02/01/2024.
6. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
-- 5 of 6 --
N/m No. 679/21 in S.C.Suit No. 52/21. 6 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
02/01/2024. 5.42 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 22/12/2023.
Judgment/Order signed by P.O. on 02/01/2024.
Judgment/Order uploaded on 02/01/2024.
-- 6 of 6 --