Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM NO.18842018 IN L C SUIT 12242018
MHCC010061442018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1884 OF 2018
IN
L C SUIT NO. 1224 OF 2018
Ashok Raju Suvarna & Others ] ...Plaintiffs.
Versus
Surekha wd/o Suresh Suvarna & Others]…Defendants.
Appearance:
Ld Advocate Thakkar for the plaintiffs.
Ld Advocate Agrawal for defendant No.1 to 3.
Ld Advocate Chandramore for defendant No.4/MCGM.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 6/6/2022
ORAL ORDER
1) Plaintiffs have taken out this Notice of Motion for grant of
interim relief of temporary injunction in respect of premises i.e. Room
No.14, Building No.4, 1st floor, Dadabhai Building, N.M. Joshi Marg,
Mumbai400 013 (For sake of brevity and convenience above premises
is hereinafter referred as suit premises).
2) Perused the notice of motion, affidavit in support of
notice of motion, plaint and documents annexed with the plaint,
affidavit in reply of defendant No.7 and documents filed therewith.
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Heard Ld. Advocate for plaintiff and Ld. Advocate for defendants No.1
to 3. As the other defendants were absent they could not be heard.
3) Ld. Advocate for plaintiffs argued that defendant No.4
MCGM is owner of suit premises. Originally mother of plaintiffs
Babyben Attappa Suvarna was the tenant of suit premises and after
her death the tenancy of the suit premises was transferred in the name
of father of plaintiff and father in law of defendant No.1. Father of
plaintiffs and father in law of defendant No.1 expired on 17/3/2003
leaving behind plaintiff No.1 to 3 and Suresh Raju Suvarna as heirs
and legal representatives. Brother of plaintiffs and husband of
defendant No.1 and father of defendant No.2 and 3 Suresh R. Suvarna
expired on 18/5/2011. As per the Hindu Succession Act each plaintiff
is having 25% share in the suit premises and defendant No.1 to 3 are
having 25% share in the suit premises. Defendant No.7 has started
redevelopment of the building wherein suit premises is situated under
33(7) of Developement Control Regulation. In the list of
tenants/occupants name of plaintiff brother and husband of defendant
No.1 Suresh R. Suvarna is recorded. Plaintiffs and defendant No.1 to 3
are having share in the suit premises. So the plaintiffs are entitled for
benefits of the redevelopment of the suit premises. Prima facie case
and balance of convenience lies in favour of plaintiff. Therefore, Ld
Advocate for plaintiff submitted that ad interim relief in terms of
prayer clause (c) and (d) of the notice of motion be granted.
4) On the other hand Ld Advocate for defendant No.1 to 3
argued that partition of the tenanted premises cannot be claimed and
therefore, plaintiff's suit is not tenable. Defendant No.7 is the owner
and landlord of the suit building wherein suit premises was situated.
The defendant No.7 has redeveloped the suit building under
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Regulation 33 (7) of Development Control Regulation. Defendant
No.1 is residing in the suit premises since her marriage with the
brother of plaintiffs. Plaintiff No.1 left the suit premises in year 1982.
Plaintiff No.2 left suit premises in year 1988 and plaintiff No.3 left the
suit premises after her marriage. Defendant No.1 alongwith her family
was residing in the suit premises till vacating the suit premises for
redevelopment. Defendant No.1 to 3 are the occupants of the suit
premises and therefore they are entitled for the benefits of
redevelopment. Plaintiffs are not occupants of the suit premises.
Plaintiffs are not having possession of the transit accommodation nor
the defendant No.1 to 3 are creating any hurdle in the redevelopment
project. Name of plaintiffs is not reflected in the certified list of
tenants/occupants i.e. Annexure II prepared by defendant No.6.
Therefore, plaintiffs are not entitled for any interim relief as sought.
Developer is bound to give benefits of redevelopment to the person
whose name is reflected in the list of tenants/occupants. Therefore,
Ld. Advocate for defendant No.1 to 3 submitted to dismiss notice of
motion.
5) Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under:
Points Decision
(i) Whether prima facie case lies in favour of plaintiff ? No
(ii) Whether balance of convenience lies in favour of
plaintiff ?
No
(iii) Whether plaintiff will suffer irreparable loss if
Notice of Motion is not allowed ?
No.
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(iv) What Order ? As per final
order.
REASONS
As to Point Nos.1 to 3:
6) As all these points are interconnected with each other
they are decided simultaneously in order to avoid repetition of facts.
7) Plaintiffs have filed the present suit for declaration that
they are having 75% share in the suit premises and for directing
defendant No.7 to execute agreement for permanent alternate
accommodation in lieu of suit premises in favour of plaintiffs and
defendant No.1 to 3 jointly and for directing defendant No.7 to
deposit transit accommodation charges in the court and for permitting
plaintiffs to withdraw 75% share therefrom. It is admitted fact that
originally mother of plaintiffs was the tenant of the suit premises and
after her death tenancy of the suit premises was transferred in the
name of father of the plaintiffs and father in law of defendant No.1.
Admittedly, defendant No.1 to 3 were residing in the suit premises till
its vacation for redevelopment. Moreover, in the present matter it is
admitted fact that name of the husband of defendant No.1 and father
of defendant No.2 and 3 i.e. Suresh R. Suvarna is reflected in the
certified list of tenants/occupants prepared by defendant No.6.
Admittedly at present name of plaintiffs is not reflected in the certified
list of tenants/occupants of the suit building, wherein suit premises
was situated in respect of suit premises.
8) Therefore, prima facie it is necessary for plaintiffs to get
their names inserted in the certified list of tenants/occupants of the
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suit building in respect of suit premises. Untill the names of plaintiffs
are not certified by the Authority in respect of suit premises in the
certified list of tenants/occupants i.e. Annexure II and other record,
till then plaintiffs prima facie do no appear to be entitled for any claim
regarding benefits of redevelopment in respect of suit premises.
Moreover, from the matter on record prima facie it appears that
jurisdiction to decide the eligibility of tenants/occupants for
redevelopment benefits is vested with Authority. Plaintiffs would be
entitled for benefits of redevelopment in lieu of the suit premises if the
Authority hold that they are entitled for the same. Defendant No.7 is
bound by law to provide benefits of redevelopment to the
tenants/occupants whose names are reflected in the certified list of
tenants i.e. Annexure II. Therefore, from the matter on record court
came to the conclusion that plaintiffs prima facie failed to show that
they are entitled for the relief prayed in the present suit and they are
having any right for claiming benefits of the redevelopment in respect
of suit premises. Moreover, prima facie no irreparable loss will be
caused to the plaintiffs.
9) From the matter on record there appear no serious
bonafide question which requires adjudication in the present matter.
Equally efficious remedy is available to the plaintiffs for claiming relief
of their entitlement for benefits of redevelopment in respect of suit
premises. Redevelopment of property is in the interest of public at
large. Prima facie it is not the case of plaintiff that they are occupying
the transit accommodation provided in lieu of suit premises.
Moreover, there is no material on record to prima facie show that
defendant No.1 to 3 are creating any obstruction in the redevelopment
of suit property. Therefore, prima facie case and balance of
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convenience do not lie in favour of plaintiff. No irreparable loss will be
caused to the plaintiff if the notice of motion is not made absolute.
Therefore, point No. 1 to 3 are answered in negative.
As to point No.4:
10) Considering the above matter on record and above
discussion the Notice of Motion is liable to be dismissed. Hence, court
proceeds to pass the following order:
ORDER
1. Notice of motion No. 1884 of 2018 is dismissed.
2. Notice of motion No.1884 of 2018 is disposed off accordingly.
Date : 6/6/2022
(K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & typed on :6/6/2022.
Checked on :7/6/2022.
Corrected & signed on : 7/6/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
7/6/2022 Mrs. Shobha A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
6/6/2022
JUDGMENT/ORDER signed by P.O.
on
7/6/2022
JUDGMENT/ORDER uploaded on 7/6/2022
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