Bombay High Court
Amrit Bansraj Sahu And Ors vs Hansaben Jayantilal Dave And Ors on 15 February, 2023
Bench: Amit Borkar
20-fa-469-2022.doc
Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.469 OF 2022
Amrit Bansraj Sahu and Ors. ... Appellants
V/s.
Hansaben Jayantilal Dave and Ors. ... Respondents
WITH
INTERIM APPLICATION NO.18635 OF 2022
Amrit Bansraj Sahu and Ors. ... Applicants
In the matter between :-
Amrit Bansraj Sahu and Ors. ... Appellants
V/s.
Hansaben Jayantilal Dave and Ors. ... Respondents
Mr. Kunal Bhanage i/b Akshay Pawar for the
appellants.
Mr. P.G. Lad a/w Sayali Apte and Shreya Shah for
respondent No.5.
Mr. Ajit Shobhavat for respondent Nos. 1 to 3.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 15, 2023
P.C.:
FIRST APPEAL NO.469 OF 2022
1. Admit.
2. The appellant to file private paper book within One (1) year
from today, failing which the First Appeal shall stand dismissed
without further reference to this court.
INTERIM APPLICATION NO.18635 OF 2022
3. The appeal is filed by appellant/original defendant No.2. The
20-fa-469-2022.doc
relief in the plaint are as under.
"27. The Plaintiff will rely on the documents, a list whereof is
hereto annexed.
THE PLAINTIFF THEREFORE PRAYS :
a) declare that the notice issued by the Defendants No.1 under
the provisions of Section 95A of the MHADA Act dated 30 th
April 2004, which is annexed as Exhibit "H" hereto, is illegal,
bad in law and as such the case is liable to be quashed and
set aside and that the Defendant No.1 is not entitled to act
upon the same.
b) for an injunction, restraining the Defendant No.1 their
officers, Servants and agents or any other person or persons
claiming through or under them from evicting the Plaintiff
from suit premises namely, shop No.3 situated on the ground
floor of the building known as 'MATRU CHHAYA' lying at
57/59, S.K. Bole Road, Dadar (West) Mumbai-400 028 in
pursuant to the notice issued by the Defendant No.1 under
Section 95A of the MHADA Act dated 30th April, 2004 which
is annexed as Exhibit "H" hereto".
4. The learned Civil Court by the impugned judgment and
decree passed following order.
"It is further clarified that if the defendants offer
permanent alternate shop premises of 185 sq.ft to the
plaintiffs and if the Plaintiffs refused to accept the same, the
defendants will be at liberty to obtain the possession of the
suit premises from the Plaintiffs U/S.95A of MHADA Act".
5. The defendant No.2 being aggrieved by the Judgment and
Decree has filed present appeal.
6. The learned advocate for the appellant invited my attention
to the prayers in the suit, the prayers in the suit are restricted to
the legality and validity of the notice and consequential action of
eviction of the plaintiff based on notice. He, therefore, submitted
that at the most, the learned Trial Court could have granted relief
in terms of first two clauses of the decree. However, by granting
20-fa-469-2022.doc
relief, as is evident from third clause of the decree, the learned
Trial Court has exceeded his power and granted relief which was
not prayed for. Prima facie, I am satisfied that third clause of the
decree was not prayed for.
7. The applicant has, therefore, made out a case for grant of ad-
interim relief in the following terms ;
8. Clause 3 of the decree which is as under :-
"It is further clarified that if the defendants offer permanent
alternate shop premises of 185 sq.ft to the plaintiffs and if
the Plaintiffs refused to accept the same, the defendants will
be at liberty to obtain the possession of the suit premises
from the Plaintiffs U/S.95A of MHADA Act".
is stayed. Rest of the clauses in the decree remain in force during
the pendency of the appeal.
9. There shall be ad-interim relief in terms of prayer clause (a).
(AMIT BORKAR, J.)
