Interim Order 2

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT – 14
IN
R.A.E. & R. SUIT NO. 413 of 2023
(CNR No. :- MHSCA3-000877-2023)
Mr. Sandeep Dalchand Jain ... Plaintiff
Versus
Mr. Babubhai Narayan Mistry ... Defendant
M/s. G M Legal, Ld. Advocate for the Plaintiff.
Mr. P. B. Thakar, Ld. Advocate for the Defendant.
Coram :- P. K. Kharate, Judge
C. R. No. 36 [B.B.]
Date :- 08/04/2024
ORDER :
The plaintiff has filed application stating that, he has
filed the above suit for recovery of possession of the suit premises.
The defendant is the tenant of the plaintiff in respect of Chawl No.
1 admeasuring 100 sq.ft. area in C.T.S. No. 3/1 to 3/23.
2. The plaintiff further averred that there are 24 tenants in
the residential unit and 13 tenants in the chawl while 18 are having
commercial units and two are having cabin holders. Hence, there
are near about 57 tenants in the entire suit premises. The
Municipal Corporation has classified the premises as C-1 category
due to dangerous and dilapidated condition of the building. The
MCGM has also issued notice to pull down the building. All the
tenants have formed Pannalal Nagar Tenants Welfare Association
along-with the defendant. The defendant has also expressed his
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ready and willingness to redevelop the said property through his
letter dated 02/04/2021. The MCGM has also issued notice to the
defendant under Section 351 on 12/08/2021. The Hon’ble High
Court has also vacated injunction by its order dated 19/05/2021
and directed the MCGM to demolish the said building. But, in the
meantime the plaintiff has obtained IOD on 31/12/2021 and also
obtained the commencement certificate on 03/08/2023.
3. The plaintiff further averred that he has tried to obtain
the consent of the defendant for redevelopment of the said plot by
issuing letter dated 23/07/2021. The plaintiff is also ready for
agreement for permanent alternate accommodation in the new
constructed building. The plaintiff is ready to allot the residential
flat admeasuring 210 sq.ft. in new proposed building to be
constructed on the said land along-with other 13 tenants. But, out
of 57 tenants, 52 tenants have consented for redevelopment. The
predecessor of plaintiff has permitted the defendant to use 100
sq.ft. in the suit premises. But, due to non cooperation of the
defendant, plaintiff has to file present interim mandatory
application for directing the defendant to vacate the suit premises.
4. The defendant has filed reply vide Exh. 17 stating that that
defendant has occupied 12 x 16 sq.ft. area as per 7/12 extract and
the letter dated 24/09/1972. The defendant has also received
notice from BMC for demolition of the extra construction on
19/06/1969. Moreover, the defendant has filed separate writ
petition in the Hon’ble High Court i.e. Writ Petition No. 8051 of
2022 and the Hon’ble High Court has restored the electricity and
water connection of the defendant. Hence, the defendant is
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protected as per the order of the Hon’ble High Court. Moreover,
other chawls are also standing in the said premises and they are
not given permission for redevelopment which are adjoining to the
building. The defendant has filed the application for appointment
of Court commissioner to inspect the site and report actual
position of the suit premises. Moreover, the notice of the BMC
under Section 354 of the BMC Act is not applicable to the
defendant. Moreover, the IOD and CC of the plaintiff shows that
plaintiff does not want the structure of the defendant. The
defendant is in possession of the 175.45 sq.ft. area. Hence, prayed
to reject the application.
5. Heard both sides at length.
6. From the contention of application and reply filed by the
defendant following points arises for my determination and I have
recorded my findings thereon for the reasons stated as under:
POINTS FINDINGS
1) Whether the plaintiff has made out
prima - facie case in his favour?
: In the affirmative.
2) Is the balance of convenience lies in
favour of the plaintiff?
: In the affirmative.
3) Whether the plaintiff will suffer
irreparable loss if injunction as
prayed not granted?
: In the affirmative.
4) What order ? : As per final order
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REASONS
As to Point No. 1 to 4:-
7. All these points are interlinked and inter connected with
each other, therefore, taken for consideration at once their
convenient discussion and to avoid repetition.
8. In the present case, I perused the documents of the
plaintiff . The plaintiff has specifically mentioned in the plaint that
defendant is the tenant of the plaintiff. On perusal of para no. 2 of
written statement it appears that defendant has admitted the
tenancy of plaintiff on the basis of the letter issued by the
grandfather of the plaintiff.
