Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3138 OF 2019
IN
SUIT NO. 2196 OF 2019
Mehrunnisa Mohammed Iqbal ]
Ansari. ].. Plaintiff.
V/s.
Azizur Rehman and others ]..Defendants.
Advocate Mr. Vasim Ansari for the plaintiff.
Advocate Mr. Saliyan for defendant Nos.1 and 2.
Advocate Mr.Pathak h/f Advocate Mr. Kandekar for defendant
No.4/MHADA.
Advocate Mrs. Chandramore for defendant No.5/BMC.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 5h APRIL, 2022.
ORDER
The suit is instituted for recovery of transit rent and other
reliefs. It is the case of plaintiff that her husband was tenant in respect
of Room No. 26, Ground Floor, Chunawala Cottage (Dhobi ki Chawl),
4th Sankli Street, Byculla (West), ‘E’ Ward, Mumbai-400 008 and it is
hereinafter referred as suit property for the sake of convenience.
2. It is the case of plaintiff that defendant Nos. 1 and 2 are the
builders and developers and they are developing the building in which
suit premises is situated. Defendant No. 3 is the youngest son of
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plaintiff who is acting in collusion and connivance with the defendants
Nos. 1 and 2. The suit building is a cess property.
3. It is the case of plaintiff that her husband died on
25/03/2018. Defendant Nos. 1 and 2 claim to have purchased the suit
property from the earlier landlord. They have collected the rent from
tenants including plaintiff. Defendant Nos. 1 and 2 agreed to pay the
transit rent to the tenants till the new building is constructed and
possession is handed over. The rates including specific increase are
provided in the agreement for permanent alternative accommodation.
4. It is the case of plaintiff that defendant Nos. 1 and 2 did
not pay the rent for the year 2018 – 19. Hence, plaintiff issued a legal
notice dated 18/04/2019 to defendant Nos.1 and 2 demanding the
yearly transit rent of Rs. 2,11,200/– and advance rent of Rs. 2,20,800
for the period of April 2019 to March 2020. Defendant No. 1 reply to
the said notice on 18/06/2019 and avoided making payment. Plaintiff
issued copies of the said notice to higher authorities. It is further stated
that the defendant Nos. 1 and 2 are mixing up the issues of payment of
transit rent and the complaint raised by the son of plaintiff regarding
unauthorized construction of defendant Nos.1 and 2 beyond the
sanctioned plan. Son of plaintiff had filed Civil Writ Petition No. 3111
of 2018 before the Hon’ble Bombay High Court. Defendant No. 1 has
made a statement in the said Petition that the rent is paid to the tenants
upto March 2018. However, in the sur-rejoinder defendant No.1 had
stated that he has paid the amount of Rs.70,400/– to defendant No. 3
towards the transit rent for the period of 15/06/2018 14/06/2019. The
said fact was not brought to the knowledge of the Hon’ble High Court.
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6. Plaintiff has further stated that it is mentioned in the
agreement for permanent alternative accommodation that in case of
death of tenant, the suit premises shall be handed over to the plaintiff.
The two sons of plaintiff that is Mohmmed Tarique and Zaki Ahmed
have prepared a joint notarized affidavit dated 09/05/2018 whereby
they gave no objection to defendant Nos. 1 and 2 to hand over the rent/
compensation and allotment of permanent alternative accommodation
to the plaintiff.
7. Plaintiff has further stated that though the name of plaintiff
is recorded in the agreement for permanent alternative accommodation,
defendant No. 1 is fraudulently demanding letters of administration or
probate or headship certificate which are not required in the present
matter at all. For all these reasons the plaintiff has instituted the
present suit for recovery of the transit rent for the period of
15/06/2018 to 14/06/2019 that is the amount of Rs. 2,11,200/– and
amount of Rs. 2,20,800/– towards the period between 15/06/2019 to
14/06/2020. She has further prayed for appointment of court receiver
for recovery of transit rent and pay the same to the bank if. She has
further prayed for cancellation of NOC and other permissions granted
by defendants Nos. 4 and 5.
8. Plaintiff has filed the present Notice of Motion with the
prayer that the defendant Nos. 1 and 2 may be directed not to create
any third-party interest in respect of the suit premises she has further
prayed for restraining the defendant Nos. 1 and 2 from parting with
possession of the suit premises in favour of third-party. She has further
prayed for directions to defendant Nos. 1 and 2 to pay to the plaintiff
outstanding and advance yearly transit rents totalling Rs. 4,32,000/–
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and for payment of further transit rent to plaintiff till the possession is
handed over.
