Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM 3596-19 in SU-1384-19
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.3596 OF 2019
(CNR No.MHCC01-009794-2019)
IN
SUIT NO.1384 OF 2019.
(CNR No.MHCC01-004684-2019)
Anil Kantilal Dalal }...PLAINTIFF.
Versus
Bharat Hasmukhlal Thakker }...DEFENDANT.
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Shri.Mayur, learned advocate for the plaintiff.
Shri.Puranik, learned advocate for the defendant.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 31/01/2022)
1. By filing this Notice of Motion, plaintiff has claimed reliefs
as under;
a. That pending hearing and final disposal of the suit, this
Hon’ble Court be pleased to temporarily restrain the defendant,his
agents and/or any person acting on his behalf from not allowing the
plaintiff to use the lift of the building namely Ramnivas Matubai Bhavan
situated at Gazdar Street, Chira Bazar, Mumbai-400 002 which is
installed on medical ground for senior citizens of the building.
b. That pending hearing and final disposal of the suit, this
Hon’ble Court be pleased to temporarily restrain the defendant and/or
his agents from entering the said room of the plaintiff at any time for
whatsoever reason;
c. That pending hearing and final disposal of the suit, this
Hon’ble Court may please to temporarily restrain the defendant, his
agents and/or any person acting on his behalf from threatening and/or
harassing the plaintiff in any manner or in whatsoever nature;
2. Read the affidavits filed by both the parties in support of
their respective contentions. Heard learned Shri.Mayur advocate for the
plaintiff and learned Shri.Puranik advocate for the defendant. Perused
the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
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POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiff? ...No.
ii) Whether balance of convenience lies in his
favour? ...No.
iii)Whether irreparable loss will cause to the
plaintiff if temporary injunctions as claimed are
not granted? ...No.
iv) What order? ...As per final order.
R E A S O N S
AS POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that plaintiff is residing in the suit
building since long, defendant is claiming to be the co-owner of the suit
building, there are ongoing disputes between defendant and one Bakul
Kapadia in respect of ownership of the building and when defendant
learnt that plaintiff is supporting Bakul Kapadia, defendant has started
harassing plaintiff by raising quarrels. He argued that plaintiff had
brought labours for carrying out internal repairs in his room in suit
building on 20/04/2018 but defendant had not allowed those labours
to do the repairing work and threatened them and the plaintiff in
respect of which, plaintiff has filed report but police has registered NC
complaint. He argued that defendant is not allowing the plaintiff to use
the lift which is installed in the suit building for senior citizens on
medical grounds in respect of which, plaintiff has filed complaint with
BMC. He argued that plaintiff is senior citizen having various serious
ailments, health of the plaintiff is getting worse day by day on account
of the quarrels being raised with the plaintiff by the defendant and on
account of the obstruction created by the defendant for use of lift by the
plaintiff due to which, plaintiff is entitled for the reliefs of temporary
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injunctions as prayed hence, Notice of Motion shall be allowed.
5. As against this, learned advocate for the defendant argued
that suit is filed for injunction simplicitor which is not maintainable as
per provisions of Specific Relief Act. He argued that a meeting was held
in respect of installation of lift in the building, plaintiff was also present
in said meeting alongwith other occupants of the building and plaintiff
had expressed in the said meeting that plaintiff does not wish to use the
lift as he is residing on the first floor due to which, stoppage of the lift
on the first floor has been closed since its installation. He argued that
plaintiff has denied to contribute anything towards installation and
maintenance of the lift. He argued that plaintiff has not joined the other
co-owner of the suit building as party defendant to the suit. He argued
that plaintiff is not co-operating the structural engineer for carrying out
repairs in his room to stop the heavy leakage from the room of plaintiff.
He argued that plaintiff is not entitled to use the lift facility and plaintiff
has made false allegations against the defendant due to which, Notice
of Motion is liable to be dismissed.
