Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM NO.48372019 IN SU 21792012
MHCC010032502012
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4837 OF 2019
IN
SUIT NO. 2179 OF 2012
Shridhar Atmaram Malgaonkar ] ...Plaintiff
Versus
Pooja Hemant Malgaonkar & 4
Ors. ]…Defendants.
Appearance:
Ld Advocate Mr. Redekar for the plaintiff.
Ld Advocate Mr. Ashwin Sawlani for defendant No.4.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 17/09/2022
ORAL ORDER
1. Plaintiff has taken out present Notice of Motion for grant
of interim relief of temporary injunction restraining defendant no.4
from alloting permanent alternate accommodation i.e. Room
No.704, 17th Floor, in building No.D, Kalyandaswadi, Dr. B.A.
Road, Chinchpokali, Mumbai12 (hereinafter above referred
permanent alternate accommodation is referred as “Suit Premises”)
to the defendant no.1 in lieu of old premises as per agreement
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dated 20.03.2018, for restraining defendant no.4 from giving
amount of compensation/transit rent to the defendant no.1
exclusively as per agreement of Permanent alternate
accommodation dated 20.03.2018, for further directing defendant
no.4, to deposit transit rent/compensation in the court and for
directing defendant no.1 to deposit ¼ amount of plaintiff share in
this court out of amount of compensation/transit rent which is
received by her from defendant no.4.
2) Perused the notice of motion, affidavit in support of
notice of motion, plaint and documents on record. The defendants in
spite of opportunity failed to file reply and therefore present Notice of
Motion was proceeded without reply of all defendants. Heard
arguments advanced by Ld. Advocate for plaintiff and Ld. Advocate for
defendant no.4. As the defendant no.1 and other defendants were
absent they could not be heard.
3) Ld. Advocate for plaintiff argued that his father Atmaram
Malgaonkar was the tenant of the suit premises, and he expired in
1964. Plaintiff and defendant nos.1 to 3 are heirs of the of deceased
Atmaram Malgaonkar. Plaintiff and defendants were occupying the
suit premises during the life time of deceased Atmaram Malgaonkar.
After the demise of plaintiffs father Atmaram Malgaonkar plaintiff and
defendant no.1 to 3 are having equal and joint right in suit premises.
Moreover, the husband of defendant no.1. and Defendant nos.2 and 3
and plaintiff had executed family arrangement, whereby it was agreed
that they shall have equal right and interest in permanent alternative
accommodation which will be allotted in the lieu of suit premises.
Moreover, husband of the defendant no.1 had executed affidavit and
thereby declared that he along with plaintiff and defendant nos.2 and
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3 has equal right in the suit premises, and therefore they are jointly
entitled for benefits of redevelopment. However, after death of
husband of defendant no.1, denied the right of plaintiff and defendant
no.2 and 3 in the suit premises. Defendant no.4 is the landlord of
building and developer of the suit building wherein suit premises was
situated. Suit building is being redevelopment under 33(7) of D.C.R.
Plaintiff and defendant no.1to 3 are entitled for equal rights and
jointly entitled for permanent alternate accommodation in lieu of suit
premises. However, defendant no.4 disobeyed the order dated
19.10.2013 in N.M. No.2629 of 2012 and entered into agreement of
providing permanent alternate accommodation in lieu of suit premises
in favour of defendant no.1, and also paid amount of Rs.4,32,000/ to
the defendant no.1 only. Plaintiff and defendant no.1 to 3 having
equal share in transit rent amount and the permanent alternate
accommodation. Therefore, Ld. Advocate for the plaintiff prayed that
notice of motion be made absolute.
4) On the other hand, Ld. advocate for Defendant No.4
argued that as the name of defendant no.1 was reflected in the
certified list of tenants prepared by Defendant no.5, defendant no.4
executed agreement for permanent alternate accommodation in favour
of the defendant no.1. Plaintiffs name is not reflected in the certified
list of tenants/occupants. Defendant no.4 has paid amount as per
agreement of permanent alternate accommodation to the defendant
no.1. Plaintiff is not entitled for benefits of redevelopment. Therefore,
Notice of Motion be dismissed.
5) From the Written Statement of the defendant no.1, it
appears that it is the defence of the defendant no.1 that Atamaram
Malgaonkar was original tenant of the suit premises, and he expired in
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the year 1964. It is the defence of the defendant no.1 that at the time
of death of Atmaram Malgaonkar original tenant and thereafter her
fatherinlaw Sahdev Malgaonkar was residing in the suit premises
along with his family, and he was regularly paying rent of the suit
premises since 1964. Plaintiff never resided in the suit premises and
never paid rent of the suit premises after death of his father.
Thereafter, husband of defendant no.1 Pooja Hemant Malgaonkar was
residing in the suit premises along with his family and he was paying
rent of the suit premises. After death of her husband defendant no.1
resided and paid rent of the suit premises. Plaintiff and defendant
nos.2 and 3 were not residing in the suit premises at the time of death
of Atmaram Malgaonkar and therefore plaintiff and defendant nos.2
and 3 are not having any tenancy rights or interest in the suit
premises. Defendant no.1 is residing in the suit premises along with
her family since last 16 years and paying rent of the suit premises.
Being occupant of suit she alone is entitled for the benefits of
redevelopment. This court has no jurisdiction deciding the tenancy
rights. Plaintiff never paid rent of family arrangement and affidavit
alleged is forged. After death of her husband as suit premises has
gone under redevelopment, plaintiff filed the false suit to grab the
benefits of the redevelopment.
6. Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under:
Sr. No. Points Decision
(i) Whether plaintiff proved that primafacie case
lies in his favour?
No.
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(ii) Whether it proves that balance of convenience
lies in his favour?
No.
(iii) Whether repairable loss will be caused to
plaintiff is reliefs as prayed are not granted?
No.
(iii) What Order? As per final
order.
REASONS
As to Point No.1 to 3:
7. As all these points are interconnected with each other
they are decided simultaneously in order to avoid repetition of facts.
8. From the pleading of the plaintiff it appears that plaintiff
has filed present suit for declaration that plaintiff and defendant no.1
to 3 are occupants, in respect of suit premises and they are having
equal rights in the permanent alternate accommodation in lieu of the
suit premise, and for directing defendant no.4 to execute the
agreement of permanent alternate accommodation in lieu of suit
premises in favour of defendant no.1 to 3 jointly and for permanent
injunction.
9. In the present matter admittedly father of plaintiff i.e.
Atamaram Malgaonkar was tenant and occupant of the suit premises.
The relationship between plaintiff and defendants is not disputed. It is
admitted fact that the suit premises is already demolished. Though
the plaintiff has come with case that plaintiff and defendant no.1 to 3
were residing and occupying the suit premises and plaintiff was
having possession of the suit premises, from the title cause of plaint
and exhibit J and K to the plaint, it appears that defendant no.1 along
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with her family only was occupying the suit premises. The address of
the plaintiff and defendant no.2 and 3 is not of the suit premises.
Therefore primafacie it appears that plaintiff and defendant nos.2 and
3 were not occupying/residing in suit premises. Primafacie it appears
that defendant no.1 along with her family was occupant of the suit
premise and defendant no.1 delivered possession of suit premises.
From the record it appears that in the certified list of
tenants/occupants prepared by defendant no.5 MHADA, name of the
defendant no.1 only is mentioned as the occupant of the suit premises.
Name of the plaintiff and defendant no.2 and 3 is not reflected
therein. Though question of tenancy right of suit premises is kept in
abeyance from certified list of tenants/occupants, primafacie it
appears that defendant no.1 was the only occupant of the suit
premises. As such from the matter on the record primafacie the
defendant no.1 appears to be occupant of the suit premises. Prima
facie there is no substance in the contention of plaintiff, that he was
and is having possession/occupation of the suit premises and he was
occupant of the suit premises.
10. As per the Maharashtra Government notification dated
16.08.2010 persons having objection to certified list of
tenants/occupants are having remedy of preferring First appeal to the
Vice Chairman /Chief General officer MHADA and to prefer second
appeal to the Government and order /Judgment of Government
thereon is final. Therefore, separate mechanism is provided for
challenging certified list of tenants/occupants i.e. annexure 2 prepared
by MHADA for deciding eligibility of tenants/occupants for benefit of
redevelopment. As such plaintiff is having separate remedy for
deciding his eligibility for the benefits of redevelopment. Therefore,
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from the matter on record primafacie it appears that jurisdiction for
determination of eligibility of plaintiff for the benefit of redevelopment
is vested with Authority and not with the Court.
11. Considering the matter on record primafacie plaintiff
does not appear to have any legal right or interest in the suit premises.
At this stage it cannot be presumed that plaintiff is entitled benefit of
redevelopment, and plaintiff is having equal right/share in the suit
premises and he is entitled for ¼ share in the amount paid by the
defendant no.4 to the defendant no.1. Moreover, plaintiff would be
entitled for benefit of redevelopment, if he is held entitled for benefits
of redevelopment in respect of suit premises by Authority. Therefore,
primafacie no irreparable loss is likely to be caused to the plaintiff is
defendant no.4 is not restrained from allotting permanent alternate
accommodation in lieu of suit premises in favour of defendant no.1
and from paying amount transit rent/compensation to the defendant
no.1 exclusively as per agreement dated 20.03.2018. Moreover,
considering the fact that name of the defendant no.1 is reflected in the
certified list of occupants and as already defendant no.4 executed
agreement of providing permanent alternate accommodation dated
20.03.2018 in favour of defendant no.1, and paid the transit amount
to the defendant no.1 much more comparative hardship is likely to be
caused to the defendant no.1 than the plaintiff. Moreover, equally
efficient remedy is available to the plaintiff.
12. Considering the matter on record and above discussion
court find that primafacie case is balance of convenience does not lie
in favour of plaintiff no irreparable loss will be caused to plaintiff if
N.M. is not made absolute. Therefore, point no.1 to 3 are answered in
negative.
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13. In view of negative decision as to point Nos.1 to 3 and
considering the matter on record present Notice of Motion is liable to
be dismissed. Hence, court proceeds to pass the following order:
ORDER
1. Notice of motion No.4837 of 2019 is hereby dismissed.
2. Notice of Motion No.4837 of 2019 is disposed off accordingly.
Date : 17/09/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on : 17/09/2022
Typed on : 19/09/2022
Checked on : 20/09/2022
Signed on : 21/09/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/09/2022 at 04.08 p.m. Mr. Ashok S. Patil
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
17/09/2022
JUDGMENT/ORDER signed by P.O.
on
21/09/2022
JUDGMENT/ORDER uploaded on 21/09/2022
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