Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1973-2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
GREATER BOMBAY
NOTICE OF MOTION NO. 1973 OF 2018
(CNR NO. MHCC01-006483-2018)
in
L.C. SUIT NO. 1914 OF 2019
Sujata Devram Gamre & Others
....Plaintiffs
Versus
MCGM & Others .
... Defendants
CORAM: H.H.JUDGE & ADDL.
SESSIONS JUDGE,
SHRI. K. P. KSHIRSAGAR,
(C.R. No.05).
DATE : 7th September, 2021.
Appearance:
-
Shri. Rajesh Kanojia; Ld Advocate for plaintiff.
Smt. Vyavahare; Ld Advocate for defendants No.1 & 3/MCGM.
Shri. Rajdeep Lahiri; Ld Advocate for defendant No.2.
ORAL ORDER
1) Plaintiffs have taken out this Notice of Motion for grant of
interim relief of temporary injunction.
2) Perused the Notice of Motion, affidavit in support of Notice
of Motion, plaint and documents annexed with the plaint and documents
filed by plaintiffs. Perused the reply of the defendants and documents
filed by defendant No.1. Heard Ld Advocate for plaintiffs and defendant
No.1 & 2.
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3) Ld Advocate for plaintiffs argued that principal tenant
Laxman Gamre was the brother of Devram Gamre who was the husband
of plaintiff No.1 and father of plaintiff No.2 and 3. Tenancy of room
No.51, BIT chawl, chawl No.3, A.K. Marg, Satrasta Mumbai-11
(hereinafter referred as suit premises) was obtained in the name of
Laxman Gamre as he was elder brother of Devram Gamre. Defendant
No.1 is owner of suit premises. Since beginning the husband of the
plaintiff No.1 was residing in the suit premises alongwith his family
alongwith Laxman Gamre. Therefore, plaintiffs are the lawful occupants
of the suit premises and after death of Laxman Gamre and Devram
Gamre tenancy of the suit premises ought to have been transferred in the
joint name of plaintiffs and defendant No.2 who is the wife of deceased
Laxman Gamre. However, inspite of the circular of the defendant No.1
dtd. 12/9/1990 defendant No.1 illegally transferred the tenancy of suit
premises in the name of defendant No.2 only. Plaintiffs are having 50%
rights in the suit premises and as the suit premises is under
redevelopment, they are entitled for 50% benefits thereof alongwith the
defendant No.2. As the suit premises is already demolished and plaintiffs
were evicted from the suit premises on 30/5/2018, interim relief to the
extent of directing defendants to provide agreement for alternate transit
premises/rent, corpous fund and permanent premises jointly with the
defendant No.1 be granted to the plaintiffs. Hence, Ld. Advocate or
plaintiffs prayed that Notice of Motion be allowed accordingly.
4) The Ld Advocate for defendant No.1 argued that Laxman
Gamre was the principal tenant of the suit premises and after his death
on the application of defendant No.2 the tenancy of the suit premises
was transferred in the name of defendant No.2 being wife and class I
heir of the principal tenant by following due process of law. Mere fact
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3 NM 1973-2018
that plaintiffs were in occupation of the suit premises is not sufficient to
claim any right therein. The plaintiffs have no legal right in the suit
premises. Plaintiffs were evicted in the year 2018. Moreover, the notice
of motion became infructuous as the suit premises is already demolished.
The plaintiffs have not claimed declaration that they are having 50%
share in the suit premises and they are entitled for joint tenancy
alongwith defendant No.2 in present suit. Hence, Notice of Motion be
dismissed.
5) Ld Advocate for defendant No.2 vehemently argued that suit
premises is already demolished and present notice of motion became
infructuous. Defendant No.2 is the principal tenant and mere fact that
plaintiffs were residing in the suit premises does not give them any right
to claim the relief prayed in the notice of motion. Hence, 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 primafacie case lies in favour of
plaintiffs ?
No.
(ii) Whether balance of convenience lies in
favour of plaintiffs ?
No.
(iii)Whether plaintiffs will suffer irreparable
loss if Notice of Motion is not allowed ?
