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2023 Supreme(Online)(Bom) 21769
APPELLATE SIDE,BOMBAY
SANDEEP V. MARNE, J
Shrikant Shriram Narsaria – Appellant
Versus
Sangeeta Rajendra Sharma – Respondent
CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 281 OF 2023 | INTERIM APPLICATION NO. 3651 OF 2023 | INTERIM APPLICATION NO. 7906 OF 2023 | S.C. SUIT NO. 7298 OF 2006
For the Appellants/Petitioners: Mr. Shyam Mehta, Mr. Jai Chhabra, Ms. Tvishi Pant
For the Respondents: Mr. Manoj Thakur
Mr. Mohit Khanna, Mr. Uttam Rane
Mr. Prateek Pai i/by Mr. Avishkar Sawant, Ms. Pushpa Tiwari i/by S.R. Shukla
Redevelopment can proceed amidst ongoing disputes to prevent endangering lives, with safeguards for co-owners' rights upheld.
Headnote:(A) Civil Procedure Code, 1908 - Order 39 - Partition of property - Appellant challenges rejection of motion for redevelopment of suit property while proceedings over ownership are pending - Held, redevelopment can proceed to prevent endangering co-owners and tenants lives, keeping Appellant's and co-owners' best interests safeguarded during litigation. (Paras 10-11)
(B) Co-ownership & Tenancy - Not all co-owners can stall redevelopment - Majority tenants' consent crucial; redevelopment not to be delayed indefinitely due to disputes or dissatisfaction with offers - Prioritizing safety over family disputes. (Paras 13-14)
Facts of the case:
Appellant seeks to execute necessary documents for redevelopment after long-standing ownership disputes among family members. Concerns over building safety, with reports indicating it requires major repairs and several developers having withdrawn offers due to lack of cooperation from some owners.
Findings of Court:
Redevelopment allowed pending final resolution of ownership, protecting rights of all parties involved while addressing safety hazards.
Issues: Is the redevelopment of the property permissible despite ongoing ownership disputes? Can the process be expedited to ensure tenant safety?
Ratio Decidendi: Majority consent among stakeholders aids redevelopment; holding back on execution based on individual discontent is unsustainable, especially regarding public safety and welfare.
Result: Appeal partly succeeds allowing redevelopment while ensuring entitlements of dissenting parties are safeguarded in agreements executed on their behalf.
| Table of Content |
|---|
| 1. procedure not prohibiting redevelopment. (Para 1 , 2) |
| 2. appellant's motion address ownership disputes. (Para 4 , 5) |
| 3. building's condition necessitating redevelopment. (Para 6 , 9) |
| 4. rights of co-owners versus safety. (Para 10 , 12) |
| 5. final decision affording redevelopment while safeguarding rights. (Para 13 , 17 , 18 , 19) |
JUDGMENT
1. This appeal is fled by the Appellant challenging Order dated 15th March 2023 passed by the City Civil Court rejecting Notice of Motion No.676 of 2022. The Notice of Motion was fled by the Appellant, who is original Defendant No.2 (b) in the Suit, seeking following reliefs:-
i) Pass such order directing the plaintif and defendant No.1(d) through his guardian to execute all such documents, including applications, forms, memorandums of understanding, development agreement as may be required for the development of the property [being land bearing CTS Nos. 545, 545/1, 545/2, 545/3, 545/4, 545/5 & 545/6 in Revenue village - Malad (E), Taluka - Borivali, Mumbai Suburban District, situated at Rani Sati Marg, Malad (East), Mumbai 400 097, together with structures thereon];
ii) in the alternative to prayer (i) above, direct the Registrar of this Hon'ble Court to execute all such documents, including applications, forms memorandums of understanding, development agreement as may be required for the development of the property [being land bearing CTS Nos. 545, 545/1, 545/2, 545/3, 545/4, 545/5 & 545/6 in Revenue village - Malad (E), Taluka - Borivali, Mumbai Suburban District, situated at Rani Sati Marg, Malad (East), Mumbai 400 097, together with structures thereon], on behalf of and in the name of the Plaintif and Defendant No. 1 (d), by afixing his signature and seal thereon,
iii) pass an order and direction restraining the plaintif and defendant No. 1 (d) and/or their representatives, oficers, assigns, representatives, servants, agents and any other person claiming by through or under them, by a temporary order and injunction from in any manner directly or indirectly interfering in the proposed development of the property [being land bearing CTS Nos. 545, 545/1, 545/2, 545/3, 545/4, 545/5 & 545/6 in Revenue village - Malad (E), Taluka - Borivali, Mumbai Suburban District, situated at Rani Sati Marg, Malad (East), Mumbai 400 097, together with the structures thereon] in any manner whatsoever;
iv) pass an order directing the plaintif to remove the lock placed by her on a portion of block No.2, to enable the redevelopment of the property (being land bearing CTS Nos. 545, 545/1, 545/2, 545/3, 545/4, 545/5 & 545/6 in Revenue village - Malad (E), Taluka - Borivali, Mumbai Suburban District, situated at Rani Sati Marg, Malad (East), Mumbai 400 097, together with structures thereon];
v) pass an order appointing a private receiver to secure the disputed claim of the plaintif and undisputed claim of defendant No.1(d) from the area and consideration received by the developer being M/s. SL Realty and Arch Group from the proposed redevelopment of the property [being land bearing CTS Nos. 545, 545/1, 545/2, 545/3, 545/4, 545/5 & 545/6 in Revenue village -Malad (E), Taluka - Borivali, Mumbai Suburban District, situated at Rani Sati Marg, Malad (East), Mumbai 400 097, together with structures thereon;
vi) Grant ad-interim reliefs in terms of prayer clause (i) to (v);
vii) Grant such other reliefs as this Hon'ble Court may deem ft and proper.
2. Short Cause Suit No. 7298 of 2006 has been fled by the Plaintif/Respondent No.1, seeking partition of the land bearing Survey No.545 admeasuring 1235 square meters, at village Malad, Borivali, Mumbai Suburban District together with house/structure constructed thereon and for allotment of 1/9th share to her. It appears that the suit is subsequently amended seeking allotment of 1/6th share in Plaintiffs favour. 3. It appears that the structure constructed on the suit property is occupied by owners as well as the tenants. It is Appellantfs case that the structure standing o
