Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2293-2019 in SU 1403-2019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.2293 OF 2019
(CNR No.MHCC01-006344-2019)
IN
SUIT NO.1403 OF 2019.
(CNR No.MHCC01-005554-2019)
Pannalal Hiralal Betwala and Anr. }...PLAINTIFFS.
Versus
Smt.Kalavati Nanka Betwala and Ors. }...DEFENDANTS.
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Shri.S.K.Chourasiya, learned advocate for the plaintiffs.
Shri.Sudam Patil, learned advocate for the defendants.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 03/04/2021)
1. This Notice of Motion is taken out by the plaintiffs for
seeking the reliefs as under;
a) That pending the hearing and final disposal of the suit,
this Hon’ble Court be pleased to pass a temporary order of
injunction restraining the defendants, their heirs, assignees,
servants, agents and/or any person claiming through/or under
them, from causing any disturbance, annoyance or obstruction to
the ingress, egress, lawful use, occupation and possession of the
plaintiffs in respect of the suit premises being Room No.24,
Ground floor, Pednekar Wadi, Dilip Gupte Marg, Mahim(W),
Mumbai-400 016 in any manner whatsoever;
b) That pending the hearing and final disposal of the suit,
this Hon’ble Court be pleased to pass a temporary order of
injunction restraining the defendants, their heirs, assignees,
servants, agents and
or any person claiming through/or under
them, from surrendering tenancy, transferring, assigning,
encumbering or creating any third party right or interest in
respect of the suit premises being Room No.24, Ground Floor,
Pednekar Wadi, Dilip Gupte Marg, Mahim (W), Mumbai-400 016
in any manner whatsoever;
c) That pending the hearing and final disposal of the suit,
this Hon’ble Court be pleased to pass a temporary order
appointing Court Receiver, High Court, Bombay in respect of the
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suit premises being Room No.24, Ground Floor, Pednekar Wadi,
Dilip Gupte Marg, Mahim(W), Mumbai-400 16 with all powers
under Order 40 Rule 1 of CPC.
2. Read the affidavit and additional affidavit filed in support
of Notice of Motion by the plaintiffs and affidavit-in-reply filed by the
defendants. Heard learned Shri.S.K.Chaurasiya advocate for the
plaintiffs and learned Shri.Sudam Patil advocate for the defendants.
Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by
the plaintiffs? ...No.
ii) Whether balance of convenience lies in
their favour? ...No.
iii) Whether irreparable loss will cause to
the plaintiffs if injunctions as prayed are
not granted? ...No.
iv) Whether it is necessary to appoint Court
Receiver in respect of suit premises? ...No.
v) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iv):
4. All the points are taken together for consideration. Learned
advocate for the plaintiffs argued that husband of defendant No.1 was
the brother of plaintiff No.1, their mother was tenant in respect of suit
premises Room No.24, plaintiffs & defendants were in joint possession
of the said suit premises till it was gutted in fire and there are
voluminous documents to show that plaintiffs were residing in suit
premises along with the defendants. He argued that old suit premises
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Room No.24 burnt completely in fire and defendants have illegally
reconstructed the suit premises without obtaining consent of plaintiffs.
He argued that it came to the notice of the plaintiffs that defendants
have deliberately not constructed mezzanine floor which was in
existence in the old suit premises. He argued that plaintiffs had
expressed that they are willing to bear half expenses for reconstruction
of the suit premises but defendants did not allow them and now
defendants are denying rights of plaintiffs in the suit premises. He
argued that plaintiffs are joint tenants in respect of the suit premises
with the defendants yet, defendants are not allowing ingress and egress
to the plaintiffs in the suit premises, defendants had assaulted the
plaintiffs and report with police have been filed by the plaintiffs against
the defendants. He argued that defendants are illegally trying to
surrender the tenancy rights in the suit premises and if they succeed in
doing so, it will cause an irreparable loss to the plaintiffs. He argued
that it is necessary to protect the lawful rights of the plaintiffs in respect
of the suit premises by granting temporary injunctions as prayed and it
is necessary to appoint Court Receiver to protect the suit premises and
hence, Notice of Motion shall be made absolute.