9. Defendant Nos.1 and 2 have filed reply to the Notice of
Motion and have denied all the contentions of the plaintiff. It is stated
that there is no cause of action to the said motion. It is stated that
defendant Nos. 1 and 2 never denied to make payment of yearly rent to
the plaintiff. It is further stated that part payment of yearly rent is
already made to defendant No. 3 on the request made by plaintiff. They
have further stated that the plaintiff was requested to furnish the letters
of Administration or Probate or Heir-ship Certificate which is a lawful
requirement.
10. Defendant Nos.1 and 2 have further stated that they
received a letter from plaintiff after the death of her husband claiming
the entitlement to receive the amount of transit rent. As there was
dispute between plaintiff and defendant No. 3, defendant Nos. 1 and 2
called upon the plaintiff to provide letters of administration or probate
or succession certificate. It became difficult for the defendant Nos. 1
and 2 to ascertain as to who is entitled to receive the amount of transit
rent. It is further stated that the players at clause (a) and (b) are not in
consonance with the prayers in the plaint.
11. Defendant Nos.1 and 2 have stated that the Clause- 26(g)
is in respect of handing over possession of the permanent alternative
accommodation and not in respect of payment of transit rent. She is
only trustee. It is further stated that MHADA insists for letters of
administration or probate or succession certificate. Defendant Nos. 1
and 2 have denied that they received any affidavit of sons of plaintiff.
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All other contentions are denied by the defendant Nos. 1 and 2 and they
have prayed for dismissal of the Notice of Motion.
12. Defendant No.3 has filed affidavit in reply to the Notice of
Motion and has denied all the contentions in the same he has stated
that the suit is instituted with an intention to delete the name of
defendant No. 3 as a legal hair. He has further stated that his father
allow him to collect the rent during his lifetime on his behalf. He has
admitted the receipt of Rs. 70,400/– for the period from 15/06/2018 to
15/06/2019 out of the total amount of Rs. 2,11,200/–. He executed an
affidavit dated 09/05/2018 in favour of his mother out of love and
affection. His elder brother instituted a Writ Petition before the Hon’ble
High Court which came to be dismissed. Hence, he has instituted the
present suit in the name of plaintiff. For all these reasons defendant No.
3 has prayed for dismissal of the notice of motion.
13. Remaining defendants have not filed reply.
14. Considering the plaint, notice of motion, replies,
documents on record and submissions of learned advocates, following
points arise for my determination and my findings to them are as stated
below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff has proved her
prima
facie case ?
In the
Affirmative
2 Whether Plaintiff has proved that she will
suffer irreparable loss, if the Notice of
Motion is dismissed?
In the
Affirmative
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3 In whose favour does the balance of
convenience lie?
In favour of
the Plaintiff
4 What order? As per final order
R E A S O N S
AS TO POINT No.1 :
15. Before going to the merits of the matter, it is necessary to
state the admitted facts. It is admitted that Mohammed Iqbal
Mohammed Hanif Ansari was the original tenant of the suit premises. It
is admitted that the defendant Nos.1 and 2 are the Builders and they
are developing the building in which suit premises is situated. It is
admitted that Mohammed Ansari held as entitled for permanent
alternate accommodation and accordingly an Agreement of Permanent
Alternate Accommodation was executed by defendant Nos.1 and 2 and
Mohammed Ansari on 24.02.2015. It is also admitted that after
execution of the said agreement of Permanent Alternate
Accommodation, Mohammed Iqbal Mohammed Hanif Ansari died on
25.03.2018. His death Certificate is produced on record. It is admitted
that the present plaintiff is the wife of Mohammed Iqbal Ansari.
Mohammed Tarqiue Mohammed Iqbal Ansari and Zaki Ahmed
Mohammed Iqbal Ansari are the sons of Mohammed Iqbal Mohammed
Hanif Ansari. It is admitted that the defendant Nos.1 and 2 agreed to
pay the transit rent to Mohammed Iqbal Mohammed Hanif Ansari, by
the time the permanent alternate accommodation is ready for
occupation and handed over.
16. In the above circumstances, the dispute arose when
Mohammed Iqbal Mohammed Hanif Ansari died. The specific question
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was to whom amount of transit rent is to be paid. It appears that
Mohammed Tarique and defendant No.3 affirmed an affidavit before
the Notary on 09.05.2018 in which they stated that the permanent
alternate accommodation may be transferred in the name of the present
plaintiff, so also amount of rent/compensation may also be handed over
to the present plaintiff. The said affidavit can be co-related with the
agreement of permanent alternate accommodation as in paragraph
No.5 of the affidavit, there is reference of page No.12 Clause-(g) of the
Agreement for permanent alternate accommodation in which the
present plaintiff is noted as nominee of original tenant in case of his
death.
