Final Order 1

Order Details: Notice of Motion
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MHCC010089112019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3275 OF 2019
IN
SUIT NO. 3015 OF 2019
Smt. Venubai Bhiku Kadlak ]..Applicant.
In the matter of :
Smt. Venubai Bhiku Kadlak ]..Plaintiff
V/s.
1. M/s. Jainam Construction ]
and others ]..Defendants
Advocate Ms. Arati Sonawane for the plaintiff.
Advocate Mr. Ashwin Sawlani i/b Advocate Mr. Hassan Khan for
defendant No.1.
Advocate Ms. Akshata Kale h/f Advocate Mr. Diwan for defendant
No.2/MHADA.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 18TH SEPTEMBER 2023
ORAL ORDER
The plaintiff has taken out present Notice of Motion
seeking reliefs of mandatory injunction directing the defendant No.1 to
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allot a flat of an area not less than 225 sq. feet to the plaintiff in the
newly constructed building in accordance with the Agreement and for
temporary injunction restraining defendant No.1 from in any manner
dealing with or creating third party rights in respect of the allotted flat
and for appointing Court Receiver, Hon’ble High Court, Bombay.
2 It is contention of the plaintiff that originally, her brother-
in-law, one Moreshwar Genu Kadlak was the tenant of Room No.38
situated on the first floor of Haji Kasam Chawl No.21(B), Balwant
Dhodi Marg, Mazgaon, Mumbai-400 010 (Hereinafter referred to as the
said room). The said Moreshwar Genu Kadlak left the said Room
sometime in 1980, whereafter her mother-in-law, Mrs. Saibai Genu
Kadlak, her husband, Bhiku Genu Kadlak, her children and she herself
were the only occupants of the said room.
3. It is further contended that on 19.07.1990, the plaintiff’s
mother-in-law received a letter bearing No.E-1/1702 of 1990 from the
Executive Engineer of the defendant No.2 for vacating the said room. In
compliance with the said letter, they vacated the said room and shifted
to Chawl No.18, Room No.134, Transit Camp, Opp. Laksh Baug,
Ghatkopar (East), Mumbai – 400075 being the temporary alternate
accommodation provided by the defendant No.2. Pursuant thereto, the
defendant No.1 agreed to redevelop the said Haji Kasam Chawl and
provide the occupiers of the said Chawl a permanent accommodation
free of costs in the new building to be constructed by it. The said chawl
was thereafter demolished by the defendant No.1.
4. It is further contended that the plaintiff’s mother-in-law
expired sometime in 1990 and her husband expired on 17.12.1992.
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Pursuant to the death of her husband in 1992, she continued to pay the
rent for the said room. Defendant No.1 entered into an agreement
dated 13.06.1998 for permanent accommodation with the plaintiff in
her capacity as the lawful occupant of the said room and the defendant
No.1 agreed to provide the plaintiff with a permanent alternate
accommodation of an area admeasuring 225 sq. feet free of costs. The
plaintiff had also given his irrevocable consent on 18.07.1999 to the
defendant No.2 for redevelopment of the said Chawl by defendant No.1.
5. It is further contention of the plaintiff that as per the terms
of the agreement, the defendant No.2 was required to complete the
construction of the proposed new building within a period of 3 years
from the date of receipt of the Commencement Certificate and hand
over the possession of the permanent accommodation in newly
constructed building. Since the year 1990, the plaintiff has been
residing in the temporary alternate accommodation provided by the
defendants. In the year 2006, one Tukaram Moru Kadlak filed a suit
being Suit No.3241 of 2006 in Bombay City Civil Court at Bombay
claiming rights in the said room and also sought an injunction against
the defendants from allotting a permanent accommodation to any
person except him. The said suit was heard and finally dismissed by an
Order dated 26.02.2009. By the said Order, the Hon’ble Court held that
the plaintiff was the occupant of the room and also held that
Shri Tukaram Moru Kadlak was not entitled to the allotment of the
newly constructed premises since he was not an occupant of the said
room.
6. It is further contended that thereafter, the said Tukaram
Moru Kadlak filed the first appeal being First Appeal No.451 of 2009 in
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the Hon’ble Bombay High Court. However, by an Order dated
30.01.2017, the first appeal was dismissed for non-prosecution. Being
aggrieved by the aforesaid order, the said Tukaram Moru Kadlak filed a
Civil Application being Civil Application (L) No.8516 of 2019, in the
aforesaid first appeal for setting aside/recalling the order dated
30.01.2017 and for restoring the first appeal. The said civil application
is currently pending adjudication before the Hon’ble Bombay High
Court. As on date, there is no appeal pending against the order dated
26.02.2009.
