Final Order 2

Order Details: Notice of Motion
Pdf Text: NM.No.2261/2019 : 1 : SC.SU.No.1042/2019
MHCC010062042019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2261 OF 2019
IN
S.C. SUIT NO. 1042 OF 2019
Mr. Haroon Khan s/o. Abdul Aziz Khan .. Plaintiff.
V e r s u s
1. Akbar @ Bhutto Khan s/o. Abdul Aziz Khan
and Others. .. Defendants.
Appearance:
Ld Advocate Shri A.A. Khan for the Plaintiff.
Ld Advocate Shri S.B. Tiwari for Defendants Nos.1 & 2.
Ld Advocate Shri M.A. Vaid for Defendant No.5.
None present for Defendant Nos.3, 4 and 6.
CORAM : SHRI. K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 21st June, 2022.
ORAL ORDER
1. Plaintiff has taken out this Notice of Motion for grant of interim
injunction restraining defendant nos.1 and 2 from disposing of the suit
property or creating third party right in the suit property and also for
restraining defendant nos.5 and 6 from handing over possession of the
suit property in favour of defendant nos.1 and 2.
2. Perused the notice of motion, affidavit in support of notice of
motion, plaint and documents annexed with the plaint, affidavit in
reply of the defendant nos.1 and 2 and documents annexed therewith,
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affidavit in reply of defendant no.5, and affidavit in rejoinder of
plaintiff.
3. Heard learned Advocate for Plaintiff, and learned Advocate for
defendant nos.1 and 2. Defendant nos.3 to 6 failed to advance
arguments, and therefore, they could not be heard.
4. Learned Advocate for the plaintiff argued that plaintiff and
defendant nos.1 to 4 are real brothers. The father of the plaintiff and
defendant nos.1 to 4 was the tenant of the room bearing no.17 situated
at CTS No.6/124, Dhanji Bhai Ice Factory Chawl, Nesbit Road, Old
Dhodi Marg, Mazgaon, Mumbai400 010. (For sake of brevity above
property is referred as tenanted premises). Defendant No.5 is the
landlord and developer of the above property. Father of the plaintiff
and defendant nos.1 to 4 expired on 29.04.2018, and therefore, the
plaintiff and defendant nos.1 to 4 were having equal rights in the
tenanted premises. The above property is being redeveloped under
Regulation 33(7) of the Development Control Regulations for Greater
Mumbai, 1991. Defendant nos.1 and 2 got rent receipt of the tenanted
room transferred in their name without knowledge of plaintiff and
defendant nos.1 and 2 had entered into Articles of Agreement dated
15.12.2010 with defendant no.5 for permanent alternate
accommodation in lieu of the redevelopment of the tenanted premises.
However, later on defendant nos.1 and 2 executed agreement/
undertaking and therein they admitted they will give share to the
plaintiff and defendant nos.3 and 4 in suit premises. Defendant nos.1
and 2 got their names reflected in AnnexureII i.e. list of tenants/
occupants of building in which tenanted premises was situated.
However, now defendants are denying the claim of plaintiff in the suit
property. Therefore, plaintiff is having apprehension that in order to
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defeat the claim of the plaintiff in the suit property i.e. in the
permanent alternate accommodation provided in lieu of tenanted
premises, defendants no.1 and 2 may dispose of suit property and so it
is necessary to restrain defendant nos.1 and 2 from creating any third
party right in the suit property. The prayer clause 'b' of the suit
premises already became infructuous as suit property is already handed
over to defendant nos.1 and 2. Therefore, in order to protect the right
of the plaintiff in the suit property, plaintiff prayed for grant of interim
relief in terms of prayer clause 'a' of the notice of motion.
5. On the other hand, learned Advocate for defendant nos.1 and 2
argued that father and grandfather of the plaintiff were never tenant
of the tenanted premises i.e. Room No.17. Defendant Nos.1 and 2 are
the tenants of the suit premises and the landlord had issued the rent
receipts in the name of defendant nos.1 and 2. Defendant nos.1 and 2
were occupying the tenanted premises. The names of defendant nos.1
and 2 are reflected in AnnexureII which is list of tenant/occupant
issued by MHADA. Therefore, plaintiff has no right or interest in the
suit property. The plaintiff was aware about the execution of the
agreement for permanent alternate accommodation in favour of
defendant nos.1 and 2 in the year 2010. There are delay and latches
on the part of the plaintiff. Plaintiff has filed the present suit to harass
the defendants. Therefore, learned Advocate for defendant nos.1 and 2
submitted that notice of motion be dismissed.
6. 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
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(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
(iv) What Order ? As per final
order.
REASONS
As to Point Nos.1 to 3:
7. As all these points are interconnected with each other they are
decided simultaneously in order to avoid repetition of facts.
8. Plaintiff has filed the present suit for declaration that he is having
1/5th share in the suit property and for partition of the suit property.
