Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3993/2019 in SU 881/2018
MHCC010110352019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.3993 OF 2019
IN
SUIT NO.881 OF 2018
Shri Ashok Dhondu Gharat ...Plaintiff.
Vs.
1. Smt. Sangita Sahadev Ramane and Ors. ...Defendants
Advocate Mr. Sudarshan P. Gamre for the plaintiff.
Advocate Mr. S. J. Shelke for defendant no.1.
Advocate Mr. Trivedi for defendant no.2/SRA.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE :18th DECEMBER 2023
ORAL ORDER
1. Plaintiff has taken out the present Notice of Motion praying
for reliefs in terms of prayer clause (a) to (c) of Notice of Motion.
2. It is contention of the plaintiff that he is the owner of Room No.
167 i.e. Room No. TG- 16- 5/6, Siddharth Nagar, Near Adarsh Tarun
Mitra Mandal, Opp. to Pornima Building., S. N. Road, Mulund (W),
Mumbai (hereinafter referred to as Suit Property) and the defendant
was plaintiff’s licensee. The plaintiff got ownership rights of the said
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premises from Sonu Zoru Shigvan on 21.01.1996. The plaintiff has
agreement paper executed between him and former owner Sonu Zoru
Shigvan dated 16.01.1996. The slum identity survey Receipt of the year
2000 issued by BMC dated 18.07.2000 stands in the plaintiff's name.
Electricity Meter of the suit premises was standing in the name of
former (first owner) Kisan Laxman Sapte.
3. On 01.06.1999 plaintiff had given suit premises on Leave and
License basis to the deceased husband of the defendant No. 1, Sahadev
Ramane and to this defendant No.1 for 11 Months period. Plaintiff
continued the Licensee period every year after the expiry of previous
period till the year 2002. On 21.07.2002 defendant No.1 and her
husband Sahadev Ramane approached to plaintiff and requested him to
transfer the ownership of the suit premises in his name. The plaintiff
became ready to transfer the ownership of the suit premises in the name
of the defendant subject to payment of Rs.1,02,500/-(Rs. One Lakh and
two Thousand and Fie Hundred Only) on or before January, 2003. The
terms and conditions between the plaintiff and the defendant were
reduced in writing and were executed between plaintiff and defendant.
However, defendant only paid amount of Rs.25,000/- on 21.07.2002
but failed to pay the balance consideration amount mutually agreed
between them in the prescribed time period and till today. Thus,
defendants failed to pay the agreement amount to the plaintiff.
Therefore, the agreement dated 21.07.2002 stood cancelled and it
became null and void due to non payment of balance consideration.
After the expiry of the period of agreement plaintiff asked defendant
No.1 and her husband either to make the payment or to leave the suit
premises but defendant No.1 and her husband refused to handover
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possession and threatened the plaintiff not to visit the suit premises,
other wise they would lodge false case against the plaintiff. Because of
this fear and threatening of defendant No.1 and her husband, the
plaintiff did not visit and meet the defendant No.1 at the suit premises.
Thereafter, plaintiff came to know that defendant No.1, behind his back,
fraudulently got transferred Electricity Meter of the suit premises from
the name of former owner Shri. Kisan Laxman Sapte to her name and
obtained new ration card of the suit premises, in the name of husband
of defendant No.1. Plaintiff made complaints regarding the same and
thereafter, Electricity Meter was transferred in the plaintiffs name and
ration card of defendant was also cancelled .
4. On 16.02.2008 plaintiff issued notice to defendant No.1 and her
husband through advocate to vacate and handover peaceful possession
of the suit premises to the plaintiff. Defendants sent false reply to the
notice and refused to vacate the suit premises. Hence, plaintiff had also
filed Criminal Case against the defendant No.1 and her husband in the
Hon'ble Metropolitan Magistrate 27th Court, Mulund, Mumbai, U/s.
406,417,420,426,465,467,468,500,504,506 r/w 34 of the IPC, which
came to be dismissed, by stating reasons as civil nature.
