Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft Notice of Motion
in Suit No.2817/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
DRAFT NOTICE OF MOTION
In
SUIT No. 2817 OF 2019
Rizwana Banu Akhtar Qureshi
Through C.A. of Tukaram Ramji ....Plaintiff
V/s.
1) Mumbai Building Repair & Reconstruction Board
2) Executive Engineers ....Defendants
Appearance:
Mr. S.S. Kudalkar, Advocate for the plaintiff.
Mr. K.N. Kandekar, Advocate for the defendants.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 23 rd November, 2019.
ORDER
1. By this draft Notice of Motion the plaintiff/ C.A of Tukaram
Ramji has prayed to direct the defendants, their agents, servants and
employees to allot temporary or permanent alternate accommodation in
the nearby vicinity of Mazgaon or South Mumbai in lieu of old suit
premise Room No.4, Building No.26, Kamathipura, 8th Lane, Mumbai
and restraining defendants, their agents, employees, servants from
removing plaintiff and her family members from the suit premises i.e.
-- 1 of 9 --
2 Draft Notice of Motion
in Suit No.2817/2019
Transit camp Room No.61, Chawl No.9, Antop Hill, Wadala Transit
Camp, Mumbai 400 037 and newly alloted transit Room No.259, Chawl
No.34, Wadala Transit Camp, Mumbai.
2. In support of notice of motion plaintiff has filed affidavit and
relied upon the averments made in the plaint. It is averred that if
interim relief is not granted, serious and irreparable harm and injury
would be caused to plaintiff for which monetary compensation can not
be an adequate relief and no prejudice will be caused to defendants if
relief is granted.
3. In affidavit in reply it is averred by defendants that suit is
not maintainable and same is filed without cause of action. According to
defendants from the documents relied upon by the plaintiff, it appears
that Bai Roshanbibi Widhava Dadumia Shaikh the landlord, has issued
rent receipt in favour of Tukaram Ramji. It is admitted that the
defendants have acquired Building No.26, Kamathipura and had issued
certificate under sub section (3) (a) of section 88 of MHADA Act, 1976.
It is also admitted that the suit premises were in dilapidated and
dangerous condition and therefore defendants issued notice dated
23.06.1982 under section 77(b) of the MHADA Act to vacate the
premises within seven days from the date of receipt of notice. It is also
admitted that on 28.05.1985, defendants issued allotment letter and
alloted transit room to the original tenants in Building No.118, Gala
No.3437, Transit Camp, Vikhroli, Mumbai in lieu of Room No.4, Building
No.26, at Kamathipura, 8th Lane, Mumbai400 008. It is also not
disputed that original tenant was asked to shift from Vikhroli to Wadala
in Gala No.9/61. According to defendants the documents relied upon by
the plaintiff is matter of record.
-- 2 of 9 --
3 Draft Notice of Motion
in Suit No.2817/2019
4. It is averred that the consent of landlord is mandatory while
assigning the tenancy right in favour of plaintiff by Tukaram Ramji. On
07.07.2017, original tenant i.e Tukarak Ramji executed General Power
of Attorney and Indemnity Bond for transferring and assigning tenancy
right, title and interest in respect of old tenanted premises in favour of
plaintiff. Thereafter, the letter dated 08.01.2018 issued by Tukaram
Ramji, original allottee mentioning that he is residing at the address
mentioned in his letter is contrary statement to get the relief prayed in
the notice of motion. Further, defendants have denied that there is a
policy of transit camp for the tenants who occupy the tenancy premises
in South Mumbai would allot the transit rooms or permanent alternate
accommodation in the vicinity of South Mumbai. The letter dated
11.03.2019 calling upon plaintiff to vacate the old transit
accommodation is admitted by defendants. However, according to
defendants, plaintiff failed to comply the conditions mentioned in the
said addressed letter dated 18.04.2019 to the defendants thereby
refusing the offer given in the letter dated 11.03.2019. Thus, it is prayed
that notice of motion may be dismissed.
5. Heard learned Advocate for plaintiff and defendant Nos.1
and 2 at length.
6. Following points arise for determination. Findings against
each of them alongwith reasons are stated as below.
SR. NOS. POINTS FINDINGS
1. Whether the plaintiff has
established prima facie case ?
No
-- 3 of 9 --
4 Draft Notice of Motion
in Suit No.2817/2019
2. Whether balance of convenience
tilt in favour of plaintiff ?
No
3. Who would suffer irreparable loss
if relief of injunction is granted ?
The defendants
4. What Order ? As per final order
As to point No.1
7. According to plaintiff, original tenant Tukaram Ramaji had
executed P.O.A. and Indemnity Bond in her favour instead old Room
No.4, Building No.26, Kamathipura, 8th Lane, Mumbai. The recitals of
the said P.O.A. further reflects that in lieu of the said premises,
defendant No.1 has allotted transit accommodation bearing Room
No.61, Chawl No.9, Antop Hill, Wadala Transit Camp, Mumbai 400 037.