6. In brief, case of the plaintiff may be stated as under;
Plaintiff and defendant are residing in the suit building.
Plaintiff is residing on the first floor in the suit building since last more
than 69 years. There is ongoing dispute in respect of ownership of the
plot and building between defendant and one Bakul Kapadia. Suits filed
by them against each other are pending. Plaintiff is aware that Bakul
Kapadia is the legal heir of original landlord Matubhai Pitambar.
Defendant is claiming to be owner of the suit building and land on the
basis of fraudulent documents. Plaintiff is supporting Bakul Kapadia
hence, defendant started harassing the plaintiff by raising quarrels on
one or the other pretext. Most of the residents in the suit building are
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senior citizens hence, lift is installed in the suit building on medical
grounds for the senior citizens in or about year 2005-06. Plaintiff and
other senior citizens were using the lift after its installations but when
defendant came to know that plaintiff and some other old residents are
supporting Bakul Kapadia, defendant has made such arrangement in the
lift that it does not stop on first and second floor and as such, defendant
is not allowing the plaintiff and some of the residents in the building to
use the lift though it is installed for senior citizens on medical grounds.
Plaintiff is senior citizen, plaintiff is not in a position to climb stairs as
plaintiff is heart patient and is suffering from Asthama, diabetes,
hypertension, knee pains etc. but despite repeated requests, defendant
is not allowing the plaintiff to use the lift.
7. Defendant is also not allowing the plaintiff to do internal
plastering work at his residence by saying that defendant is the landlord
of the building. Defendant had not allowed the labours of the plaintiff
to carry out plastering work on 20/04/2018 at the residence of the
plaintiff and defendant had given threats to the plaintiff and those
labours in respect of which, plaintiff has lodged report with police but
no action is taken. After few days of it also, defendant had not allowed
the plaintiff to carry out the necessary repairing work. Plaintiff had
addressed letter to Assistant Engineer of MCGM that defendant is not
allowing the plaintiff to use the lift, to carry out minor repair work in
the house and defendant has closed the emergency exit on the ground
floor by constructing a go-down/shop. Defendant is constantly causing
harassment of old aged plaintiff who is residing alone. Defendant had
threatened and attacked the plaintiff on 28/06/2018 in respect of
which, plaintiff had been to the police station for lodging report but
police had not accepted the report hence, plaintiff had lodged written
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complaint. Thereafter also on 12/07/2018, defendant had threatened
the plaintiff that he will forcibly enter the house of the plaintiff
alongwith 60 persons in respect of which, plaintiff has lodged written
complaint with police on 14/07/2018. Plaintiff has received a letter
dt.17/07/2018 from the police that NC is registered on the basis of
complaint dt.06/07/2018 lodged by the plaintiff and plaintiff was
requested to approach the Court. Health of the plaintiff is getting worse
day by day because of raising of quarrels by the defendant and not
allowing the plaintiff to use lift.
8. On these grounds, plaintiff has claimed relief of permanent
injunction in the suit that defendant be permanently restrained from
obstructing/not allowing the plaintiff from using the lift, to
permanently restrain the defendant from threatening and/or harassing
the plaintiff and to permanently restrain the defendant from entering
into the house of plaintiff for whatsoever reason and from obstructing
the plaintiff from carrying out permissible internal repair work in the
house of the plaintiff.
9. It does not appear to be in dispute that plaintiff is residing
in the suit building since prior to year 1976. It also does not appear to
be in dispute that lift has been installed in the suit building in or around
year 2003 & there is no agreement between the occupants & owners/
landlords in respect of use of the lift. Plaintiff has produced copies of
medical papers along with the plaint and those copies are sufficient for
accepting that plaintiff is suffering from various serious ailments.
