Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2064-2019
MHCC010057472019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2064 OF 2019
IN
SUIT NO.572 OF 2015
Laxmi Jethalal Rathod … Plaintiff
Vs.
Maharashtra Housing And Area
Development Authority & Ors.
… Defendants
Appearances:
Ld. Adv Jitendra Gautam for the plaintiff.
Ld. Adv Kandekar for defendants No.1 and 2.
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATED : 14th JANUARY 2021
ORDER
The plaintiff has taken out this notice of motion under
Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908.
2. The learned Advocate for the plaintiff has vehemently
submitted that plaintiff was in occupation of Room No.18, Bartanwala
Building, 2nd Floor, Shivdas Champshi Marg, Mumbai 400 009 from
1981 (hereafter referred to as “Room No.18”). The Bombay Municipal
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Corporation had allotted Room No.11, Municipal Chawl, Wal Pakhadi,
Mumbai 400 009 to the defendant No.5 who is her mother in law.
However, she fraudulently got entered her name in the occupancy
column of Room No.18 in her absence. The Bartanwala Building has
been demolished. The defendant No.4 has constructed a new building
on that site. He has been paying rent of the alternate accommodation
provided to her. She has neither any accommodation nor can afford to
purchase a flat in Mumbai. The defendant No.4 may, therefore, be
directed to hand over keys of a flat in the newly constructed building to
her.
3.
Per contra, the learned Advocate for the defendants No.1
and 2 has fervently submitted that the defendant No.5 is the certified
tenant of Room No.18. The Chief Officer, M.B.R. & R. Board, Mumbai
vide order dated 14.12.2020 has dismissed the appeal filed by the
plaintiff’s husband named Jethalal Premji Rathod for entering his name
as a co-occupant of Room No.18. The said Jethalal Premji Rathod is
not a party to the present proceedings. The plaintiff is, therefore, not
entitled to possession of a flat in the newly constructed building. He
has, therefore, prayed for dismissal of the notice of motion.
4. The plaintiff has sought relief of temporary mandatory
injunction. It is well settled that for obtaining a temporary mandatory
injunction, the plaintiff has to make out a strong
prima facie case and
should also satisfy the Court that in case the interlocutory mandatory
injunction is not granted, she would suffer an extremely irreparable
injury which cannot be compensated in terms of money.
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5. The affidavit in reply to the notice of motion filed by
defendant No.5 goes to show that as per the agreement dated
07.05.1981 entered between one Hari Raam Solia and herself, the
tenancy rights of Room No.18 was transferred in her name. She was in
occupation of Room No.18 as a tenant from 1981 until she handed over
possession thereof to the defendant No.4 for construction of a new
building under the redevelopment scheme.
6. The affidavit of the defendant No.5 further goes to show
that in the survey conducted by the defendant No.1, she was certified as
the tenant of Room No.18. She has been declared eligible for allotment
of a residential unit in the newly constructed building.
7. True, documents produced by the plaintiff
prima facie show
that she was residing in Room No.18 along with her family, but none of
these documents shows that she was a tenant of Room No.18. On the
contrary, the copy of the notice (Exh. E) and Occupants Irrevocable
Consent (Exh. L)
prima facie go to show that the defendant No.5 was
the tenant of Room No.18, and she gave consent for the redevelopment
of Bartanwala Building and handed over possession of Room No.18 to
the defendant No.4 for construction of a new building under the
redevelopment scheme.
8. The copy of the order dated 14.12.2020
prima facie shows
that the Chief Officer, M.B.R. & R. Board, Mumbai after giving personal
hearing to the plaintiff, her husband Jethalal Premji Rathod and
considering the documents produced by them dismissed the appeal filed
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by the plaintiff’s husband for entering his name as the occupants of
Room No.18.
9. From the affidavit of defendant No.5 and the documents
on record, it
prima facie appears that defendant No.5 was the certified
tenant of Room No.18. The plaintiff has failed to establish that she
was the tenant of Room No.18.
10. There is nothing on record to show that defendant No.5 has
either surrendered or bequeathed the tenancy right of Room No.18 in
favour of the plaintiff. As such, during the lifetime of defendant No.5,
the plaintiff cannot claim any right on Room No.18 or a permanent
alternate accommodation to be allotted to defendant No.5 in place of
Room No.18.
11. It cannot be gainsaid that unless and until the competent
authority issues occupation certificate, defendant No.4 cannot hand
over possession of a newly constructed flats to the eligible tenants.
12. It is significant to note that the plaintiff has not placed on
record anything to show that the competent authority has issued such
occupancy certificate to defendant No.4. As a corollary, the question of
handing over of a permanent alternate accommodation to the plaintiff
does not arise.
13. The plaintiff has, thus, failed to make out
prima facie case.
The balance of convenience is also not in her favour. So, I hold that she
is not entitled to the relief of temporary mandatory injunction as prayed
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for by her. Consequently, the notice of motion is liable to be dismissed.
Hence, the order:-
ORDER
1. Notice of Motion No.2064 of 2019 is
dismissed.
2. Costs shall be costs in the cause.
3. Notice of Motion No.2064 of 2019 is disposed
of.
Sd/-
R. S. PAVASKAR
Judge,
Date: 14/01/2021 City Civil Court, Gr. Bombay
Dictated on : 14/01/2021
Transcribed on : 14/01/2021
HHJ signed on : 14/01/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
14.01.2021 1.10 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Shri. R.S. PAVASKAR (CR 12)
Date of Pronouncement of
JUDGEMENT /ORDER
14.01.2021
JUDGEMENT /ORDER signed by
P.O. on
14.01.2021
JUDGEMENT /ORDER uploaded
on
14.01.2021
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