7. It is further contention of the plaintiff that the
tenants/occupants of Haji Kasam Chawl, including the plaintiff have
formed a society known as “Nagsen Co-op. Housing Society” of which
the plaintiff a member. The said society has, by its letter dated
03.10.2007, confirmed that the plaintiff was in exclusive use,
occupation, enjoyment and possession of the said room prior to its
demolition. Further, the plaintiff’s eligibility to receive permanent
accommodation has been confirmed by the defendant No.2 and Nagsen
Co-op. Housing Society. Sometime, in the year 2007, the plaintiff had
learnt that the construction of new building has been completed. She
also learnt that the defendant No.1 had allotted permanent
accommodation to the other tenant/occupants of Haji Kasam Chawl.
Some of the tenants/occupants have already started residing in the
newly constructed building. Accordingly, the plaintiff, on several
occasions and from time to time, approached the defendant No.1 and
asked to hand over the possession of the permanent accommodation to
the plaintiff. However, the defendant No.1 refused to do so. The
plaintiff has been residing in the temporary alternate accommodation
for more than 15 years now. She is entitled to permanent alternate
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accommodation, but defendant No.1 refused to provide her with
permanent accommodation in the newly constructed building. Hence,
the plaintiff prayed for allowing Notice of Motion.
8. Defendant No.1 has filed its written statement in the suit
and prayed for treating it as reply to the Notice of Motion. The
defendant No.1 has denied the contents of the plaint and Notice of
Motion. It is submitted that the plaint does not disclose any valid and
proper cause of action against the defendants. Therefore, the plaintiff is
not entitled to any equitable relief from this Court. The plaintiff has not
approached this Court with clean hands and has suppressed true and
material facts and has as such misguided this Hon’ble Court. The reliefs
claimed by the plaintiff cannot be granted as granting the same would
prima-facie decree the suit without going for the trial. The present suit
ought to be dismissed for non-joinder of necessary and proper party,
Mr. Tukaram Moru Kadlak as any order passed in the above suit will
prejudice the rights of Tukaram Moru Kadlak and further lead to
multiplicity of proceedings.
9. It is further submitted that Moreshwar Genu Kadlak was
the tenant of Room No.35, Haji Kasam Chawl, Mazgaon. Defendant
No.1, being developer of the said premises, has not demolished the said
premises as the developer had purchased the said premises in an public
auction after the part premises were demolished by MHADA due to the
dilapidated condition of the said Haji Kasam Chawl. Moreshwar Genu
Kadlak was tenant of suit premises. The plaintiff has not annexed any
document substantiating its alleged claim that she was the only
occupant of the suit premises. The letter dated 19.07.1990 was
addressed to Moru Genu Kadlak and Saibai Genu Kadlka and therefore,
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the Legal Heirs of Moru Genu Kadlak are also entitled to benefits of the
said room and entitled to the permanent alternate accommodation in
lieu of the original tenanted premises subject to getting their rights
adjudicated from the learned Small Causes Court.
10. It is further submitted that defendant entered into the
agreement and consent with the plaintiff as this defendant was made to
understand by the plaintiff that she alone excluding everyone was
entitled to the said room. The plaintiff is in breach of terms and
conditions of the agreement and as such not liable to any reliefs on the
basis of the said agreement. It is further submitted that legal heir Mr.
Tukaram Moru Kadlak of original tenant Moru Genu Kadlak had filed
the suit in Bombay City Civil Court at Bombay bearing Suit No.3241 of
2006 against the plaintiff as the plaintiff alone was claiming the rights
over the suit room. Hence, the said suit was dismissed by this Court.
Thereafter, Civil Application taken out by Tukaram Kadlak for
restoration of the appeal is pending.
11. It is further submitted that the plaintiff has filed present
suit without joining Mr. Tukaram Moru Kadlak as defendant in the
present suit. Unless the eligibility of plaintiff and Tukaram Kadlak is
decided finally by the Court, the plaintiff is not entitled to the allotment
of permanent alternate accommodation or any other relief as prayed.
Hence, it is prayed that Notice of Motion be rejected.
12. Perused Notice of Motion and Affidavit in support of Notice
of Motion. Also perused written statement of defendant No.1 which is
treated as reply to the Notice of Motion. Heard both the sides at length.