Defendant has contended that plaintiff had expressed in the meeting
that plaintiff did not wish to use the lift facility as he is residing on the
first floor hence, stoppage of the lift on the first floor was closed since
its installation. Defendant has further contended that other occupants
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than the plaintiff have contributed for installation of the lift & plaintiff
has denied to contribute for its installation. Plaintiff has not filed
affidavit in rejoinder for denying those contentions of the defendant.
Plaintiff has also not stated anything in the plaint or in the affidavit
filed in support of the Notice of Motion that he has ever contributed for
installation and maintenance of the lift.
10. Plaintiff has placed on record copy of notice dtd.02/7/2018
addressed by him to Assistant Engineer of MCGM. Said notice shows
that plaintiff had informed the MCGM that Bharat Thakker (defendant)
is not allowing him to carry out tenantable repairs in his house. It is also
mentioned in said notice that Bharat Thakker (defendant) & Hasmukh
Thakker are not allowing the plaintiff to use the lift which is meant for
every tenant in the building for common use and which is approved on
medical grounds for the building tenants. Those statements in said
notice suggest that plaintiff is residing in the suit building as a tenant of
the premises possessed by him on first floor.
11. Plaintiff has contended in plaint that plaintiff & defendant
are residing in the suit building. Copies of documents produced with the
plaint show that plaintiff is the tenant in suit building but plaintiff has
nowhere stated in plaint that he is residing in the suit building as a
tenant. Contention of plaintiff is that there is ongoing dispute between
the defendant and one Bakul Kapadia in respect of ownership of the
plot and building. His contention is that Bakul Kapadia is the legal heir
of original landlord Matubhai Pitambar of the building however, it is
also not the contention of the plaintiff that he is tenant of said Bakul
Kapadia. On the other hand, letter dt.02/07/2018 produced by the
plaintiff himself suggests that plaintiff has mentioned therein that the
building belongs to Matubhai Pitambar Bhagwanji Trust hence, any
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individual like Bharat Thakker (defendant) and Hasmukh Thakker
cannot be the owners of the building.
12. Plaintiff has not produced any document to show that said
Trust is the owner cum landlord. On the other hand, defendant has
contended that he himself and his brother are the co-owners and he has
produced copy of mutation entry in support of his said contention.
Besides it, affidavit in reply filed by the defendant suggests that he had
filed application to the concerned Municipal Office for permission to
install lift in the suit building and in pursuance of the application,
Municipal Corporation had issued IOD in year 2003 for installation of
the lift. Defendant has produced the copy of said IOD issued in the year
2003-04 with his affidavit in reply. Said IOD is issued in the name of the
defendant from which, it
prima facie appears at this stage that
defendant has installed the lift in the suit building by obtaining
necessary permission from MCGM.
13. Plaintiff has not produced any material to show that
anybody else than the defendant and Hasmukh Thakker is the owner of
the suit building. Again, plaintiff has nowhere stated in the plaint that
the lift in the suit building is installed by Bakul Kapadia. He has simply
contended in plaint that lift is installed in the suit building on medical
grounds for senior citizens in or about year 2005-06. As mentioned
above, the copies of documents produced by the defendant are
prima
facie sufficient for accepting that lift in the building is installed by the
defendant by obtaining necessary permission from MCGM. Having
regards to those aspects, in the facts and circumstances of the case, the
material produced on record by the defendant is
prima facie sufficient
for accepting that defendant is co-owner of the building. As mentioned
above, annextures of the plaint suggest that plaintiff is claiming himself
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to be the tenant of the premises on the first floor of the building
because, plaintiff has contended in his complaints that defendant is not
allowing him to carry out tenantable repairs.
