Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 197118 in SU 324918
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1971 OF 2018
(CNR No.MHCC010064942018)
IN
SUIT No.3249 of 2018.
(CNR No.MHCC010133362017)
Laxmi Ramchandra Pokharkar }...PLAINTIFF.
Versus
State of Maharashtra & Ors. }...DEFENDANTS.
Shri.Daswadikar, learned advocate for the plaintiff.
Shri.Kudalkar, learned AGP for defendant No.1.
Smt.Prabhu, learned advocate for defendant Nos.2 & 3.
Shri.Jain, learned advocate for defendant No.4.
CORAM: HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 22.03.2019)
1. By filing this Notice of Motion, plaintiff has claimed relief
to stay the effect & implementation of notice dt.29/06/2019 issued to
the plaintiff by defendant No.3 under Section 66b of MHADA Act, to
temporarily restrain defendant Nos.2 to 4 from entering upon or from
interfering into plaintiff's possession over the suit premises, pending
final disposal of the suit. Read the affidavit filed in support of Notice of
Motion. Defendants have failed to file reply to the Notice of Motion
hence, Notice of Motion has proceeded further without reply of
defendants. Learned advocate for defendant Nos.2 & 3 so also, learned
advocate for defendant No.4 vehemently opposed the Notice of Motion
by submitting oral arguments. Heard learned Shri.Daswadikar, advocate
for plaintiff, learned Smt.Prabhu, advocate for defendant Nos.2 & 3 and
learned Shri.Jain advocate for defendant No.4. None appeared to
contest the Notice of Motion on behalf of defendant No.1. Perused the
entire record.
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2. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether primafacie case lies in favour of the
plaintiff? ...No.
ii)Whether balance of convenience lies in favour
of the plaintiff? ...No.
iii)Whether irreparable loss will cause to the
plaintiff if injunction as prayed is not granted? ...No.
iv)What order? ...As per final order.
R E A S O N S
AS TO POINT Nos.(i) TO (iii):
3. All the points are taken together for consideration. Learned
advocate for plaintiff argued that plaintiff's husband Ramchandra & two
brothers by names Tulshiram & Haushinath of plaintiff's husband had
started Transport business in Mumbai in year 1971 by utilizing the
funds of their joint family but elder brother Tulshiram opted to do
ancestral agricultural business by staying at the native place instead of
coming to Mumbai. He argued that plaintiff's husband & brother
Haushinath of plaintiff's husband purchased Room No.B25 in Umar
Shethchi Chawl & Room No.83 in Marwari Chawl at Mumbai in the
name of Haushinath in year 1972 for permanent accommodation of
their family by utilizing the funds raised from Transport Business. He
argued that plaintiff's husband was paying rent of Room No.83 &
plaintiff along with her husband & other family members was staying in
said Room No.83 & thereafter, in the redeveloped premises though,
name of Haushinath is shown as owner of said premises. He argued that
at the time of redevelopment, Room No.83 in building No.9 at Sion
Koliwada was provided as transit accommodation to the plaintiff's
husband & his family in lieu of Room No.83 in Marwari Chawl where,
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they stayed till year 197980 & after the redevelopment of Marwari
Chawl, possession letter in respect of suit premises is issued in the name
of plaintiff's husband after issuance of letter of allotment & possession
letter is duly signed by brother Haushinath of plaintiff's husband. He
argued that plaintiff has produced sufficient documents to show that
she along with her family is in lawful possession of the suit premises
since lifetime of her husband & as such, they are covered by the
definition of 'Occupier' given in Section 2(25) of MHADA Act yet,
defendant No.2 & 3 have issued false notice to the plaintiff at the
instance of defendant No.4 under Section 66(b) of MHADA Act. He
further argued that MHADA has no authority to issue notice under
Section 66 of MHADA Act to the plaintiff and perusal of the contents of
notice issued by defendant/MHADA makes it clear that it is issued in
the form of order to the plaintiff to vacate the suit premises without
giving opportunity of hearing as it is directed by the said notice to hand
over possession of the suit premises to the office of MHADA. He argued
that if possession of the suit premises is taken from the plaintiff on the
basis of the said notice, it will cause an irreparable loss to the plaintiff
due to which, it is necessary to restrain the defendants from interfering
into plaintiff's possession over the suit premises pending final decision
of the suit by granting temporary injunction in favour of the plaintiff.
4. As against this, learned advocate for defendant Nos.2 & 3
argued that husband of plaintiff has got the suit premises transferred in
his name on the basis of fraudulent documents & notice is issued to the
plaintiff by the Competent Authority & not by MHADA. She argued that
proceeding as per the notice issued to the plaintiff has been initiated by
Competent Authority & there is nothing in the notice to show that
MHADA is intending to remove the plaintiff from the suit premises
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without following the due process of law due to which, plaintiff is not
entitled for interim injunction.