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13. From the rival pleadings, it appears that the plaintiff’s
brother-in-law, Moreshwar Geny Kadlak was the tenant of the suit
room. According to the plaintiff, the said Moreshwar Genu Kadlak left
the said Room sometime in 1980. Thereafter, the plaintiff alongwith her
mother-in-law, her husband and her children were residing in the said
room. On 19.07.1990, defendant No.2 issued letter for vacating the said
room to mother-in-law and accordingly, they vacated the said room and
shifted to Chawl No.18, Room No.134, Transit Camp, Opp. Laksh Baug,
Ghatkopar (East), Mumbai–400075. Defendant No.1 agreed to
redevelop the said Haji Kasam Chawl. It is submitted on behalf of
plaintiff that after death of plaintiff’s mother-in-law and her husband,
the plaintiff continued to pay rent and residing in the said room.
Pursuant thereto, defendant No.1 entered into an agreement dated
13.06.1998 for permanent accommodation with the plaintiff in her
capacity as the lawful occupant of the said room. Therefore, the
defendant No.1 is bound to provide permanent alternate
accommodation to the plaintiff. The defendant No.1 has constructed
the new building and has allotted permanent accommodation to the
other tenant of Haji Kasam Chawl, but he illegally refused to allot the
permanent accommodation to the plaintiff.
14. As against the defendants, it is argued on behalf of
defendant No.1 that the plaintiff is not sole occupier of the said room
and agreement was made by defendant No.1, as the defendant No.1
was made to understand by the plaintiff that she alone, excluding
everyone was entitled to the said room. Thus, the plaintiff has
suppressed the material facts from the defendant and made him to
enter into agreement. Further, during the course of arguments, it is
submitted that Tukaram Kadlak, the son of original tenant is also
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claiming rights in the suit room and his Civil Application is pending
before the Hon’ble Bombay High Court. Unless the rights of Tukaram
Kadlak and the plaintiff are finally decided by the Court, the defendant
No.1 is not bound to provide permanent accommodation to the plaintiff.
The advocate for defendant No.1 has also submitted that the defendant
has reserved one flat for plaintiff, but the same can be allotted only
after eligibility of the plaintiff and Tukaram Kadlak, is finally decided.
15. The learned advocate for the plaintiff on the other hand,
submitted that Tukaram Kadlak had filed suit in this Court which was
dismissed by the Court and it was held by the Court that the plaintiff is
eligible for the room. Thereafter, Appeal filed by Tukaram Kadlak in the
Hon’ble Bombay High Court also came to be dismissed for want of
prosecution. Thus, rights of the plaintiff has been crystallized and
defendant No.1 cannot avoid to allot the permanent accommodation to
the plaintiff.
16. Now admittedly, the plaintiff was residing in the suit room
and as per the letter received from the Executive Engineer of defendant
No.2, she vacated the said room and shifted to Chawl No.18, Room
No.134, Transit Camp, Opp. Laksh Baug, Ghatkopar (East), Mumbai–
400075 being the temporary alternate accommodation. Admittedly, the
defendant No.1 entered into an agreement dated 13.06.1998 for
permanent accommodation with the plaintiff in her capacity of tenant
of the said room. Therefore, defendant No.1 has to follow his obligation
as per the agreement entered into with the plaintiff. He cannot avoid
execution of the agreement.
17. So far as the contention of defendant No.1 that Civil
Application filed by Tukaram Kadlak is pending before the Hon’ble
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Bombay High Court is concerned, the defendant No.1 cannot avoid his
obligation under agreement on the ground of pendency of Civil
Application in the Hon’ble Bombay High Court. As submitted on behalf
of the plaintiff that as on today, the Civil Suit filed by Tukaram Kadlak
as well as Appeal filed by him are dismissed and rights of the plaintiff
are crystallized. Therefore, the plaintiff is entitled to permanent
alternate accommodation as per the agreement entered into between
the plaintiff and defendant No.1 which shall be subject to order of the
Hon’ble High Court that may be passed in future. Furthermore, during
the course of arguments, it was submitted on behalf of defendant No.1
that they are not going to deal with creating any third party rights in
respect of the flat and he has no objection to allow of Notice of Motion.
18. Considering all above aspects, I hold that the plaintiff is
entitled to the reliefs in terms of prayer clauses-(a) and (b) of Notice of
Motion No.3275 of 2019. In the result, I proceed to pass the following
order:-
ORDER
1. Notice of Motion No. 3275 of 2019 is made
absolute in terms of prayer clauses-(a) and (b).
2. Notice of Motion No. 3275 of 2019 stands disposed
off accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 18/09/2023 Gr. Bombay.
Dictated on : 18/09/2023
Transcribed on : 18/09/2023
Signed on : 18/09/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/09/2023 At 04.00 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
18/09/2023
Judgment/Order signed by P.O. on 18/09/2023
Judgment/Order uploaded on 18/09/2023
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