Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 2019 OF 2018
IN
L.C. SUIT NO. 2526 OF 2018
Hiralal Rajaram Yadav .. Plaintiff
Versus
Shobha Chatturam Jaiswar & Anr. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 9th January, 2019
Mr. Holmagi , ld. adv. for plaintiff.
Mr. Pandey, ld. advocate for defendant no. 1.
Ms. Hajare, ld. adv. for defendant no.2 /BMC.
O R D E R
1. This N/m is taken out by plaintiff for holding that
defendant no. 1 has no right to change identity of suit premises and to
put up any construction in suit premises and not to interfere in the
family arrangement in respect of suit premises i.e. room in chawl no.
20, Mathura Seth Chawl, Khajuribhatti, Chunnabhatti, Hill Road, Sion,
Mumbai. Plaintiff has further prayed for mandatory order to remove
unauthorized construction from suit premises. Plaintiff has also prayed
for temporary injunction restraining defendant nos. 2 and 3 not from
giving any permission to defendant no. 1 in respect of suit premises.
Lastly plaintiff has prayed for temporary injunction restraining
defendant no. 1 from putting up any construction on suit premises.
Plaintiff has filed his affidavit in support of Notice of Motion contending
that he is intending to rely on the contentions raised in the plaint.
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2. As mentioned in the plaint, plaintiffs predecessor had
acquired property bearing survey no. 288 hissa no. 1 (pt) CTS Nos. 390,
390/1 to 15 and they had constructed chawl in suit property which is
known as Mathura Seth Chawl. Rough sketch of suit premises I..e room
no. 20 from said chawl is annexed to the plaint. Plaintiff is paying NA
tax as his predecessors are expired and plaintiff has become absolute
owner of suit premises. The land upon which suit premises is situated
is originally belonging to Ardaseer Hormarjee Wadi Trust. Plaintiff's
predecessors were paying rent to said Trust and plaintiff is also paying
rent to said Trust. It is alleged that defendant no. 1 is forcibly
occupying premises shown in the rough sketch annexed to the plaint.
Defendant no. 1 is occupying said premises without paying anything
and she is enjoying all the benefits. Plaintiff has contended that he is
having property card, Municipal assessment bill, water charges bill etc.
The tax record of suit premises is in the name of late Rajaram Mathura
the father of plaintiff and said record is under number L 365,20, Sion
Chembur Road, Tiled Chawl.
3. It is alleged that defendant no. 1 is encroacher and she is
trying to change the nature of structure and trying to reconstruct it.
Defendant nos. 2 and 3 are in collusion with defendant no. 1 and
inspite of repeated complaints, defendants are trying to use force. It is
alleged that defendant no. 1 is changing the nature of premises and
reconstructing and encroaching upon the open land belonging to
plaintiff. Hence plaintiff had made complaints to various authorities
regarding said illegal construction of defendant no. 1 but defendant
nos. 2 and 3 have not given any response. Plaintiff has alleged that
action of defendant is illegal and therefore plaintiff has approached the
Court.
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4. Defendant no. 1 has filed affidavit of her reply contending
that the N/m is misconceived, malafide and illegal. Plaintiff has not
come before the Court with clean hands and has suppressed the
material facts from the Court. It is alleged that plaintiff has illegally
disconnected electric connection and water connection of suit premises
and not allowing defendant no. 1 to do tenantable repairs of suit
premises. Plaintiff had obtained ad interim injunction on 03.06.2018
but has not complied the directions given by the Court. It is contention
of defendant no. 1 that suit premises is in dilapidated condition and so
many times defendant no. 1 and her husband requested plaintiff to
allow them for its tenantable repair. However plaintiff being office
bearer of political party namely National Congress does not allow such
repairs. It is alleged that plaintiff is not allowing other tenants or
occupiers to carry out permissible repairs. Suit premises was
constructed before 1970 and it is kaccha structure made of clay and
bricks and mangalore tiles. It is alleged that suit structure and chawl
are constructed illegally without sanctioned plan and without any
permission. In the month of May 2008 back side and right side wall of
suit premises got cracks and rats have made holes in the same. Tiled
roof was also damaged. Therefore defendant no. 1 was filling holes of
damaged portions of the walls but plaintiff obstructed the same. Hence
defendant no. 1 has obtained repair permission dated 14.06.2018 from
BMC. Thereafter on 15.06.2018 she started repair work but plaintiff
obstructed the same. On 16.06.2018 police officer called plaintiff but
plaintiff had told them about the ad interim order passed by Court on
03.06.2018. Hence after receiving certified copy of said order
defendant no. 1 came to know plaintiff obtained said copy on
03.06.2018 and on that date it was Sunday. It is contended that said
order was obtained by plaintiff on false affidavit of service of notice.
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Plaintiff has obtained said order by making false statement and by
producing false documents by misguiding vacation Court.