Prima-facie this document is sufficient to show that the plaintiff
was entitled to get the transit rent/compensation.
17. It is the case of the plaintiff that the said affidavit was sent
by her to defendant Nos.1 and 2 for transferring the amount of rent/
compensation in her name. Defendant Nos.1 and 2 in their reply have
denied this fact and they have stated that they did not receive any such
affidavit. The affidavit is duly notarized and keeping aside the fact
whether the defendant Nos.1 and 2 received the said affidavit or not,
the affidavit makes clear the intention of both the sons of the plaintiff
to pay the rent/compensation to her. The communication between the
plaintiff and defendant Nos.1 and 2 is produced on record, but it is of
not much use for deciding the present dispute. It is admitted position
that defendant Nos.1 and 2 paid the amount of Rs.70,400/- to
defendant No.3 without informing the other legal heirs i.e. plaintiff and
her other son i.e. Mohammed Tarique. In fact, defendant Nos.1 and 2
were having no reason to part with such payment.
18. It is the case of defendant Nos.1 and 2 that the plaintiff
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should submit some letters of administration or succession certificate to
prove her claim. However, the defendant Nos.1 and 2 paid the amount
of Rs.70,400/- towards transit rent to defendant No.3 without asking
for any such document. Therefore, it is clear that defendants have not
come with the clean hands before the Court. In paragraph No.10 of
reply of defendant No.3, he has clearly admitted that he has signed and
executed the affidavit dated 09.05.2018.
19. The learned advocate for the plaintiff has relied upon the
Judgment in the case of Mohamed Obedulla Chinoy and others and
Rasubhai Suleman Chinoy reported in Testamentary Petition No.135 of
1990. It is held that;
“Thus, Section 63 only applied to the Will of those classes
of persons mentioned in Section 57, i.e. a Hindu
Buddhist, Sikh or Jaina. It does not apply to Mahomedan.
For completeness, one must look at Section 213 of the
Indian Succession Act. This puts the matter beyond all
controversy. It tells us when a right as an Executor or
legatee is established. Sub-clause (I) says that no such
right can be established in any Court unless a Court of
competent jurisdiction has granted probate or Letters of
Administration with Will annexed. But sub-clause (ii)
then makes it abundantly clear that this is not a
requirement demanded of Wills of a Mahomedan”.
20. The learned advocate for the plaintiff has further relied
upon the Judgment in the case of Bilquis Zakiuddin Bandookwala and
others V/s. Shenaz Shabbir Bandukwala reported in 2011(1)Mh.L.J.963
in which it is held that the probate would not be required to be
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obtained in cases of Mohammedans and Section 57 of the Indian
Succession Act also excludes Mohammedans.
21. The learned advocate for defendant Nos.1 and 2 has relied
upon in the case of Zahid Ahmedali Mazgaonwalla and another V/s.
Smt. Gulshan Pyarali Magaonwalla reported in (2005(5) Mh.L.J. 522. It
is held that the party cannot be deprived of his statutory right as a joint
tenant by virtue of bequeath of tenancy by Will, Deed or Gift. In the
present matter, there is no question of depriving the legal heirs from
tenancy right. Plaintiff is just a nominee.
22. The learned advocate for defendant Nos.1 and 2 has
further relied upon the Judgment in the case of Palikandy Mammad
V/s. Chingoran Keloth Valia Appa reported in AIR 1917 Madras 79 (2).
It is held that the Court has no power to appoint Receiver or attachment
of right to future maintenance.
23. The learned advocate for defendant Nos.1 and 2 has
further relied upon the Judgment in the case of Mrs. S. Karpagan V/s.
R. Shanmugam reported in (2002)2 M.L.J. 768. It is held that in this
regard, it is useful to refer the decision (Ramaswami, J., in the case of
Krishnaswamy Thangavelu, A.I.R. 1955 Mad. 430, wherein the learned
Judge formulated five requirements in the matter of appointment of
receiver under O.40, Rule-1, C.P.C. The five requirements are as follows;
“(1) The appointment of a receiver pending a suit is a
matter resting in the discretion of the Court.
(2) The court should not appoint a receiver except upon
proof by the plaintiff that prima-facie he has a very excellent
chance of succeeding in the suit.
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(3) Not only must the plaintiff, show a case of adverse
and conflicting claims to property, but, he must show some
emergency or danger or loss demanding immediate action
and of his own right he must be reasonably clear and free
from doubt. The element of danger is an important
consideration.