5. Learned advocate for defendant No.4 argued that affidavit
of NOC is not signed by any other heir than widow of brother
Haushinath of plaintiff's husband, notice is given to the plaintiff by
Competent Authority for taking action under Section 66(b) and plaintiff
can file appeal against the said order due to which, plaintiff is not
entitled for interim reliefs as, according to him, this court has no
jurisdiction to grant injunction against the order passed by the
Competent Authority.
6. Having gone through the material produced on record by
the plaintiff in support of prayers made in the Notice of Motion, it
appears at this stage that plaintiff is in possession of the suit premises.
Plaintiff has contended that she has acquired rights in the suit premises
through her husband and her husband had acquired rights in the suit
premises by virtue the letter of allotment issued in favour of her
husband. Learned advocate for the plaintiff argued that the defendants
Nos.2 & 3 are bent upon removing the plaintiff from the suit premises
forcibly and on that count, those defendants have issued false notice
dt.29/06/2017 to the plaintiff at the instance of defendant No.4 & by
issuing the said notice, plaintiff is directed to vacate the suit premises
without giving opportunity of hearing to the plaintiff.
7. Learned advocate for the plaintiff though argued that
wording of the notice issued to the plaintiff shows that defendants are
trying to get the suit premises vacated from the plaintiff forcibly,
perusal of said notice does not support his said argument as it is
specified in the notice that in case of failure of plaintiff to vacate the
suit premises within the period mentioned in the said notice, action
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under Section 66b of the MHADA Act will be taken. It means that
though, plaintiff is directed to vacate suit premises by issuing the said
notice, it is mentioned therein that in case of failure of plaintiff to
vacate the suit premises, action under Section 66b of the Act will be
taken. Learned advocate for defendant/MHADA submitted at the bar
that Competent Authority has commenced the proceedings after
issuance of said notice and defendant Nos.2 & 3 will not remove the
plaintiff forcibly from the suit premises without following the due
process of law. Considering those aspects of the matter, I could not find
any force in the argument of learned advocate for the plaintiff that
defendant Nos.2 to 4 are trying to remove the plaintiff from the suit
premises forcibly.
8. It may be stated that in case of passing any order adverse to
the interest of the plaintiff by the Competent Authority, plaintiff will
have the remedy to challenge the said order by filing appeal as is
prescribed in Section 70 of MHADA Act. Even though, plaintiff has
contended that opportunity of hearing is not given to her before
issuance of said notice, learned advocate for defendant Nos.2 & 3
submitted that the notice for hearing has been served upon the plaintiff
and the inquiry is being conducted by Competent Authority. Apparently,
it appears from the argument advanced at the bar by learned advocate
for defendant Nos.2 & 3 that any immediate action is not being taken
for removing the plaintiff from the suit premises on the basis of the
notice/order dtd.29/06/2017 served on the plaintiff hence, there
appears no substance in the contention of the plaintiff, at least at this
stage of the proceeding, that defendant Nos.2 & 3 are trying to remove
the plaintiff forcibly from the suit premises.
9. Plaintiff has claimed relief to stay effect & implementation
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of notice dtd.29/06/2017 by contending that said notice is issued
illegally. As per the provisions of Section 71 of MHADA Act, Civil Court
cannot grant injunction to stay the process undertaken by the MHADA
Officer or by Competent Authority under Chapter VI of MHADA Act.
This Court is not the Appellate Court in respect of the notice issued by
Competent Authority under Section 66(b) of MHADA Act hence, there is
no question of accepting the prayer made by the plaintiff to stay the
effect and implementation of the said notice by this court. Furthermore,
as mentioned earlier, learned advocate for defendant Nos.2 & 3
submitted at the bar that opportunity of hearing is being given to the
plaintiff by the Competent Authority & those defendants will follow the
due process of law. All those circumstances have made me to hold that
neither primafacie case nor balance of convenience do lie in favour of
the plaintiff. In the result, there is no question of causing any
irreparable loss to the plaintiff if injunction as prayed is not granted. For
these reasons, I recorded my findings on point Nos.(i) to (iii)
accordingly & pass the following order.
O R D E R
Notice of Motion No.1971/2018 stands rejected.
Costs in the main cause.
Date: 22/03/2019. (P.P.RAJVAIDYA)
Direct dictated on : 22/03/2019. Judge, C.R.No.12,
Checked on : 26/03/2019. City Civil Court,
Signed on : 26/03/2019. Gr.Bombay.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
26/03/2019 at 11.30 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.12)
Date of pronouncement of Order 22/03/2019
Order signed by P.O. on 26/03/2019
Order uploaded on 26/03/2019
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