Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.2961 of 2019
CNR:MHCC010081292019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.2961 OF 2019
IN
L.C.SUIT NO.1285 OF 2019
1 Mrs. Bhanu Vinod Sandis & Anr. .. Plaintiffs
V/s.
1. Mr. Ramjibhai Wala sandis & Ors .. Defendants
Appearance:
Adv. Jagdishkumar Gupta for plaintiffs.
Adv. Karan Kharate for defendant No. 1 to 3.
None for deft no.4.
Adv Shailesh Upaddhya for defendant No.5.
Adv Smt. Kumud Soraan for defendant no.6/MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 04.08.2022.
ORDER
1 This Notice of Motion is taken out by the plaintiffs
seeking relief of temporary injunction against the defendants
thereby restraining them from demolishing/removing the plaintiffs
from the suit premises admeasuring area about 10 x 10 = 100 sq.
ft with loft portion of area bearing Hut No.DMB/165, Mahalaxmi
Approach Road, Mumbai:400 034 during pendency of the suit
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without following due process of law.
2 Notice of Motion is replied by the defendant No.1 to 3
as well as defendant No.6.
3 In the Notice of Motion it is contended that Hut
premises bearing No. DMB/165, Mahalaxmi approach road,
Tardeo, Mumbai:400 034 admeasuring area about 8 x 10=80 sq.
ft. with loft portion of 10 x 12= 120 sq. ft i.e. suit premises is the
subject matter of the suit. Plaintiffs are residing in the suit
premise alongwith defendant No.1. Defendant No.1 Ramjibhai
wala Sandis is the father of the plaintiff No.2 whereas the
defendant No.2 is Mahesh Ramji Sandis is younger brother of
plaintiff No.2 and defendant No.3 Manubhai Amra sandis is the
son of uncle of plaintiff No.2. Plaintiff No.1 got married to the
plaintiff No.2 on dt.30/03/2000 and since from that time, they are
residing in the suit premises. Defendant No.1 asked them to stay
with him jointly in the suit premises and since then, they all are
jointly residing there. Defendant No.1 compelled the plaintiffs to
sale their original hut premises and due to his compulsion, old hut
premises was sold to third party for total consideration of Rs.2
lakhs which has been kept with defendant No.1 to 3. Defendant
No.1 to 3 had given the suit premises to them for residence for
monthly rent of Rs.1500/ from 30/5/2007 and gradually
increased the rent. They had kept the plaintiffs mentally and
physically harassed for not having kid. Various police complaints
were made with regard to said torture.
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4 Meanwhile, defendant No.1 to 3 in the month of March
2019 tried to dispose them forcefully from the suit premises and
caused unbearable harassment to them. In said circumstances, it
became very difficult for them to live in the said premises
peacefully. Therefore, they issued notice to the defendants through
their advocate for stopping the harassment. However, it was of no
use. Meantime, the defendants are trying to dispose them from
the suit premises without following due process of law. Hence,
due to said urgency, the plaintiffs have taken out this Notice of
Motion for the temporary relief restraining the defendants from
dispossessing them from the suit premises till final adjudication of
this matter.
5 Defendant No.1 to 3 have filed reply and made
submission that defendant No.1 had purchased the room bearing
No.DMB/116, Approach Road, Tulsiwadi, Tardeo, Mumbai:400
034 in the name of the plaintiff No.2. Plaintiff No.1 and 2 got
married and thereafter they started abusing and behaving violently
with them disturbing peace and harmony of their family. Plaintiff
No.2 without informing the defendant No.1 sold said room and
meantime, they left the suit premises. However, in the year 2007,
plaintiff No.1 begged for forgiveness and considering his apology,
defendant No.1 allowed them to stay in the suit premises on rental
basis on the upper floor. They got arrangement entered into
writing to that effect on dt.30/05/2007. The defendants also
spoke about alleged harassment caused by the plaintiffs. Above all,
it is said that defendant No.1 is the lawful occupier of the suit
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premises and he never tired to dispossess the plaintiffs from the
suit premises. Per contra, it is said that the plaintiffs do not have
any legal right to reside in the suit premises which is acquired by
him as lawful owner and it is well within his rights to ask the
plaintiffs to vacate the suit property. Hence, plaintiffs do not have
any right or title in respect of suit premises. No prima facie case
exists in their favour. Hence, Notice of Motion may be dismissed.
6 Defendant No.6 replied the Notice of Motion and
specifically made contention that as per record of Annexure II of
MCGM, record of the year 1997 and as per Development Control
Rules, Clause 33(9), redevelopment of slum dwellers 1995 policy
and as per MCGM Resolution No.382 dt.5/10/1998, the record of
the defendant No.6 shows that defendant No.1 is entitled for
alternate accommodation admeasuring 225 sq. ft. as per Slum
Rehabilitation Authority Circular No.27 of 19992000 and the
defendant No.1 is shown in the list of records of defendant No.6 as
person entitled for alternate accommodation in the redevelopment
of slum dwellers. Moreover, as per Circular No.382 dt.5/10/1998
on page No.18, Sr.No.12, family dispute for claim of alternate
accommodation should be decided by the developer of the
premises who is defendant No.4 M/s.Tulsiwadi Navnirman CHSL.