5. Now the redevelopment of the plot of the suit premises is going
on through SRA i.e. by the defendant No.2. The defendant No.3 is the
developer of the SRA projects of the plot of the suit premises. Defendant
No.1 has produced fraud and forged papers to defendant No.3 for the
redevelopment of SRA proposal for getting the rent and permanent
alternate accommodation facility through SRA proposal in lieu of the
suit premises. Defendant No.1 has got no any legal rights, share and
title and interest over and above the suit premises and only plaintiff is
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entitled to the rent and permanent alternate accommodation in lieu of
the suit premises. The plaintiff has written several letters to the
defendant No.3 and 4 not to transfer, assign any right, title and interest
of the suit premises to defendant no. 1 but they asked plaintiff to
approach this court. Hence, plaintiff has constrained to file the present
suit and present Notice of Motion, thereby seeking relief to restrain the
defendant no.1 from transferring or selling the suit premises and
restraining the defendant No.3 from issuing rent and also from issuing
transit camp to defendant no.1 in lieu of the suit premises and to
restrain defendant Nos. 2 and 3 from issuing permanent alternate
accommodation room to defendant No. 1 in lieu of suit premises.
6. Defendant No.1 filed her reply to notice of motion and strongly
apposed the same. It is submitted that defendant no. 1 and her let
husband Sahadev Ramani was in use, possession and occupation of the
suit premises, since year 1991 and defendant No.1 has purchased said
room from the plaintiff in the year 2002, and has been staying in the
suit premises along with her family members. Her husband expired on
30.12.2011 due to heart attack. Her husband had paid balance amount
of the transaction to the plaintiff in the year 2010-2011 prior to his
death but even after paying the whole amount the plaintiff was
demanding more amount. It is submitted that after handing over the
possession of the suit premises to the defendant, the plaintiff shifted to
his native place and from that year onward the plaintiff is the
permanent resident of his native place. Further, the reliefs claimed in
notice of motion are not maintainable as suit property is a slum
declared property and for any cause of action, the reliefs are to be
claimed as per the provisions of Mahashtra Slum Area (Improvement
Clearances and Redevelopment) act, 1971 and this Court has no
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jurisdiction to try the present suit. Hence, present notice of motion is
liable to be rejected. Further, it is admitted position that the plaintiff
was not in possession of the suit premises prior to 2000 census record.
The said structure is protected structure and declared 'slum' under the
SRA schemes. Further defendant No.1's family members are residing in
the suit premises from last more than 20 to 25 years and they are
protected occupiers as per the provision of Law of Land. It is further
contended that plaintiff tried to extort more money from the defendant
No.1's husband. The plaintiff also filed false Criminal complaint against
the defendant, in the Metropolitan Magistrate Court, 27th Court
Mulund, Mumbai, which came to be dismissed. Defendant No.1 has
filed application before Deputy collector Mumbai, for cancelling the
name of plaintiff from the list of Annexure-II, which was inserted by
Deputy Collector wrongly without application of mind. The said
application is still pending. The plaintiffs, on one hand, states that
defendant no.1 is occupying the room on tenancy basis and on the other
side states that it is an SRA room. Hence, plaintiff himself is not clear in
his suit. Therefore, this court has no jurisdiction to entertain the said
suit. Hence, defendant prayed for dismissing the notice of motion with
costs.
7. Perused notice of motion, affidavit in support of notice of motion
and also reply filed by defendant No. 1 to the notice of motion.
Defendant no. 2 and 3 failed to file reply to notice of motion. Heard, Ld.
Advocate for the both the sides.
8. The following points arise for my determination and I have
recorded my findings to each of them for the reasons stated there under
:-
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Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case in his favour?
In the
Negative
2. Whether the balance of
convenience lies in favour of the
plaintiff ?
In the
Negative
3. Whether irreparable loss would be
caused to the plaintiff, if the Notice
of Motion is not allowed.?
In the
Negative
4. What order? As per the final
order
R E A S O N S
AS TO POINT NOS.1 TO 3 :
9. From the rival pleadings it appears that plaintiff claims to
be owner of suit premises and he had given the suit premises on leave
and license basis to the deceased husband of defendant No.1 for 11
months period on 01.06.1999 and said license period was continued
every year till the year 2002. According to plaintiff from 01.06.1999 till
20.07.2002 the defendant was residing in the suit premises in the
capacity of licensee. Further, in 2002 defendant No.1 and her husband
purchased said room from plaintiff, for consideration of Rs.1,02,500/- .