Further due to personal difficulties and unavoidable circumstances
original tenant Tukaram Ramji could not stay any more in transit
accommodation No.9/61. In this respect on perusal of the date of the
P.O.A. it reflects that it is executed on 07.07.2017, whereas the
subsequent letters addressed to the concerned offices of defendants were
issued in the name of Tukaram Ramji wherein he has stated that he is
residing in the transit accommodation as the subsequent transit
accommodation alloted at Gorai is inconvenient for him. It is pertinent
to note that in spite of execution of P.O.A., plaintiff has not made
subsequent correspondence to the concerned offices of the defendants. It
is averred by the plaintiff that application dated 08.01.2018 was filed for
allotment of the transit accommodation in the vicinity of Dadar and
Seewri by the original tenant on behalf of plaintiff. However, on
perusal of the said letter dated 08.01.2018, it is no where mentioned that
the said correspondence is made on behalf of the plaintiff.
-- 4 of 9 --
5 Draft Notice of Motion
in Suit No.2817/2019
8. According to plaintiff in the month of December2017
defendants and their officers visited vacant Room No.9/61, with request
to vacate the premises immediately. They suddenly started work of
demolition of Room No.9/61 without following due process of law and
forcefully shifted all belonging of plaintiff in Room No.259, Chawl No.34,
Wadala, Transit Camp, Mumbai without giving allotment letter. In spite
of request made by plaintiff, no allotment letter was issued by the
defendants in respect of Room No.259. In this context, on perusal of
letter dated 11.03.2019, it reflects that the original tenant Tukaram
Ramji was issued vacation notice of Room No. 9/61 and was alloted to
Gala No.311 in building No. 9/C at Gorai.
9. As per the pleading, the plaintiff has came up with the case
that on the basis of P.O.A. he obtained the possession of transit
tenement. The notice dated 23.06.1982, was issued to Tukaram Ramji
the original tenant. Thus, no other document filed on record by plaintiff
to substantiate his contention that she is in possession of transit quarter
9/61 or Room No.259. Though, P.O.A. was executed on 07.07.2017 in
favour of plaintiff, she has not given any explanation as to why
subsequent correspondence to defendants was made by the original
tenant when there is specific clause (3) in P.O.A. empowering the
plaintiff to sign, make and present any application, petition or otherwise
on behalf of original tenant in respect of old room premises/vacation
notice/transit accommodation.
10. There are no documents filed on record on behalf of plaintiff
to show that she is occupying Room No.259 in Chawl No.34. Further
more, plaintiff has sought the relief of allotment of permanent
-- 5 of 9 --
6 Draft Notice of Motion
in Suit No.2817/2019
accommodation which can not be considered at this stage. Plaintiff has
further sought the relief of temporary injunction in respect of Room
No.9/61 and also in respect of newly alloted Room No.259. It is already
observed that there is no allotment letter issued in the name of
plaintiff/original tenant in respect of allotment of Room No.259.
Therefore, the relief as sought can not be granted in favour of plaintiff.
Plaintiff has claimed the relief in respect of Room No.9/61. However,
the recitals of notice dated 11.03.2019, reflects that the said premises are
required for redevelopment purpose. By the said notice of motion,
plaintiff has been allotted Gala No.311 in building No. 9/C at Gorai
Road in lieu of original suit premises. Thus, the plaintiff has not made
out any prima facie case for the grant of interim relief in his favour.
Hence, point No.1 is answered in negative.
As to point No.2 and 3.
11. So far as balance of convenience is considered, it tilt in
favour of defendants as Room No. 9/61 is required for redevelopment
purpose. Therefore, no irreparable loss will cause to plaintiff if relief of
injunction is refused. In such case if injunction as prayed is granted,
irreparable loss will be caused to defendants who is Competent Authority
providing transit accommodation to needy persons whose old premises
are vacated on account of dilapidated condition. Therefore point No.2
and 3 are answered accordingly.
As to point No.4
12. In view of forgoing discussion, plaintiff has not made out
any prima facie case therefore he is not entitled for the relief of
-- 6 of 9 --
7 Draft Notice of Motion
in Suit No.2817/2019
injunction as sought. Hence for the answer of point No.4, I pass
following order.
ORDER
1) Draft Notice of Motion in Suit No.2817/2019 is dismissed.
2) Draft Notice of Motion stands disposed off accordingly.
3) Draft Notice of Motion be registered for statistical purpose.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 23/11/2019
Dictated on : 23.11.2019
Transcribed on : 25.11.2019
Signed on : 27.11.2019
-- 7 of 9 --
8 Draft Notice of Motion
in Suit No.2817/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
28.11.2019 05.30 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 23.11.2019
Order signed by P.O. on 27.11.2019
Order uploaded on 28.11.2019
-- 8 of 9 --
9 Draft Notice of Motion
in Suit No.2817/2019
-- 9 of 9 --