Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010078632019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2844 OF 2019
IN
SUIT NO. 1074 OF 2019.
Mrs. Anuya Sunil Murkar ]..Plaintiff.
V/s.
1. Mrs. Sindhu Abhay Shivalkar]
and others. ]..Defendants.
Advocate Mr. P.S. Madkaikar for the plaintiff.
Advocate Mr. G.N. Pandit for defendant No.1.
Advocate Ms. Mangal Kadam for defendant No. 3/MHADA.
Advocate Mr. Saisha Pisal for defendant No.4.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 23rd NOVEMBER 2023
ORAL ORDER
The plaintiff has taken out present Notice of Motion
seeking relief of mandatory order of injunction directing the defendant
Nos.2 and 4 to enter and execute the Agreement for Permanent
Alternate Accommodation with the plaintiff and for restraining them
from entering and executing any Agreement for Permanent Alternate
-- 1 of 11 --
2
Accommodation with the defendant No.1 in lieu of the suit premises
and for temporary order of injunction restraining the defendant Nos.2
to 4 from granting Temporary Alternate Accommodation in lieu of suit
premises to defendant No.1 and for directing defendant Nos.2 and 4 to
make payment of Corpus Funds, any other payments payable by the
defendant Nos.2 and 4 to the plaintiff towards the benefits of
redevelopment of the property and/or payment of any compensation for
the Temporary Alternate Accommodation and for restraining defendant
Nos.2 and 4 from making any such payment to defendant No.1 and for
temporary injunction restraining the defendant Nos.2, 3 and 4 from
submitting, acting upon, considering and relying upon the documents of
the defendant No.1 for the purpose of redevelopment and for
restraining them from disturbing the peaceful possession of plaintiff
from the suit premises.
2. It is the contention of the plaintiff that she is a lawful
occupant and is in exclusive use, occupation and possession of Room
No.13, situated on Ground floor in Tardeo, Navyoja Sadan CHS Ltd.,
situated near Diana Cinema, Tardeo, Mumbai-400 034 (Hereinafter
referred to as “suit premises”). The plaintiff and the defendant No.1 are
real sisters and married daughters of Late Raman Shivram Rajwadkar
and Mrs. Uma Raman Rajwadkar. Their mother Mrs. Uma Raman
Rajwadkar approximately in 1977-78 separated from their father, Mr.
Raman Shivram Rajwadkar and remarried with Mr. Ramchandra Achut
Chavhan and since then she is residing with him at Malwan, District
Sindhudurga. The plaintiff’s father died on 18.02.2009 in the suit
premises. The plaintiff looked after him and maintained him until his
death. The defendant No.1 never looked after him or took care of him.
-- 2 of 11 --
3
3. It is further contended that the plaintiff’s father was owner
of Room No.13 i.e. suit property. The plaintiff paid maintenance
charges and all other outgoing of the suit premises since inception.
However, defendant No.1 has since about last two years started paying
the maintenance bills of the society after the malafide and fraudulent
transfer of shares and membership of society in her name to create false
documentary evidence of occupation. The defendant No.1, after the
death of Raman Rajwadkar got transferred the shares and membership
of the said society in her name. The plaintiff challenged the same
before the Competent Authorities.
4. It is further contended that the defendant No.2 society is
contemplating for proposed redevelopment of building of said society
wherein the suit premises is situated and has appointed a Developer/
Builder namely M/s. Crystal Progressive LLP, being defendant No.3 for
redevelopment of the suit property. The defendant No.2 society is
contemplating to enter into an Agreement for Permanent Alternate
Accommodation with the defendant No.1, being the real sister of the
plaintiff in lieu of the suit premises. The plaintiff had already addressed
the defendant No.2 society several letters by herself and through her
advocate prior hereto recording her strong objection for entering and
executing the Agreement for Permanent Alternate Accommodation with
defendant No.1. Defendant No.2 however surprisingly raised a false
contention that the plaintiff has not established her ownership right in
the suit premises despite admitting themselves that the plaintiff and
defendant No.1 are legal heirs of deceased and also asked to produce
succession certificate. It is contended that defendant No.1 is not an
occupant of the suit premises and is also not in use, occupation and
possession thereof.
-- 3 of 11 --
4
5. It is further contended that the plaintiff being a lawful
occupant of the suit premises and in exclusive use, occupation and
possession of the suit premises in pursuance of the Judgment and
Decree dated 18.10.2011 passed in S.C. Suit No.2822 of 2009 filed in
this Court is entitled to exclusive use, occupy and reside in the suit
premises and is also entitled to enter and execute the Agreement for
Permanent Alternate Accommodation with the defendant Nos.2 and 4 in
lieu of the suit premises upon redevelopment of the suit property.
Hence, the plaintiff has prayed for allowing Notice of Motion in terms of
prayer clauses.