14. Again, in the copy of complaint dt.09/04/2019 lodged by
the plaintiff with the police, plaintiff has mentioned that defendant is
not allowing the plaintiff to enter into the lift by saying that defendant
is the landlord. In plaint also, plaintiff has contended that defendant is
claiming himself as landlord. As mentioned above, despite contending
that there is ongoing dispute between the defendant and Bakul Kapadia
about ownership of the building, plaintiff has not produced any
material to show that somebody else than the defendant and brother of
the defendant is the owner of the suit building and Bakul Kapadia is the
landlord. Having regards to those aspects, this Court is of the opinion
that material available on record is
prima facie sufficient at this stage
for holding that there exists relationship of tenant and landlord between
the plaintiff and defendant even though, plaintiff has not pleaded so
specifically in plaint and even though, plaintiff has contended in plaint
that he is supporting Bakul Kapadia against the defendant in the dispute
pertaining to ownership of the building.
15. As mentioned above, material on record is prima facie
sufficient to hold hat there exists landlord-tenant relationship between
defendant and plaintiff hence, Section 29 of Maharashtra Rent Control
Act would be applicable which prescribes that landlord shall not cut off
essential supply or service enjoyed by the tenant in respect of the
premises let to the tenant. The explanation given in the said Section
below sub section-6 clarifies that essential supply or service includes lift
also. Apparently, efficacious remedy is available with the plaintiff under
Section 29 of Maharashtra Rent Control Act in respect of his prayer in
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terms of prayer clause (a) of the Notice of Motion due to which, the
prayer made in that regard cannot be granted in view of Section 41(h)
of the Specific Relief Act.
16. Learned advocate for the plaintiff submitted that plaintiff
has nowhere pleaded in plaint that defendant is the landlord. He
submitted that plaintiff has disputed ownership of the defendant in
respect of the building hence, Section 29 of Maharashtra Rent Control
Act is not applicable. I could not find any force in his said argument for
the reasons mentioned here-in-above. Even assuming that said
argument is acceptable, it will have to be seen whether the material
available on record is
prima facie sufficient for accepting the prayer
made by the plaintiff in terms of prayer clause-a of Notice of Motion?
17. As mentioned above, the documents produced by plaintiff
are
prima facie sufficient for accepting that plaintiff is suffering from
various serious ailments. Plaintiff has contended that most of the
residents in the building are senior citizens hence, lift is installed on
medical grounds for senior citizens in or about year 2005-06. Plaintiff
has further contended that plaintiff and other senior citizens were using
the lift after its installations but when defendant came to know that
plaintiff and some other old residents are supporting Bakul Kapadia,
defendant has made such arrangement in the lift that it does not stop
on first and second floor and as such, defendant is not allowing the
plaintiff and some of the residents in the building to use the lift though
it is installed for senior citizens on medical grounds.
18. Plaintiff has not produced any material in support of his
contention that lift in the building is permitted to be installed only on
medical grounds and for Senior Citizens. Plaintiff has also not produced
supporting material to show that he was using the lift since after its
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installation. Furthermore, plaintiff has nowhere stated in the plaint that
he has contributed for installation of the lift and he is contributing for
its maintenance. On the other hand, defendant has contended that he
has installed the lift by obtaining necessary permission and his said
contention is supported by copy of IOD. Plaintiff has not disputed that
lift is installed by defendant. Plaintiff has not stated anywhere in the
plaint and in the complaints made by him against the defendant that he
either contributed or is ready to contribute for maintenance of the lift.
Again, plaintiff has nowhere clarified in plaint as since when, he started
supporting Bakul Kapadia in a dispute with defendant. Since it is the
specific contention of the plaintiff that defendant is not allowing him
and some of the residents in the building to use the lift after the
defendant learnt that they are supporting Bakul Kapadia, it was
essential for the plaintiff to give details in that regard. Considering
those aspects this court is of the opinion that contention of the plaintiff
is not
prima facie acceptable that he was using the lift since its
installation and defendant has unilaterally obstructed the plaintiff from
using the lift after the defendant learnt that plaintiff is supporting Bakul
Kapadia in the so called dispute about ownership between the
defendant and said Bakul Kapadia.