Plaintiffs have submitted that these defendants should follow due
process of law and defendant No.6 submits that said due process
of law is to be followed by defendant No.4 and 5. Land belongs to
defendant No.6 and the plaintiff No.2 has to amicably settle it with
other defendants. Hence, Notice of Motion is misconceived,
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untenable and unsustainable in law. Therefore, it is liable to be
dismissed.
7 From the facts and circumstances of the case, and
material placed on record, following points arose for my
determination and I have given my findings thereon with reasons
as below.
Sr.
No.
POINTS FINDINGS.
1 Whether prima facie case lies in
favour of plaintiff ? No.
2
Whether balance of convenience
lies in favour of plaintiff ? No.
3
Whether plaintiff will suffer
irreparable loss, if Notice of
Motion is not allowed ?
No.
4 What Order ? Notice of Motion
stands dismissed.
REASONS
AS TO POINT NOS.1 TO 3.
8 All these points are interlinked with each other, hence,
for the sake of convenience and to avoid repetition of certain
points, all are discussed simultaneously.
9 Here, it is pertinent to note that on perusal of contents
of Notice of Motion, it reveals that the plaintiffs sought the relief of
protection against unlawful dispossession from the suit premises
and said protection is sought against all defendants. However,
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reason so mentioned in the Notice of Motion regarding
apprehension of dispossession appears to be family stress between
the plaintiffs and defendant No.1 to 3. Plaintiffs as well as
defendant No.1 to 3 have placed various documents on record
including complaints moved by the respective parties to police
station and other authorities for redressal of family dispute.
Defendant No.1 to 3 also make it clear that there is family dispute
amongst them. However, neither the plaintiffs nor defendant No.1
to 3 has produced it on record that suit premises has been gone
into rehabilitation and the defendant No.1 is shown entitled for
alternate accommodation as per Slum Rehabilitation Authority
Circular. It is only reply by defendant No.6 which makes it clear
that as per MCGM Resolution No.382 dt.5/10/1998, defendant
No.1 is shown as person entitled for alternate accommodation of
the premises admeasuring 225 sq. ft. as per Slum Rehabilitation
Authority Circular No.27 of 19992000. It means that issue
involved in this matter is the dispossession on the basis of
redevelopment scheme and rehabilitation of slum dwellers to some
alternate accommodation. Here, as per the pleadings of both the
parties, it transpires that whatever may be the nature of title and
occupation of plaintiffs, they are presently residing in the suit
premises. Defendant No.1 to 3 are not staying their. Question of
family dispute cannot be the subject matter before this Court and
the plaintiff miserably failed to show that except family dispute,
there is other apprehension in their mind regarding their
dispossession at the hands of defendant No.1 to 3.
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10 Secondly, it transpires that though plaintiffs have given
colour of family dispute showing apprehension of dispossession,
but it is not the case of dispossession due to personal grievances in
between the parties. The issue involved is acquiring of suit
premises and other area by the MCGM for development and
allotment of alternate accommodation to the slum dwellers at
different places. In said process, if the dispossession takes place,
same cannot be considered as dispossession without following due
process of law. The plaintiff has not produced any document on
record to show that defendant No.4 to 6 are trying to dispossess
them from the suit premises without following due process of law.
11 Firstly he must prima facie satisfy lawfulness in the
residence in the suit premises and unless current lawful title over
the suit premises is established, the plaintiffs cannot seek relief
against dispossession. Here, it transpires that the process of
redevelopment is going on and under the police of redevelopment
of slum dwellers of the year 1995, defendant No.1 is shown
entitled for alternate accommodation. Defendant No.6 has
produced said resolution No.382 dt.5/10/1998 on record
alongwith list of persons entitled for alternate accommodation
from the slum area of Megh Nagar, DBM. Same shows name of
defendant No.1. Above all, clause at Sr.No.12 of said resolution is
very specific that family dispute for claim of alternate
accommodation should go before developer i.e. defendant No.4
M/s.Tulsiwadi Navnirman CHSL for amicable settlement. Here,
the plaintiffs miserably failed to show that they put forth their
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grievances or claim for alternate accommodation before defendant
No.4 or defendant No.4 has refused to entertain their claim. In
said circumstances, I hold that the plaintiffs miserably failed to
make out prima facie case before the Court requiring indulgence of
this Court against alleged apprehension of dispossession.
12 Three essential ingredients required for grant of
temporary injunction are not satisfied by the plaintiffs by any
substantial material. Hence, I have answered point No.1 to 3 in
the negative as 'No'.
AS TO POINT NO.4.
13 In view of negative findings as to point Nos.1 to 3, I
hold that Notice of Motion is liable to dismissed. Hence, following
order is passed.
ORDER
1 Notice of Motion No.2961 of 2019 is dismissed.
2 Notice of Motion is disposed off.
Date:04/08/2022.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :04/08/2022.
Typed on :05/08/2022.
Signed on :05/08/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
06/08/2022 5.50 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
04/08/2022.
JUDGMENT/ORDER signed by
P.O.on
05/08/2022.
JUDGMENT/ORDER uploaded on 06/08/2022.
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