9. In the present case, the plaintiff has obtained the IOD
from MCGM and plaintiff has also started construction adjacent to
the suit premises. The MCGM has granted the IOD on 31/12/2021
and also granted permission later on, on 03/08/2023 for
construction upto sixteenth floors. On perusal of photographs, it
appears that the construction has completed upto near about third
floor of the new constructed building adjacent to the suit premises.
Moreover, the pillars have constructed very adjacent to the suit
premises. On perusal of photographs, it appears that it may be
dangerous to the defendant’s suit premises due to the depth of the
nearby construction. Moreover, it is also dangerous to the life of
the defendant if the suit premises is fallen down due to the work
nearby to the premises.
10. On perusal of the entire application and say, it appears
that there is dispute in respect of only about area in possession of
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the defendant. It is no doubt that defendant is claiming 175.45
sq.ft. area in his possession while the plaintiff is claiming that
defendant is in possession of only 100 sq.ft. area. It is also no
doubt that there is one document issued by the MCGM which
clarifies the area of the suit premises. It is one of the fact that
plaintiff is ready to give the flat to the defendant in the new
constructed building. The advocate for the defendant argued that
defendant is ready to vacate the possession or give consent to the
redevelopment subject to file of the agreement with another chawl
holder. Today the plaintiff has submitted the agreement of
Aatmaram Sharma who is also residing in the same area.
11. In the present case, the defendant has only one grudge
about the are in his possession. The defendant has also filed the
application to appoint the Court commissioner to measure the
premises as per Exh. 19. At this juncture it is no doubt that if
interim mandatory injunction is not granted then it will be
dangerous to the life of defendant and also dangerous to the suit
premises. It may collapse without any efforts at any time. Hence,
present case is the perfect case to grant mandatory injunction. But,
on the other side the right of the defendant is also necessary to be
protected by appointing Court commissioner for measuring the
area in possession of the defendant. It is no doubt that it is matter
of evidence that how much area is in possession of the defendant.
But, the defendant will not get the chance to measure his premises
if the possession is handed over to the plaintiff and suit premises is
demolished by the order of the Court. Hence, at this juncture the
interest of the defendant is also necessary to be protected. The
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most important thing is that more than 54 tenants have granted
permission for redevelopment. It is not proper that due to three to
four tenants the redevelopment process should be stopped.
Moreover, in such type of redevelopment not only the plaintiff but
the Bank, tenants and their families are also suffered if the
redevelopment could not be completed within time. It is also one
of the economical loss of the nation and it is not good for the
developing country like India.
12. Considering above discussion, the prima facie case is in
favour of the plaintiff and the balance of convenience is also lies in
favour of plaintiff. Irreparable loss may cause to the plaintiff if
interim mandatory injunction is not granted. Hence, I answer
points Nos. 1 to 3 in the affirmative, and in answer to point no. 4 I
pass the following order:
: ORDER :
1. The application vide Exh. 14 is allowed.
2. The defendant, his heirs, nominee, successor or
persons claiming through or under them, jointly
and/or severally are hereby directed to handover
the vacant possession of the premises i.e. Chawl No.
1 admeasuring 100 sq.ft. standing on the land
bearing C.T.S. No. 3/1 to 3/23 of Village Kanheri,
Taluka Borivali and bearing final Plot No. 1 of TPS
II of Borivali to the plaintiff within one month from
today for the purpose of demolition to redevelop the
said plot.
3. The plaintiff is directed to comply the conditions
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with the defendant as per the agreement like with
Atmaram Sharma in respect of monthly rent and
other brokerage and transport charges within 15
days from today.
4. The plaintiff is directed to pay the 12 months rent in
advance to the defendant within 15 days for his
alternate accommodation.
5. Shri Sujit Shrikant Joglekar is appointed as an
Court commissioner to inspect the suit premises for
measuring area of the premises which is in
possession of the defendant and submit his report
within 15 days from today.
6. The plaintiff is directed to pay the Court
commissioner fees of Rs. 10,000/- (Rs. Ten
Thousand only) directly to the Court commissioner
or in the Court within 5 days from today and the
Court commissioner shall issue notice to both
parties prior to inspection of the suit premises only
for measuring the area in possession of the
defendant.
7. Costs in cause.
(Dictated and pronounced in open Court.)
(P. K. Kharate)
Date : 08/04/2024 Judge, C.R. No. 36
Order dictated and typed on : 08/04/2024
Order checked and signed on : 08/04/2024
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