5. It is alleged that plaintiff has not made of compliance of the
provisions of Order 39 Rule 2 of CPC and also did not serve orders
upon defendant no. 2 till 11.06.2018 and therefore defendant no. 1 is
unable to repair suit premises though repair permission was granted by
BMC in her favour. It is contention of defendant no. 1 that her
husband Chhaturam @ Chatturam @ Chhattu @ Chhoutram @
Chakturam Punwasiram Jaiswar took the suit premises on tenancy basis
in the year 1972 and since then defendant no. 1 and her family
members are residing in it. Plaintiff's brother who was looking affairs of
chawl was not issuing rent receipts. However defendant no. 1 has
ration card to show her address. Her son Amit Kumar was born on
14.06.1978 and her other son Vinod Kumar was born on 14.07.1979.
Birth of both sons were registered in birth records of Mumbai Municipal
Corporation. Birth certificates and vaccination certificate issued for her
sons are showing address of suit premises. She is having certificate of
Peerless Insurance having same address. She is having electric
connection having same address. Name of her husband is included in
voters list showing same address. She has letters and correspondences,
pass book etc showing same address. She is having gas connection in
the name of Sunilkumar and record of gas connections showing same
address.
6. It is contended that suit property is declared as slum area
by competent authority. Suit premises was censused on 21.07.2000 in
the name of her husband and photopass is issued. The survey sheet is
also issued. It is alleged that plaintiff being political activist is
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troubling defendant no. 1. It is contended that husband of defendant
no. 1 died on 17.06.2014 leaving behind defendant no. 1, her two sons
and a daughter and they succeeded rights, title and interest in suit
premises. However plaintiff is not allowing defendant no. 1 to make
permissible repairs. It is alleged that electric wire and water pipe line
were disconnected by plaintiff with intention to harass defendant no.1
and other tenants however when defendant no. 1 tried to reconnect
electric connection and water pipe line plaintiff is not allowing her. It
is admitted that plaintiff is in use occupation and possession of suit
structure shown in the sketch map annexed to the plaint. It is alleged
that plaintiff has tried to get vacated 5 rooms and 2 shops from tenants.
Plaintiff has filed cases against tenants but could not get the possession
hence plaintiff is trying to pressurise husband of defendant no. 1.
Plaintiff filed false eviction suit No. RAE and R Suit No. 2362 1988
against husband of defendant no. 1. However said suit is dismissed by
the Judgment dated 30.06.2003. Plaintiff challenged said suit by filing
Appeal No. 694 of 2005. However said Appeal came to be dismissed by
Judgment dated 09.10.2009. It is alleged that plaintiff is obstructing
in the possession of defendant no. 1 plaintiff and his family members
are trying to assault defendant no. 1 and her family members. Hence
various complaints are filed against plaintiff.
7. I have heard plaintiff's adv. Mr. Holmagi and Mr. Pandey
for defendant no. 1. I have perused the documents annexed to the
plaint as well as documents annexed to the affidavit of reply of
defendant no. 1. Plaintiff has placed reliance on the rent receipt issued
by Wadia Trust in the name of Mathurai. Said receipt is for the period
ending upto 31.01.1979 and it is in respect of land from Survey No.
288. Plaintiff has also placed reliance on the land revenue payment
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receipt, copy of PR cards of CTS No. 390 and 390/1 to 15 are filed by
plaintiff on record showing that said land is standing in the name of
Sumaribai Rajaram Yadav. Defendant no. 1 has placed reliance on the
repair permission dated 14.06.2018 granted by defendant/BMC in
favour of defendant no. 1 for tenantable repair of room no. 6 from
chawl no. 20 of Mathura Seth Chawl. Defendant no.1 has filed copies
of various complaints filed by her against plaintiff. She has filed copy of
Ration Card showing her name as Shobhadevi Ram @ Chottu Ram and
her address as room no 6 from chawl no. 20. Birth certificate and
vaccination certificates of her both sons showing address as room no. 6.
Document from Peerless General Finance company is also filed by
defendant no. 1 showing her same address. Electricity bills, Voters
Registration Certificate, gas connection document, slum declaration etc
are filed by defendant no. 1 on record. She had also filed Judgment of
RAE and R Suit No. 2362 of 1988 which was filed against husband of
defendant no. 1 and others. Said suit is dismissed. Copy of judgment
of Appeal No. 694 of 2005 is also filed by defendant no. 1 on record
showing that said appeal is dismissed. In the course of arguments
plaintiff's advocate has referred death certificate of husband of
defendant no. 1 showing his address from Navi Mumbai.
8. In arguments it was contended on behalf of plaintiff that
suit premises is vacant and defendant no. 1 or her family members are
not residing in it as they had left it. It is contention of plaintiff's
advocate that death certificate of husband of defendant no. 1 shows her
address from Navi Mumbai. Hence according to advocate for plaintiff
it can be held that defendant no. 1 is not possessing suit premises.
Further according to plaintiff's adv. defendant no. 1 is not having any
rent receipts hence it cannot be believed that defendant no. 1 is tenant
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of plaintiff and she has right of tenantable repair. The copy of death
certificate of husband of defendant no. 1 upon which plaintiff is
intending to rely is showing the last address of husband of defendant as
Sai Krushna Kunj Cooperative Housing Society, Plot no. 62, room no.