According to plaintiff, defendant no.1 only paid amount of Rs.25,000/-
and failed to pay balance amount consideration and hence, the
agreement dated 21.07.2002 stood cancelled and became null and void
due to non payment of balance consideration. Defendant No.1 and her
husband refused either to pay the balance consideration or to vacate the
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suit premises and thus they are trespassers in the suit premises.
Whereas according to defendant No.1 they have paid the entire
consideration but plaintiff was demanding more amount. Defendant
No.1 has not produced on record documentary evidence, regarding
payment of balance consideration amount.
10. However, it is contention of the defendant that they have
been residing in the suit premises since 1991 and they are in use
occupation and possession of the suit premises, which is also admitted
by plaintiff. The suit premises is a slum declared area. As per the
provisions of the slum Act, 1971, the SRA authority is controlling and
governing authority to decide the eligibility of Slum Dwellers and the
suit premises is a slum property and defendants are protected occupiers,
being occupiers prior to years 2000. However, in Annexure-II prepared
by the concerned authority, both names of plaintiff and defendant No.1
are recorded. The defendant No.1 has made correspondence, for
cancelling the name of plaintiff which was wrongly recorded. Further it
is argued on behalf of defendant that since, plaintiff is claiming the
relationship of the licensor and licensee between plaintiff and
defendant, this Court has no jurisdiction and only Small Causes Court
has jurisdiction to try the suit. Furthermore, since suit property is slum
property, in view of Section 42 of Slum Act, this Court has no
jurisdiction to try and entertain the suit and therefore, no reliefs as
claimed in notice of motion can be granted to the plaintiff.
11. Now admittedly suit premises has gone for redevelopment
under SRA Act, therefore, it is clear that suit property is a slum property.
Admittedly Annexure-II has been prepared wherein names of both
plaintiff and defendant No.1 have been reflected. Defendant no.1 has
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filed application before Deputy Collector, Mulund for cancelling the
name of plaintiff from the list of Annexure-II which is pending.
According to defendant No.1 as per Circulars issued by SRA, in the year
1991 and 2000 and as per D.C 33 Rule (10) the occupiers prior to
01.01.2000 are protected and are eligible for permanent alternate
accommodation.
12. I find substance in the contentions of the defendant No.1.
As stated above the suit property is a slum property and SRA authority
is controlling and governing authority to decide the eligibility of slum
dwellers. Annexeure-II has been prepared by the concerned authority,
wherein both plaintiff and defendant No.1 are held eligible. Defendant
No.1 has filed application before Deputy Collector, Mulund for canceling
the name of plaintiff from the list of Annexeure-II. However, plaintiff
has not approached appropriate authority challenging the eligibility of
defendant No.1. By this notice of motion plaintiff has claimed reliefs
against the defendant No.1 as well as defendant No.2 SRA and
defendant No.3 developer. However, as per the scheme of SRA occupiers
prior to 2000 are protected. Admittedly, the defendant No.1 is
occupying the premises prior to year 2000. Plaintiff aught to have
approached the appropriate authority under the Slum Act, to which he
failed. Considering all the above facts, I hold that plaintiff is not entitled
to the reliefs as claimed in notice of motion. Plaintiff has failed to make
out prima-facie case in his favour. Balance of convenience also does not
lie in favour of plaintiff. In such circumstances no irreparable loss will
be caused to the plaintiff, if prayers in notice of motion are not
allowed. Hence answer point No.1 to 3 in the negative.
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AS TO POINT No.4.:-
13. In view of findings to point No. 1 to 3, I hold that notice of
motion is devoid of merits and is liable to be dismissed with costs. In
the result following order is passed.
ORDER
1. Notice of Motion No. 3993 of 2019 stands dismissed with costs.
Date : 18/12/2023 (VAIBHAV V. PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Dictated on : 18.12.2023
Transcribed on : 19.12.2023
Signed on : 21.12.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21/12/2023 At 4.00 p.m. MR. MAHESH S LUGADE
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
18.12.2023
Judgment/Order signed by P.O. on 21.12.2023
Judgment/Order uploaded on 21.12.2023
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