(4) An order appointing a receiver will not be made
where it has the effect of depriving a defendant of a
de facto
possession since that might cause irreparable wrong. It
would be different where the property is shown to be in
medio, that is to say, in the enjoyment of no one and
(5) The court, on the application made for the
appointment of a receiver, looks to the conduct of the party
who makes the application and will usually refuse to
interfere unless his conduct has been free from blame.”
24. In the present matter, plaintiff is denying the rights of her
sons in the redeveloped premises. She is appointed as just a nominee in
case of death of original tenant. Therefore, there is no prejudice to the
rights of all the legal heirs of original tenant in the suit premises.
Hence, appointment of the Court Receiver is not necessary.
25. The learned advocate for defendant Nos.1 and 2 has
further relied upon the Judgment in the case of Bachhaj Nahar V/s.
Nilima Mandal and Another reported in (2008)17 S.C.C.491. I have
gone through the said judgment. The facts of the present matter and
the facts of before the Hon’ble Lordships are different. Therefore, with
all respects to above ratio, I state that it is not applicable to the present
matter.
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26. The learned advocate for defendant Nos.1 and 2 has
further relied upon the Judgment in the case of The Regional Transport
Officer, Kozhikode V/s. N.V. Motor Service, Kozhikode and others
reported in AIR 1973 Kerala 219. It is held that the Court before
granting an interim injunction must consider whether the plaintiff has
been honest. If he comes to Court with a very material averment which
turns out to be false. The Court should be slow in exercising its power
in favour of the plaintiff. In the present matter, it does not appear that
the plaintiff has made any
prima-facie false averment.
27. The plaintiff has claimed that the defendant Nos.1 and 2
may be directed not to create any third party interest in the suit
premises. It is clear that inspite of executing affidavit on 09.05.2018,
defendant No.3 approached to defendant Nos.1 and 2 and claimed and
received amount of Rs.70,400/- towards interim rent. Therefore, there
is every possibility that he may try to create the entries of his name
which will not only affect the other legal heirs rights, but will also
create complication in the matter. On the same line, after permanent
alternate accommodation is ready, defendant No.3 may occupy the
same. In that case again the rights of other legal heirs will be
endangered. The plaintiff has further prayed for payment of outstanding
and advance yearly transit rent to her. In view of the affidavit dated
09.05.2018, she has made out sufficient prima-facie case for this relief
also. Accordingly, I answer point No.1 in the affirmative.
AS TO POINT NOS.2 AND 3:
28. As I have earlier discussed, if defendant Nos.1 and 2
transfer the suit property in the name of defendant No.3 or put him in
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possession thereof, it will cause irreparable loss to the plaintiff. On the
other hand, the plaintiff appears to be nominee of original tenant i.e.
her husband and her nomination is well supported by the affidavit of
her two sons. Therefore, the plaintiff will suffer irreparable loss in that
circumstance. In view of the said affidavit, the plaintiff is entitled to
transit rent also. However, the amount of Rs.70,400/- is already paid
by defendant Nos.1 and 2 to defendant No.3. Therefore, that amount
needs to be excluded and entitlement of the same can be decided at the
stage of final hearing of the suit. So far as remaining amount is
concerned, the plaintiff is entitled to get the same during the pendency
of the suit or getting possession of permanent alternate accommodation
which were earlier.
29. In view of the above discussion, the balance of convenience
lies in favour of the plaintiff. Therefore, I answer point no. 2 in the
affirmative and point no. 3 in favour of plaintiff and in answer to point
no. 4 proceed to pass the following order.
O R D E R
1. Notice of Motion No. 3138 of 2019 is allowed.
2. Defendant Nos.1 and 2 are hereby temporarily restrained
from creating any third party interest in the suit premises
or putting any third person in the possession thereof till
the final disposal of this suit.
3. Defendant Nos.1 and 2 are hereby further directed to pay
balance amount of transit rent i.e. Rs.3,61,600/- for the
period of 15.06.2018 to 14.06.2020 and pay further
amount to the plaintiff as per her entitlement in the light
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of agreement of permanent alternate accommodation
dated 24.02.2015.
4. Cost of the Notice of Motion will follow in main cause.
5. Notice of Motion No. 3138 of 2019 is disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 05.04.2022 Gr.Mumbai.
Dictated on: 05.04.2022
Typed on : 07.04.2022
Signed on : 18.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19.04.2022 AT 01.00 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
No.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of ProNo.uncement of
Judgment/Order
05.04.2022
Judgment/Order signed by P.O. on 18.04.2022
Judgment/Order uploaded on 19.04.2022
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