302, Jui Nagar, Sector 23, Navi Mumbai. In reply it was argued by
advocate for defendant no. 1 that various documents filed by defendant
no. 1 show address of defendant no. 1 as room no. 6, chawl no. 20
Mathura Seth Chawl. Hence according to for defendant no. 1 death
certificate of husband of defendant no. 1 is not useful to come
conclusion that defendant no. 1, her sons and daughter are not
possessing room no. 6 from chawl no. 20 Mathura Seth Chawl.
9. Roznama of the suit shows that on 03.06.2018 in summer
vacation my learned predecessor had granted ad interim injunction
order against defendant no. 1 restraining her from making illegal
construction in room no. 6 of chawl no. 20 Mathura Seth Chawl. From
perusal of order dated 03.06.2018 it becomes clear that on said date the
Court has come to conclusion that defendant no. 1 was making illegal
construction in room no. 6 chawl no. 20. However, the repair
permission obtained by defendant no. 1 is having date 14.06.2018. As
such, said permission obtained by defendant no. 1 was obtained after
injunction order passed by the Court. I am afraid of the fact that
whether defendant no. 1 can have benefit of such order which was
obtained subsequently after passing injunction order by the Court. It is
true that defendant no. 1 has filed so many documents on record
showing her address as Room no. 6, Chawl No. 20, Mathrua Sheth
Chawl. The Judgment of RAE and R suit no. 2362 of 1988 makes it
clear that husband of defendant no. 1 was tenant of plaintiff. Hence
on the basis of said judgment it can be prima facie hold that defendant
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no. 1 is tenant of plaintiff. Now the only question remains about the
fact that whether defendant no. 1 can make tenantable repairs or any
kind of repairs of room no. 6 from Chawl no. 20 without permission of
landlord. Admittedly plaintiff is landlord and defendant no. 1 has
contended that plaintiff is not permitting her to make tenantable repairs
of room no. 6. However there is no document on record to show that
defendant no.1 has made request in writing to plaintiff for such
tenantable repairs. If really defendant no. 1 would have made any
such request in writing and thereafter if plaintiff would have refused for
such tenantable repairs, contentions raised by defendant no. 1 could
have been believed. From the judgments of RAE and R Suit No. 2362
of 1988 and Appeal No. 694 of 2005 it becomes clear that plaintiff is
bent upon to get vacated room no. 6 from defendant no.1 and her
family members. Those judgments make it clear that Court has not
granted decree of eviction in favour of plaintiff. In such circumstances,
plaintiff cannot evict defendant no. 1 or her family members forcibly
from room no. 6. On the basis of those judgments it becomes
necessary to observe that death certificate of husband of defendant no.
1 is not useful for plaintiff to contend that plaintiff is not possessing
room no. 6 and she is trying to encroach on open space. As contended
in the plaint said room no. 6 was already collapsed and it is alleged by
plaintiff that defendant no. 1 is trying to make encroachment on the
open space of said room no.6. However, plaintiff has not filed any
document to show that said room was collapsed and there is open space
in place of said room. If really there would have been any open space
in place of room no.6 , plaintiff would have given in plaint specific
dimensions, four boundaries etc. of said open space. However plaintiff
has not given any such description of open space. Hence it cannot be
believed that said room no. 6 was collapsed and there is open space.
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On the contrary, from the documents filed on record it becomes clear
that defendant no. 1 and her family members are tenants of plaintiff.
In such circumstances, I find that plaintiff cannot restrain defendant no.
1 from making tenantable repairs of said room no. 6. However,
defendant no. 1 cannot make such tenantable repairs without
requesting plaintiff in writing. I have already observed that defendant
no. 1 has obtained permission dated 14.06.2018 for tenantable repairs
of room no. 6. However, said permission was obtained after granting
ad interim order by the Court in favour of plaintiff. In such
circumstances as said permission was obtained by defendant no. 1 when
ad interim order was in force and as said repair permission was
obtained by defendant no. 1 without consent of plaintiff I find that on
the basis of said repairing permission, defendant no. 1 cannot make
repairs of suit premises. However from the documents on record it
becomes clear that defendant no. 1 is tenant of room no. 6, hence she
can make tenantable repair by giving written notice to plaintiff and by
making application to BMC for fresh repairs permission by annexing
copy of written intimation or written request made to plaintiff for
allowing defendant no. 1 for tenantable repairs. However unless
defendant no. 1 requests plaintiff in writing for allowing defendant no.
1 for such tenantable repairs, it will not be proper on the part of
defendant no 1 to make any such repairs. Hence I proceed to pass
following order.
O R D E R
1. Defendant no. 1 is temporarily restrained from making repairs of
room no. 6, chawl no. 20, Mathura Seth Chawl, Khajuribhatti,
Chunnabhatti, Hill Road, Sion, Mumbai till defendant no. 1
makes written request to plaintiff for allowing her to make
tenantable repairs in room no. 6 and till she obtains fresh
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permission from BMC for making such tenantable repairs by
annexing copy of written request made to plaintiff to the
application for getting such permission.
(K.P.Nandedkar)
Judge,
City Civil Court,
09/01/2019 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
14/01/2019 Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 09/01/2019
Judgment/order signed by P.O on 14/01/2019
Judgment/order uploaded on 14/01/2019
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