19. Plaintiff has contended that defendant is not allowing him
to carry out internal permissible repairing work in the premises of the
plaintiff and defendant had threatened the plaintiff and his labours by
entering into the house of the plaintiff when the plaintiff had brought
labours for internal repairing work. Plaintiff has placed on record copies
of complaints lodged by him against the defendant with police and
MCGM. Contents of those complaints
prima facie suggest that plaintiff
has alleged that defendant and Hasmukh Thakker are not allowing the
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plaintiff to carry out tenantable repairs and defendant is claiming that
he is the landlord. Apparently, plaintiff is claiming himself as tenant of
the premises possessed by him on first floor and he is aware that
defendant is claiming himself to be the landlord of the plaintiff. If that
be so then, this court is of the opinion that the dispute in that regard is
also revolving around the tenant-landlord relationship between the
plaintiff and the defendant.
20. Again, even if the argument of learned advocate for the
plaintiff is considered that plaintiff has not pleaded landlord-tenant
relationship in the plaint, it will have to be seen whether the contention
of the plaintiff is
prima facie acceptable that defendant is harassing the
plaintiff by not allowing him to carry out repairing work? Copy of letter
dtd.21/04/2018 produced by the plaintiff shows that plaintiff had
alleged that defendant and his family members are pressurizing the
plaintiff to carry out repairs in the tenement of the plaintiff though the
Architect Viren Samani has directed that there is no need to carry out
any repairs. Complaints lodged thereafter by plaintiff on 2/7/2018 and
14/07/2018 suggest that plaintiff had complained that defendant is not
allowing the plaintiff to carry out repairs in his tenement. Likewise,
notice dtd.18/02/2019 given to the defendant also suggests that
defendant has obstructed the plaintiff from carrying out repairing work
in his premises. Documents produced by plaintiff show that plaintiff has
contended in first letter that there is no need to carry out any repair
work whereas, he has contended in subsequent complaints that
defendant is not allowing him to carry out repairing work. Apparently,
plaintiff has raised self contradictory contentions in respect of the
repairs to be carried out in his premises.
21. Defendant has produced letter dtd.02/05/2017 issued by
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the Architect to the Executive Engineer of M.B.R. & R. Board and to the
plaintiff about failure of the plaintiff to render co-operation to cure the
leakage problem from the premises of the plaintiff. Defendant has also
produced copies of letters dtd.23/02/2018 and 01/03/2019 given by
Executive Engineer of M.B.R. & R. Board to the police and Deputy
Commissioner of the Police for providing police protection as plaintiff
was not allowing and co-operating the NOC holder to carry out repairs
in the room of the plaintiff. Those documents are
prima facie sufficient
for accepting that repairing work at the premises of the plaintiff was
undertaken as per the NOC issued by the M.B.R.&R. Board. Plaintiff has
not clarified in plaint as to why he was not co-operating for the repairs
as per the NOC issued by the Board. The copies of letters produced by
defendant
prima facie show that legal procedure is adopted for carrying
out repairing work in the premises of the plaintiff but the plaintiff has
not co-operated. Considering those aspects, contention of the plaintiff is
not
prima facie acceptable that defendant is not allowing the plaintiff to
carry out repairs at the premises of the plaintiff.
22. Having regards to those aspects, this court is of the opinion
that neither
prima-facie case nor balance of convenience do lie in favour
of the plaintiff. In the result, there is no question of causing any
irreparable loss to the plaintiff if temporary injunctions as claimed are
not granted in his favour. For all these reasons, by recording my findings
on point Nos.(i) to (iii) accordingly, I pass the following order.
O R D E R
Notice of Motion No.3596 of 2019 is dismissed.
Date : 31/01/2022. (P.P.RAJVAIDYA)
Dictated on : 31/01/2022. Judge, C.R.No.62,
Checked on : 01/02/2022. City Civil Court,
Signed on : 01/02/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
02.02.2022 at 1.00 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 31/01/2022
Order signed by P.O. on 01/02/2022
Order uploaded on 02/02/2022
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