5. As against this, learned advocate for the defendants argued
that original tenanted premises was divided in two parts, the part fallen
to the share of the plaintiffs is given Room No.24A and as such,
plaintiffs do not have any rights in the suit premises Room No.24. He
argued that defendants have reconstructed the existing structure of suit
premises by obtaining necessary permission & plaintiffs are not entitled
for ingress & egress in the suit premises. He argued that the documents
produced on record by the plaintiffs are not sufficient for showing that
plaintiffs are joint tenants in respect of the suit premises hence, Notice
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of Motion is liable to be dismissed.
6. It does not appear to be in dispute that husband Nanka of
defendant No.1 was brother of plaintiff No.1 and their mother Sugyabai
was the original tenant in respect of suit premises Room No.24.
Plaintiffs have produced copy of rent receipt dtd.22/09/1994 standing
in the name of mother Sugyabai and rent receipt dtd.28/02/2007
standing in the joint names of plaintiff No.1 and his deceased brother
Nanka. Plaintiffs have also produced copies of Adhar Card, Bank
Passbook, Money order receipt, letter dtd.21/9/1995 issued to plaintiff
No.1 by the landlord for claiming increased rent, Election ID card etc..
Address of the suit premises is available in those documents as address
of the plaintiffs. Plaintiffs have also produced copy of list of tenants
issued by MHADA on 31/10/2017. Names of defendants and plaintiff
No.1 are available in the said list as occupants of Room No.24. Plaintiffs
have also produced Ration Card issued in the name of wife of plaintiff
No.1 on the address of Room No.24-A, copy of rent receipt of Room
No.24-A standing in the name of wife of plaintiff No.1 and other
documents standing in her name on the address of Room No.24-A.
7. Defendants have produced copy of Ration Card issued in
the name of defendant No.1 on the address of suit premises, copies of
Adhar Cards, copy of application filed with MCGM for seeking
permission to reconstruct the suit premises, copy of permission letter
issued by MCGM, copy of list of occupants certified by MHADA, copy of
affidavit addressed by wife of plaintiff No.1 to MBBR that she is
occupant of room No.24-A and certain other documents.
8. Copies of documents produced on record by the plaintiffs
prima facie suggest that plaintiff No.1 and his brother Nanka were the
joint tenants in respect of old suit premises Room No.24. Contention of
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defendants is that Room No.24 was divided in two parts after which,
defendants were in use & occupation of Room No.24 whereas, plaintiffs
were in possession of Room No.24-A. Plaintiffs have produced copy of
Ration Card issued on the address of Room No.24-A. Said Ration Card
is issued in the name of wife of plaintiff No.1 and names of both the
plaintiffs are available in the said Ration Card as her family members.
Defendants have also produced copy of Ration Card issued on the
address of Room No.24. Said Ration Card is in the name of defendant
No.1 and names of deceased husband of defendant No.1 so also, names
of other defendants are available in the said Ration Card as family
members of defendant No.1. Apparently, copies of Ration Cards
produced on record by the parties
prima facie suggest that plaintiffs and
defendants were residing in separate Rooms and plaintiffs have not
explained as to how their names are not available in the Ration Card
issued on the address of the suit premises Room No.24.
9. May that it be so, it does not appear to be in dispute that
old suit premises Room No.24 was gutted in fire in year 2019. Plaintiffs
have averred in the plaint that defendants have reconstructed the suit
premises illegally in respect of which, complaints were lodged by the
plaintiffs with police. Contention of plaintiffs about lodging of report
with police is supported by copies of documents produced on record by
them. However, in the additional affidavit filed in support of Notice of
Motion, plaintiffs have changed their stand and made statements that
they had given proposal to the defendants that they are ready to
contribute funds for reconstruction of the suit premises but defendants
had not agreed for it. Said contention in the additional affidavit is in
total contradiction with the statements made in the plaint. It does not
appear that any such contention was raised by the plaintiffs in notice
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sent to defendants and in the FIR lodged with police. On that count and
considering the fact that it is the own contention of the plaintiffs that
existing structure of Room No.24 is reconstructed by the defendants,
the claim of plaintiffs for ingress and egress in the suit premises cannot
be accepted at this interim stage.