6. The defendant No.1 has filed her Affidavit-in-reply in
support of Notice of Motion and strongly opposed the same. According
to her, the subject Room No.13 belongs to her and she is the owner of
the same. The share certificate for the same is issued by the Tardeo
Navyojana Sadan CHSL in her name. All the maintenance bills of the
said room are being paid by her to the society and she is in possession
of all the necessary receipts, bills and documents showing her
ownership of the room and the membership of the society. She shall
also rely upon the correspondence with the society and other
authorities, the order and judgment passed by the Registrar Co.op.Court
dated 19.03.2012 declaring her as the member of the society and also
on the Judgment passed by the Family Court on 29.06.1992 in M.J.
Petition No.A-1518/1990. The plaintiff was never in exclusive use,
occupation and possession of the subject room as alleged by her. She
has falsely given her address that of the subject room, however she
resides at Bandra, Government Colony at the quarters allotted to her
husband, as he being a Home Guard and in Government Service.
-- 4 of 11 --
5
7. The defendant No.1 has specifically denied that the plaintiff
and defendant No.1 are real sisters. She contended that her parents
were separated in 1977-1978 as it was found that her mother had an
affair with Ramchandra Chavhan and with whom she later on got
married. The plaintiff was residing with her mother and said
Ramchandra Chavhan at Malwan and never with Shri Raman
Rajwadkar, as he never recognized the plaintiff as his daughter. The
very fact that late Raman Rajwadkar nominated her as his legal heir
and daughter for the subject room is enough to show that her late
father never recognized plaintiff as his daughter. The defendant No.1
denied that the plaintiff and her husband are residing at the suit
premises. The defendant No.1 being the owner and the member of the
society is entitled to the permanent alternate accommodation in lieu of
the subject room No.13. The plaintiff, out of greed and dishonesty is
trying to pressurize the authorities and defendant No.5. the plaintiff is
no way concerned with the suit room. Hence, it is prayed that Notice of
Motion be dismissed with costs.
8. Perused Notice of Motion and Affidavit in support of Notice
of Motion. Also perused Affidavit-in-reply filed by the defendant No. 1.
Perused documents relied upon by both the sides. Heard learned
advocate for both the parties at length.
9. The following points arise for my determination and I have
recorded my findings to each of them for the reasons stated below.
-- 5 of 11 --
6
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has made out
prima facie case in her favour ?
In the
Negative
2 Whether the balance of convenience lies
in favour of the plaintiff ?
In the
Negative
3 Whether the plaintiff has proved that
she will suffer irreparable loss, if the
Notice of Motion is dismissed?
In the
Negative
4 What order? As per the final order
R E A S O N S
AS TO POINT NO.1 :
10. From the rival pleadings and documents on record, it
appears that the plaintiff and defendant No.1 both are claiming to be in
exclusive use, occupation and possession of the suit premises. It is not
disputed that the suit property was originally belonging to Raman
Rajwadkar. According to the plaintiff, she and defendant No.1 are real
sisters and daughters of Raman Rajwadkar. Whereas according to
defendant No.1, the plaintiff and defendant No.1 are not real sisters.
Their parents separated in 1977-1978 as it was found that her mother
had an affair with Ramchandra Chavhan and with whom she later on
got married. According to defendant No.1, the plaintiff is the daughter
of said Ramchandra Chavhan and not daughter of Raman Rajwadkar
who was her father and the plaintiff has no concern with Raman
Rajwadkar and also with the suit property and she was never residing in
the suit premises, but residing with her father Ramchandra Chavhan.
-- 6 of 11 --
7
11. On this point, it is argued on behalf of the plaintiff that the
plaintiff had filed S.C. Suit No.2822 of 2009 against her sister i.e.
defendant No.1 in the Bombay City Civil Court as the defendant No.1
illegally and highhandedly attempted to disturb her possession in the
suit premises. The Hon’ble Court was pleased to decree the said suit in
favour of the plaintiff restraining the defendant by a permanent
injunction from dispossessing the plaintiff from the suit premises
without following due process of law. The defendant No.1 had accepted
the said Judgment and decree and did not prefer appeal challenging the
said Judgment and Decree, which has attained finality and is therefore
binding on defendant No.1. In the said suit the Hon’ble Court has
framed Issue No.2 as “Does defendant prove that she is the only
daughter of Ramchandra A. Chavan ?” The Hon’ble Court has answered
the said Issue in the negative and held that the, the defendant’s case
that the plaintiff is the daughter of Mr. Ramchandra Chavan and her
mother Uma is not at all established by any substantial evidence and it
was held that the plaintiff is daughter of Raman Rajwadkar and not
daughter of Ramchandra Chavhan as alleged by the defendant No.1. It
is further argued that since the Order and Judgment in Suit
No.2822/2009 has attained finality, now, defendant No.1 cannot
agitate the said issue again. Thus, it is crystal clear that the plaintiff is
the daughter of Raman Rajwadkar who is the owner of the suit
premises. The plaintiff has produced on record copy of Judgment in
Suit No.2822 of 2009 which fortifies the contention of the plaintiff.