In short it is the claim of the plaintiff that his father was the original
tenant of the tenanted premises i.e. Room No.17, and therefore, after
death of his father, plaintiff and defendant nos.1 to 4 were having
equal 1/5th share in the tenanted premises, and therefore, plaintiff is
having 1/5th share in permanent alternate accommodation alloted in
lieu of the tenanted premises i.e. suit property. However, defendant
nos.1 and 2 denied the fact that father of the plaintiff was original
tenant of the suit premises. Therefore, it was necessary for plaintiff to
prima facie prove that his father was tenant. But none of the
documents produced by the plaintiff prima facie support the claim of
the plaintiff that his father was the tenant of the tenanted premises.
On the other hand, the rent receipts at ExhibitB public notice at
ExhibitG, copy of AnnexureII at ExhibitF filed alongwith affidavitin
reply of defendant nos.1 and 2 prima facie reveals that defendant nos.1
and 2 are the tenants of the tenanted premises. As such prima facie
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plaintiff does not appear to have any right or interest in the suit
property. The registered agreement of permanent alternate
accommodation in lieu of the tenanted premises was executed in favour
of defendant nos.1 and 2 during the life time of defendant nos.1 to 4 in
the year 2010 itself. From the pleadings of the plaintiff itself it reveals
that the plaintiff was aware about the execution of the above
agreement in favour of defendant nos.1 and 2 and the fact that name of
defendant nos.1 and 2 is reflected in AnnexureII of the suit building
wherein the tenanted premises was situated. As such prima facie there
are delay and latches on the part of plaintiff.
9. In the present case, admittedly, defendant no.5 is the
landlord/owner and developer of the suit property and defendant no.6
has issued NOC for redevelopment of the property wherein the
tenanted premises was situated under DC Regulations 33(7) of the
Development Control Regulations for Greater Mumbai, 1991 and
provisions of MHADA Act. Admittedly, the list of tenants/occupants
was prepared by defendant no.6. Admittedly, in the certified list of
tenants/occupants i.e. AnnexureII in respect of Dhanji Bhai Ice Factory
Chawl, Nesbit Road, Old Dhodi Marg, Mazgaon, Mumbai, situated at
CTS No.6/124, the name of the plaintiff is not reflected and name of
defendant nos.1 and 2 is only reflected. As per Government of
Maharashtra Notification dated 16.08.2010, the person having
objection to the certified list of tenants/occupants i.e. AnnexureII is
having remedy of preparing first appeal to the Vice President/Joint
Executive Officer, MHADA and he is also entitled to prefer second
appeal to the Government. The order/judgment of the Government
shall be final. Therefore, prima facie it appears that separate
mechanism is provided for challenging the certified list of
tenants/occupants i.e. AnnexureII prepared by MHADA for deciding
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the eligibility of the tenant/occupant for the benefits of re
development. Therefore, prima facie it appears that jurisdiction to
determine the eligibility of the plaintiff for the benefits of the re
development is vested with the Authority and not with the Court.
10. From the matter on record prima facie it appears necessary for
the plaintiff to get his name substituted or added alongwith the name
of defendant nos.1 and 2 in the certified list of tenant/occupant i.e.
AnnexureII prepared by MHADA in respect of the original tenanted
premises. Till the name of the plaintiff is not certified by the Authority
in respect of the tenanted premises in the certified list of
tenants/occupants i.e. AnnexureII and other record till then the
plaintiff prima facie do not appear to be entitled for benefits of re
development in respect of the tenanted premises. Therefore, from the
matter on record prima facie plaintiff failed to prove that he has any
right or interest in the tenanted premises or the suit property. From
the matter on record there appear no serious bonafide question which
requires adjudication in the present matter. As per submission of
plaintiff himself it appears that possession of permanent alternate
accommodation i.e. suit property is already handed over to defendant
nos.1 and 2. Prima facie their appear delay and latches on the part of
the plaintiff. Equally efficacious remedy is also available to the plaintiff
for claiming the relief of his entitlement for the benefits of re
development in respect of the suit property. Therefore, considering the
matter on record and above discussions, the court find that prima facie
case and balance of convenience do not lie in favour of the plaintiff and
no irreparable loss will be caused to the plaintiff, if the notice of motion
is not made absolute. Therefore, points Nos. 1 to 3 are answered in
negative.
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As to point No.4:
11. In view of negative findings as to point Nos.1 to 3 and
considering the matter on record and above discussion and facts of the
case the Notice of Motion is liable to be dismissed. Hence, Court
proceeds to pass the following order:
O R D E R
1. Notice of motion No.2261 of 2019 is hereby dismissed.
2. Notice of motion No.2261 of 2019 is disposed off accordingly.
Date : 21/06/2022 (Shri. K.P. Kshirsagar)
Judge,
City Civil Court,
Gr. Mumbai.
Dictated on : 21.06.2022
Typed on : 21.06.2022
Signed by HHJ. : 24.06.2022
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27.06.2022 Mrs. Pradnya S. Naik
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room
No.)
Shri. K.P. Kshirsagar
(CR.No.08)
Date of Pronouncement of
JUDGEMENT/ORDER
21.06.2022
JUDGEMENT/ORDER signed by P.O.
on
24.06.2022
JUDGEMENT/ORDER uploaded on 27.06.2022
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