Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.1805/2018 ..1.. InS.C.Suit No.1056/2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1805 OF 2018
IN
S.C. SUIT NO. 1056 OF 2018
CNR NO : MHCC010058742018
Karan Ankush Sawant, ...Plaintiff
Versus
1. Mrs. Surekha Ankush Sawant & Ors., ...Defendants
Appearance :
Ms. Haresh Shivdasani, Advocate for the Plaintiff.
Mr. Sanjay C. Prabhu, Advocate for defendants No.1 & 2.
Mr. Paras Gosar i/b Jayesh R. Vyas, Advocate for defendant No.3.
CORAM: HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 26TH MARCH, 2021.
ORAL ORDER
By this notice of motion, the plaintiff has prayed for
appointment of Court Receiver in respect of Room No.128, Anna
Bhau Sathe Nagar, Jerbai Wadia Road, Near Bhoiwada
Crematorium, Sewree, Mumbai 400 015, (hereinafter referred
as, “The Suit Premises”) and/or the Flat which would be allotted
to the defendants after redevelopment under Rehabilitation
Scheme. The plaintiff has also prayed for injunction restraining
the defendants from creating third party interest in the suit
premises or alternate premises, a mandatory injunction to allow
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the plaintiff to reside in the suit premises or the alternate
premises and a direction to defendant No. 5 to defer giving
possession of the suit premises to defendants No. 1 to 4.
2. In brief, the plaintiff’s case is that, defendant No.1 is his
mother and defendants No.2 to 4 are his siblings. The suit
premises were owned by his father late Ankush Sawant who died
on 22.05.2017. The suit premises exist in declared slum being
rehabilitated and alternate accommodation is being provided as
per the agreement executed by defendant No. 5 in favour of the
occupants of the slum. The plaintiff got married in the year
2009. His marriage was not approved by the family. The
plaintiff’s family i.e. defendants did not allow him to reside in the
suit premises. The plaintiff was forced to reside elsewhere with
his wife. Presently, defendants No. 1 and 2 and the family of
defendant No. 2 are residing in the suit premises. The
Rehabilitation Scheme is being implemented by defendant No. 5
under Rule 33 (10) of the Development Control Regulation and
the Provisions of Maharashtra Slum Areas (Improvement,
Clearance And Redevelopment) Act, 1971. The plaintiff has
requested defendants No.1 and 2 to allow him and his family to
stay in the suit premises. Defendant did not reply his such
request. The plaintiff addressed a notice to defendant No.5
requesting it to transfer the flat in the name of the plaintiff and
defendants. It was refused by defendant No.5. The plaintiff
addressed another letter to defendant No.5 but in vain. It has
come to the plaintiff’s knowledge that prospective buyers are
approaching defendant No.1 and 2 to purchase the suit premises.
The plaintiff has himself observed the same. The plaintiff has 1/5
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share in the suit premises. Till the plaintiff gets his share, he be
allowed to reside in the suit premises or in alternate be paid
Rs.25,000/ per month. The appointment of Court Receiver is
thus necessitated. The relief therefore, be granted as sought.
3. Defendants No.1 and 2 have opposed the notice of motion
contending that, the plaintiff has suppressed material facts and
has not come with clean hands before the Court. The suit
premises were purchased by late Ankush Sawant and since then
the defendants are in possession and using the suit premises for
residential use. The suit premises were purchased from income
of defendant No. 2. The Rehabilitation Scheme is being
implemented by defendant No. 5. However, it has refused to
execute agreement with the defendants as the suit premises were
declared non eligible by the Competent Authority. Later
defendants No.1 and 2 have persuaded the SRA Authorities and
got the suit premises declared as eligible for the benefit of the
Rehabilitation Scheme. Still defendant No. 5 has not entered into
an agreement with the defendants No.1 and 2. The plaintiff and
his wife themselves choose to reside separately from the family.
It was a condition of plaintiff’s wife that, if the plaintiff wants to
marry her, then he should reside in her father’s house as, “Ghar
javai”. The plaintiff has severed his relations and ties with
defendants No.1 and 2. Late Ankush has deleted the plaintiff’s
name from the Ration Card. The plaintiff and his wife quarreled
with defendants No.1 and 2 every now and then. Defendant No.1
had to approach police on one of such occasions and had filed a
complaint against them. Considering the ill intentions of the
plaintiff and his wife, late Ankush has executed a Will on
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06.04.2017 and has bequeathed the suit premises in the name of
defendant No.1. The plaintiff did not visit late Ankush when he
was ill and did not offer any help during his illness. After death of
late Ankush the plaintiff has started harassing defendants No.1
and 2. As per SRA Rules after death of a male slum dweller, his
widow’s name is considered for the allotment of alternate
accommodation. Therefore, under SRA Scheme the plaintiff
cannot seek any relief. If a permanent alternate accommodation
is allotted in lieu of old structure, it cannot be transferred or
partitioned for a period of 10 years. Hence, plaintiff’s suit is not
maintainable.
4. Perused. Heard.
5. Following points arise for determination against which
findings are recorded for the reasons to follow.
Sr.
No.
POINTS FINDINGS
1. Whether plaintiff has made out a
primafacie case in his favour? In the Negative
2. Whether the balance of convenience
lies in plaintiff’s favour? In the Negative
3. Whether plaintiff will suffer
irreparable loss in case of refusal of
injunction?