No.
(iv) What Order ? As per final order.
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REASONS
AS TO POINT NOS. 1 TO 3:-
7) As all these points are interrelated with each other they are
decided simultaneously in order to avoid repetition of facts.
8) In the present notice of motion plaintiffs prayed for the
interim relief that court be pleased to stay the impugned notice dtd.
27/4/2018 issued by defendant No.1 and to grant temporary injunction
restraining defendant No.1 from evicting, dispossessing the plaintiffs
from the suit premises without compliance of due process of law and
without providing them agreement for alternate transit premises/rent,
corpous fund and permanent premises jointly with defendant No.2.
However, in the present matter admittedly the plaintiffs were evicted
from the suit premises in the year 2018 and the suit premises is already
demolished. Thus from the admitted fact itself it is clear that the
impugned notice is already excuted and plaintiffs are already evicted
from the suit premises without providing any relief as claimed above. As
such there is substance in the contention of the defendants that the
notice of motion became infructuous.
9) Moreover, in the present matter plaintiffs have not
challenged the transfer of tenancy of suit premises in the name of
defendant No.2 nor claimed any declaration that they are having 50%
share in the suit premises and they are entitled for joint tenancy of the
suit premises alongwith defendant No.2. From the documents of the
plaintiffs and pleading of the plaintiffs it is clear that plaintiffs filed suit
No.1831/17 for the above relief. Admittedly, till date there is no such
declaration in favour of the plaintiffs. Fact that Devram and plaintiffs
were occupants of suit premises is not disputed. Mere fact that plaintiffs
were occupants of the suit premises itself is not sufficient at this stage to
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confer the benefits of redevelopment pertaining to the suit premises.
Therefore, prima facie there is no material to show that plaintiffs are
having any legal right in the suit premises.
10) On the other hand admittedly defendant No.1 is owner of
sut premises and the tenancy of the suit premises is in the name of
defendant No.2 who is the wife of principal tenant Laxman Gamre. As
such defendant No.2 prima facie appears to have legal right in the suit
premises. The perusal of the circular of MCGM of the year 1972-73 relied
by the defendant No.1 reveals that after the death of principal tenant
tenancy is to be transferred in the name of his class I heir and the claim
of class I heir should be considered first and in the absence of class I heir
the tenancy may be transferred to class II heir. Circular dtd. 12/9/1990
relied by the plaintiffs do not reveal that it repealed the above circular of
the year 1972-73. Therefore, prima facie there appear no substance in
the contention of the plaintiffs that tenancy of the suit premises is
illegally transferred in favour of defendant No.2. Moreover, considering
the matter on record the entitlement of the plaintiffs for the reliefs
pertaining to the benefits of redevelopment cannot be considered at this
interim stage and it will have to be decided on merit.
11) From the matter on record prima facie there appear no legal
right in favour of plaintiffs in the suit premises and there appear no
serious bonafide question which requires adjudication in the present
matter. Equity seeks equity. As such prima facie case does not lie in
favour of plaintiffs. Therefore, balance of convenience also does not lie
in favour of plaintiffs and no irreparable loss will be caused to the
plaintiffs if the Notice of Motion is not allowed. Therefore, points No. 1
to 3 are answered in negative.
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As to point No.4:-
12) In view of negative findings as to point Nos. 1 to 3 and
considering the matter on record, Notice of Motion is liable to be
dismissed with costs. Hence, court proceeds to pass the following order:-
ORDER
1) The Notice of Motion No. 1973/18 is dismissed with costs.
2) The Notice of Motion No. 1973/18 is disposed of
acordingly.
Date:07/09/2021. (K.P. Kshirsagar)
Judge
C.R.No.5
City Civil Court
Gr. Bombay
Dictated & directly typed on : 7/9/2021.
Checked on : 7/9/2021.
Signed by HHJ on : 7/9/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
8/9/2021. Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
7/9/2021.
JUDGMENT/ORDER signed by P.O.
on
7/9/2021.
JUDGMENT/ORDER uploaded on 8/9/2021.
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