10. There is yet another reason for not accepting the prayer
made in that regard. It is apparent from the material produced on
record by both the parties that they are not maintaining good relations
interse and they have filed reports against each other with the police in
respect of the quarrels taken place between them on account of their
rival claims in the suit premises. Granting of permission to the plaintiffs
for ingress and egress in the suit premises will be harmful to both the
parties and on that count also, the prayer made in terms of prayer
clause (a) of Notice of Motion cannot be accepted.
11. Plaintiffs have also claimed relief to temporarily restrain
the defendants from surrendering tenancy, transferring, assigning,
encumbering or creating any third party rights or interests in respect of
the suit premises pending final decision of the suit. Plaintiffs have not
produced any supporting material to show that defendants are trying to
create third party interest in the suit premises. In fact, plaintiffs have
not made any specific statement in that regard in the plaint or in the
affidavits filed in support of the Notice of Motion. Again, defendants
have specifically stated in their written statement that they have no
intention to create third party interest in the suit premises. Having
regards to those aspects, the contention raised by the plaintiffs is
prima
facie not acceptable that defendants are trying to create third party
interests in the suit premises.
12. There is no material for accepting the contention of the
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plaintiffs that defendants are trying to surrender the tenancy rights in
respect of the suit premises. As mentioned earlier, name of plaintiff No.1
is available as occupant of the suit premises in the list prepared by
MHADA. Plaintiffs have contended in the additional affidavit filed in
support of Notice of Motion that defendants want to grab the entire
premises and enjoy the fruits of redevelopment to the exclusion of the
plaintiffs. It will have to be seen whether said statement in the
additional affidavit is sufficient for holding the plaintiffs entitled for
interim relief in terms of prayer clause (b) of the Notice of Motion?
13. Plaintiffs themselves have produced on record affidavit-
cum-declaration executed by plaintiff No.1 and his brother Nanka
(husband of defendant No.1) in respect of the suit premises Room
No.24 in year 1997. Defendants have disputed the genuineness of said
affidavit-cum-declaration on various grounds however, defendants have
not filed any counter affidavit in that regard. Said affidavit-cum-
declaration shows that plaintiff No.1 and his brother Nanka have given
their no objection for redevelopment of the suit property by the owner.
It is mentioned in the said joint affidavit that those brothers have
executed said affidavit to secure new room in the redeveloped building
in lieu of their old tenanted Room No.24. Since plaintiffs themselves
have produced copy of said affidavit-cum-declaration, they cannot be
permitted to run away from the statements made in the said affidavit by
plaintiff No.1 in respect of the consent given for redevelopment. Even if
possession of the suit premises is handed over to the owner/builder by
the defendants for redevelopment purposes, there is no question of
causing any harm to the plaintiffs because if plaintiffs succeed in
proving that they have rights in the old room No.24 as joint tenants,
they will be entitled for rights in the new premises on the basis of the
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affidavit-cum-declaration executed by plaintiff No.1 and his brother
Nanka so also, on the basis of the list of occupants prepared by MHADA.
If defendants are restrained from surrendering the suit premises for
redevelopment purposes, the process of redevelopment will stall and it
will not be in the interests of both the parties due to which, this court is
of the opinion that plaintiffs have not made out a
prima facie case in
their favour in respect of prayer clause (b) also.
14. Having regards to those aspects, this court is of the opinion
that neither
prima-facie case nor balance of convenience do lie in favour
of the plaintiffs. In the result, there is no question of causing any
irreparable loss to the plaintiffs if interim injunctions as prayed are not
granted in their favour. It does not appear that the suit premises is in
any type of danger in the hands of defendants and defendants are
illegally causing any damage to the suit premises due to which, the
prayer made for appointment of Court receiver is also not acceptable.
For all these reasons by answering Point Nos.(i) to (iv) accordingly, I
pass the following order.
O R D E R
Notice of Motion No.2293 of 2021 is dismissed.
Costs in the main cause.
Date : 03/04/2021. (P.P.RAJVAIDYA)
Dictated on : 03/04/2021. Judge, C.R.No.9,
Checked on : 05/04/2021. City Civil Court,
Signed on : 05/04/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
07.04.2021 at 11.55 a.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 03/04/2021.
Order signed by P.O. on 05/04/2021.
Order uploaded on 07/04/2021.
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