Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT
GR.BOMBAY
NOTICE OF MOTION NO.1720 OF 2019
CNR NO.MHCCO1-004745-2019
IN
S.C. SUIT NO.4372 OF 2012
Oricon Enterprises Private Limited
(formerly National Cotton Products Private Limited)
A company registered under the provisions of the
Companies Act, 1956 through Balmukund Gaggar
director of company having registered ofce at
35, Dr.E.Moses Road, Worli,
Mumbai-400 018. ..Plaintif
Versus
Smt.Razia Usman Sheikh,
Aged about 40 years, Occupation: Housewife,
of Mumbai Indian Inhabitant, residing at Room No.
24, 1st foor, Amtee Chawl no.4, Dr.E.Moses
Road, Worli, Mumbai 400 018. ..Defendant
Ld. advocate Mr.Kazi for plaintif
Ld. advocate A.R.Pandey for defendant
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 22/01/2020
ORAL ORDER
1. This notice of motion is tendered by the
defendant interalia seeking the relief for
directing the plaintif to give an undertaking
that in case the suit is dismissed, they shall
enter into an agreement with the defendant to
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allot a permanent alternate accommodation in
lieu of the suit premises and further to pay
monthly compensation for alternate
accommodation pending the disposal of the
suit.
2. Heard.
3. Ld. Counsel for the defendant submitted that
plaintif has served the draft copy of the
notice of motion to the defendant vide letter
dated 23/02/2016 but the same was not
tendered before this Court. The plaintif
approached the defendant and gave proposal
that he will pay compensation for temporary
alternate accommodation for vacating the suit
premises like other tenants in view of the
order passed by the Hon'ble High Court dated
18/06/2015 in W.P.(L) No.1599 of 2015. The
plaintif also wrote a letter dated 28/04/2016
to the plaintif giving terms to vacate the suit
premises and given an undertaking that in
case judgment is passed against the
defendant, she shall not claim any right of
permanent alternate accommodation and in
case the plaintif loss the case they shall be
bound to give permanent alternate
accommodation to the defendant. The
plaintif had given a cheque of Rs.2,26,000/-
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to the defendant for temporary alternate
accommodation for 12 months commencing
from 01/05/2016 to 30/04/2017. The plaintif
stopped paying compensation from
01/05/2017. The amount of compensation is
due to the tune of Rs.4,68,000/-. The
defendant has made representation to the
plaintif and has written letter dated
14/03/2018 for payment of compensation.
Hence, the defendant has taken out this
notice of motion.
4. The plaintif fled reply to the notice of motion.
The contention of the plaintif is that no relief
can be granted to the defendant. The
defendant is trespasser and she has made a
forcible entry in the premises belonging to the
plaintif. The plaintif has entered into an
agreement with the tenants who were the
tenants of the plaintif and the case of the
defendant is otherwise. The defendant has
fled RAD Suit no.363 of 2005 in the Small
Causes Court for the declaration that she is
entitled to the suit premises and she may be
provided permanent alternate
accommodation. The said suit was dismissed.
Therefore the defendant is not entitled for the
compensation claimed by virtue of this
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compromise, without confrming any right
upon her. The order passed by the Hon'ble
High Court in Writ Petition No.1599/2015 has
no concerned with the defendant. The
plaintif prayed for dismissal of the notice of
motion.
5. At the outset the suit is fled by the plaintif is
for restoration of the possession u/s. 6 of
Specifc Relief Act. The defendant has not
fled any counter claim to assert her right. In
the suit u/s. 6 of Specifc Relief Act, the
limited scope of the inquiry is that the plaintif
was dispossessed within six months before
fling of the suit without following due process
of law and entitled for restoration of
possession. The interim relief is always in aid
to the main relief. The defendant has not fled
any substantial claim. Even there is no
direction from the Hon'ble High Court
directing the plaintif to pay compensation to
the defendant. The defendant is not entitled
for any such relief in a suit fled by the
plaintif. The present notice of motion is
abuse of process of law and needs no
consideration. Hence, it is expedient to pass
following order:-
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ORDER
1. N/M no.1720/19 stands rejected.
2. Cost in the cause.
3. N/M no.1720/19 is disposed of
accordingly.
22/01/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 22/01/2020
Transcribed on : 29/01/2020
Signed on : 31/01/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
04/02/2020 at 4.30 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
22/01/2020
Judgment and order signed by P.O. 04/02/2020
Judgment/order uploaded on 04/02/2020
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