In the Negative
4. What order? As per final Order.
REASONS
AS TO POINTS NO. 1 TO 4 :
6. At the out set the advocate for defendants No.1 and 2
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submits that, the present suit is not maintainable before this
Court in the light of provisions of Section 42 of the Slum Act,
1971. According to him, the provisions of the Slum Act, 1971,
exclude the jurisdiction of this Court to decide the questions
regarding to allotment of permanent alternate accommodation,
eligibility of a person to get a permanent alternate
accommodation and allied issue. According to him, the plaintiff
is seeking relief in respect of a permanent alternate
accommodation or hut situated in declared slum and so the suit
cannot be entertained by the Civil Court.
7. On the other hand, the advocate for plaintiff submits that,
present suit is a suit for partition. It has nothing to do with the
rehabilitation scheme. Only the Civil Court has jurisdiction to
decide the suit for partition. Neither the provisions nor the
scheme of the Act of 1971 provide for a forum under it to decide
a suit for partition.
8. He relied on Ahok B. Nirgudkar V/s. Sudhadra P.
Nirgudkar and others, 2013(4) Mh.L.J., wherein the Hon’ble
Bombay High Court has held that,
“14. It can thus be clearly seen that the
Apex Court in clear terms has held that a
litigant having a grievance of a civil nature has
a right to institute a civil suit in a competent
Civil Court unless its cognizance is either
expressly or impliedly barred by any statue. It
has been further held that there is a
presumption that a Civil Court will have
jurisdiction and the ouster of civil Court’s
jurisdiction is not to be readily inferred. It has
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been further held that a person taking a plea
contra must establish the same.
15. In the present case, as has been
discussed hereinabove, the dispute inter se
between the two claimants claiming to be legal
heirs of deceased Anandibai, by no stretch of
imagination, falls within the scope of powers
of the Competent Authority or the Appellate
Authority or Grievance Redressal Committee,
which falls under sections 35 and 42 of the
said Act.”
9. I have gone through the authority, cited supra. Considering
the observations of the Hon’ble Bombay High Court in the
authority, cited supra, therefore, the suit of present nature is very
well maintainable before the Civil Court.
10. The advocate for the plaintiff submitted that, the
plaintiff is not pressing the prayers (a) and (d) of the notice of
motion. Thus, this Court is now not called upon to consider the
relief for appointment of Court Receiver as well as a mandatory
injunction against defendant No. 5 to defer handing over
possession of the suit premises to defendants No. 1 to 4. The
notice of motion is thus to be considered only for two reliefs i.e. a
temporary injunction to restrain the defendants from creating
third party rights in suit premises or the alternate accommodation
and to allow the plaintiff to reside in the suit premises or in the
alternate accommodation.
11. It is admitted position that, late Ankush Sawant has
acquired the hut i.e. the suit premises. He is no more. Generally
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speaking, after death of head of the family i.e., a male Hindu, the
properties left by him will devolve upon the legal heirs left behind
by him. Applying said analogy after death of late Ankush, the
suit premises shall devolve on the plaintiff and defendants. The
only explanation to this general rule will be the disposal of the
suit property by late Ankush in his lifetime or a bequeath made
by him to someone.
12. Defendants No.1 and 2 have come with a case that,
late Ankush has executed a Will by virtue of which he has
bequeathed the suit premises to defendant No.1. The copy of Will
is produced on record which reveals that, it is an unregistered
Will. It reveals that said will is executed by late Ankush in
presence of two attesting witnesses. The Will is part of reply to
the notice of motion filed by the defendants No.1 and 2. The
plaintiff has filed rejoinder to the reply filed by defendants No.1
and 2. However, the plaintiff has not disputed execution of such
Will by late Ankush. The plaintiff’s rejoinder is absolutely silent
in this regard. In such circumstances, primafacie an inference
has to be drawn that the plaintiff is not disputing Will executed
by late Ankush.
13. The advocate for plaintiff submits that, the Will
cannot be considered by this Court as it is not probated yet.
14. It needs to be mentioned that, the plaintiff has not
disputed execution of Will by late Ankush there by bequeathing
the suit premises to defendant No.1. In absence of such dispute
raised by the plaintiff, despite having opportunity to do so, the
plaintiff now cannot claim that in absence of probate, the Will of
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late Ankush cannot be considered by the Court.
15. In view of the Will dated 06.04.2017 executed by
late Ankush, therefore, the plaintiff primafacie cannot claim that,
he has some right in the suit premises.
16. When primafacie it is concluded that, the plaintiff
cannot claim a right by succession in the suit premises, the
necessary consequence of it is that, the plaintiff has failed to
make out a primafacie case to seek the injunction as sought.
17. The plaintiff has also sought a direction to the
defendant to allow him to reside in the suit premises. While
considering this aspect the documents tendered by the defendants
on record are material. In the Will left by late Ankush it is clearly
mentioned that, the plaintiff has on his own started residing
separately and has severed his ties with the family. The copy of
Ration Card produced with reply reveals that the name of the
plaintiff is deleted from the Ration Card. Defendant No.1 has
also lodged a noncognizable complaint against the plaintiff. In
such circumstances, the plaintiff can never be allowed to stay
with the defendants as it will create day to day problems for both
of them. It is not in the interest of either parties to direct so.
Thus, the balance of convenience does not lie in favour of the
plaintiff.
18. In the light of the above discussion, therefore, I hold
that, in absence of establishment of primafacie rights in the suit
premises, the plaintiff will not suffer irreparable loss in case the
injunction is refused. Consequently, I answer points No.1 to 3 in
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the negative and in response to point No. 4 pass following order:
ORDER
1. Notice of Motion No. 1805/2018 is dismissed.
2. Costs in cause.
(AJIT N. MARE)
Judge,
Date : 26.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 26.03.2021
Transcribed on : 30.03.2021
HHJ Signed on : 30.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
31.03.2021 4.56 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 26.03.2021
Order signed by P. O. on 30.03.2021
Order uploaded on 31.03.2021
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