12. It is argued on behalf of defendant No.1 that the plaintiff
was residing with her mother at Malwan and she was never residing at
the suit property. No document is produced to show that she is in
-- 7 of 11 --
8
possession of the suit premises. If the plaintiff is in use, occupation and
possession of the suit premises, the society would have entered into an
Agreement with the plaintiff. The defendant No.1 is in exclusive use,
occupation and in possession of the suit premises and hence share
certificate is issued by the Society in her name and all the maintenance
bills and other charges in respect of the suit premises paid by her to the
society. The defendant No.1 has produced on record copy of Share
Certificate which is issued by the Society in the name of Raman
Rajwadkar and Form of nomination submitted by Raman Rajwadkar
thereby appointing defendant No.1 as his nominee. She has also
produced on record copy of Aadhar Card showing the address of the
suit property and rent receipts and copy of Electricity bill showing her
possession over the suit property. Whereas, according to the plaintiff,
she paid the maintenance bills of the suit premises. However,
defendant No.1 in order to create record is now paying maintenance
charges. Thus, the plaintiff and defendant No.1 both are claiming to be
in exclusive use, occupation and in possession of the suit premises.
13. Now, the plaintiff is claiming that she is entitled to
permanent alternate accommodation in lieu of the suit premises and
has prayed to pass mandatory order of injunction directing directing the
defendant Nos.2 and 4 to enter and execute the Agreement for
Permanent Alternate Accommodation with the plaintiff and for
restraining them from entering and executing any Agreement for
Permanent Alternate Accommodation with the defendant No.1 in lieu of
the suit premises. It is argued on behalf of defendant No.1 that prayer
in Notice of Motion and Suit are the same. How they can be granted
without leading evidence as it would amount to decide the suit.
-- 8 of 11 --
9
14. I find substance in the arguments advanced on behalf of
defendant No.1. On perusal of plaint and Notice of Motion, it can be
gathered that the prayers in the suit and the Notice of Motion are
almost same. The advocate for the plaintiff has relied upon the
following authorities;
1. Dorab Cawasji Warden V/s. Coomi Sorab Warden and
others reported in AIR 1990 S.C. 867,
2. Indian Cable Company Limited V/s. Smt. Sumitra
Chakraborty reported in AIR 1985 Calcutta 248,
(3) Mrs. Vijay Srivastava V/s. M/s. Mirahul Enterprises
and others reported in AIR 1988 Delhi 140,
(4) Smt. Indrawati Devi V/s. Nulu Ghosh and others
reported in AIR 1990 Patna High Court and
(5) Geetanjali Nursingh Home (P) Ltd. V/s. Dr. Dileep
Makhija and others reported in AIR 2004 Delhi 53.
wherein it has been held by the Hon’ble High Courts that, A mandatory
injunction on interlocutory application can be granted even if it result in
granting relief claimed in suit. However, it is further held that further
relief can be granted only in appropriate and fit case and the such relief
can be granted only in exceptional cases.
15. Thus, from the observations made in the above authorities,
it is crystal clear that the mandatory injunction can be granted at
interim stage in appropriate and fit cases. So far as the facts of the
present case are concerned, since both the plaintiff and defendant No.1
are claiming to be in exclusive, use, occupation and in possession of the
suit premises and both are claiming to be entitlement to permanent
alternate accommodation, it will require to lead evidence to decide the
-- 9 of 11 --
10
said issue. The relief claimed by the plaintiff cannot be granted at this
stage without leading evidence. Therefore, I hold that this is not a fit
case for grant of mandatory injunction on interlocutory application.
16. Hence, I hold that the plaintiff is not entitled to claim relief
as prayed in Notice of Motion. Plaintiff has failed to make out
prima-
facie case for grant of prayer clauses in the Notice of Motion as prayed.
The balance of convenience also does not lie in favour of the plaintiff. In
such circumstances, no irreparable loss would be caused to the plaintiff,
if Notice of Motion is not granted. Hence, I answer point Nos.1 to 3 in
the negative.
AS TO POINT NO.4:
17. In view of findings to Point Nos.1 to 3, I hold that the
present Notice of Motion is devoid of merits and is liable to be rejected.
In the result, I proceed to pass the following order:-
ORDER
Notice of Motion No.2844 of 2019 stands dismissed
with costs and disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 23.11.2023 Gr. Bombay.
Dictated on : 23.11.2023
Transcribed on : 24.11.2023
Signed on : 28.11.2023
-- 10 of 11 --
11
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
28/11/2023 At 4.00 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
23.11.2023
Judgment/Order signed by P.O. on 28.11.2023
Judgment/Order uploaded on 28.11.2023
-- 11 of 11 --