Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
Notice of Motion No. 1836 of 2018
In
S.C. Suit No. 1052 of 2017
Vilas Ganpati Kalantre ...Plaintiff.
V/s.
Ganpati Krushna Kalantre & Ors. ...Defendants.
Appearances: Ld. Adv. Mr. Redekar for the plaintiff.
Ld. Adv. Mr. Bansode for for defendant Nos.1 & 2
Ld.Adv. Ms. Mangal Kadam for defendant/MHADA
Coram : D.K. Gudadhe, Adhoc Judge.
(C.R.No. 12)
Dated: 21st September, 2018
Order
1. This notice of motion is taken out by the defendants No. 1
and 2 to mandate the plaintiff to remove the lock which he has put up
over the entrance door of the suit room without asking for any
permanent relief to that by way of counterclaim or any other
permissible mode for seeking such relief. The facts of the notice of
motion in short are as under.
2. According to the defendants, defendant No. 1 was the
tenant of room No. 27 situated at Ram Bharose Estate, Tukaram
Kurhade Chawl, N.M.Joshi Marg, Chinchpokali, Mumbai. However,
the suit room alongwith the house in which it was situated came to be
redeveloped as per the provisions of MHADA and defendant No. 1 was
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provided with alternate accommodation at room No. 103, Bimbisar
Nagar, Goregaon (E), Mumbai and same has been more specifically
described in para 5 of the plaint. This notice of motion is in respect of
this room and hereinafter referred to as 'suit room' for the sake of
brevity.
3. After taking of the suit room by defendant No. 1, he
executed power of attorney in favour of the plaintiff as to take care of
the suit room. However, the plaintiff abused his power and inducted
tenant therein. Meanwhile, the defendants were at their native for
taking medical treatment and when they came back to Mumbai for the
purpose of medical treatment, they saw tenant therein. Therefore,
they inquired the plaintiff about this, but the plaintiff with illmotive in
his mind put some articles of his in the suit room and refused the
defendants to enter into the suit room. However, the defendants
entered into the suit room. Thereafter, again, one day when they were
out, the plaintiff put his lock over and restrained defendants from
entering into the suit room. Hence, defendants have taken out this
notice of motion for issuance of direction as mentioned earlier.
4. The plaintiff opposed the application on a ground that
defendant No. 1 and other cotenants transferred their tenancy right in
his favour for consideration and since then, he has been in possession
of the suit room. As such, there is no substance in the defendants
notice of motion and therefore, it be rejected.
5. On these rival contentions of the parties, the points that
arise for determination are as follows. I have given my findings thereon
for the reasons mentioned in the subsequent paras.
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Sr.No. POINTS FINDINGS
1. Whether the defendants have got prima
facie case ? No.
2. Whether the balance of convenience lies
in favour of the defendants ?
No.
3. Whether the defendants would suffer
irreparable loss, if injunction is withheld ? No.
4. What order? As per final order.
Reasons:
As to Point No.1:
6. From the bare reading of the contents of the notice of
motion, it is clearly seen that the suit premises is alternative
accommodation provided by the MHADA. Therefore, it can say that suit
room is 'authority premises'. As per Sec. 71 of the MHADA Act, the Civil
Court has no jurisdiction to entertain any suit or proceeding in respect
of the eviction of any person from any Authority premises under
Chapter VI of the said Act, and cannot grant any injunction in respect
of the any action taken by the authority. Not only this, Sec. 66 of the
said Act, provides the power and authority who can evict any person
from the authorised premises. Not only this even the appeal has been
provided against the order of such eviction. Thus, it clearly seen that, if
the defendants want to say that they were inducted in a suit room and
the plaintiff restrained them from entering in the suit room claiming to
be in possession of the said room then they can very well approach the
competent authority under MHADA Act and said competent authority is
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duty bound to decide such relief as claimed by the defendants. So, it is
seen that this court has no jurisdiction.
7. However, it is worthwhile to mention here that, earlier the
plaintiff had also taken out notice of motion No. 1975/2017, wherein,
my predecessor passed an interim relief thereby restraining defendant
No. 2 to act upon the registered Gift Deed executed by defendant No. 1
in her favour; and defendant Nos. 3 and 4 who were also temporary
restrained from delivering possession of new tenement in favour of
defendant No. 2 on the basis of the said Gift Deed. However, in the said
notice of motion, the plaintiff’s claim for injunction against the
defendants from disturbing his possession came to be rejected on a
ground that the title of old suit premises (in view of which transit
accommodation was given), wherein, name of defendant No. 2 is
would not be appropriate to grant such temporary injunction against
the true owner. However, in a same order, it is observed that when the
MHADA authority inspected suit premises/room they found the plaintiff
and his wife were in possession. Because of this observation and
rejection of the plaintiff’s prayer for temporary injunction against the
defendants, it appears that later has taken out this notice of motion.
8. But considering the observation in para supra that there is
no counterclaim of the defendants to this effect and further the
defendants do not fall within the scope of Rule 1 of Order 39, I do not
find there is any substance in the defendant’s application. And this is
also for the observation that it is an 'Authority premises' and authority
under MHADA Act, is only empower to deal with it. Hence, in my
opinion, there is no prima facie case in favour of defendant.
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9. Thus, considering the entire discussion made in para supra,
it is clearly seen that the defendants have got no prima facie case.
Accordingly, I answer this point.
As to Point Nos. 2 & 3:
10. So far as these points are concerned, since the defendants
have got no prima facie case, I do not think they would suffer any
inconvenience and sustain any irreparable loss if injunction is not
granted. Accordingly, I answer these two points in the negative.
As to Point No. 4 :
11. In view of my findings to the above points and reasons for
the same, I hold that Notice of Motion deserves to be rejected.
Accordingly, I answer to this point and proceed to pass order in
following terms:
Order
1. Notice of Motion is hereby rejected.
2. Accordingly, Notice of Motion is disposed of.
(D.K. Gudadhe)
Adhoc Judge,
21.09.2018 City Civil Court, Gr. Bombay.
Dictated on : 21.09.2018
Transcribed on : 24.09.2018
Signed on : 25.09.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 26.09.2018 11.00 A.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri D.K. Gudadhe
(C.R.No.12)
Date of Pronouncement of
JUDGMENT /ORDER
21.09.2018
JUDGMENT /ORDER signed by P.O. on 25.09.2018
JUDGMENT /ORDER reuploaded on 31.10.2018
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