Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No. 32-18 in L.C. Suit No.1521-2016
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.32 OF 2018
(CNR No. MHCC010000492018)
IN
LONG CAUSE SUIT NO.1521 OF 2016
(CNR No.MHCC010062102016)
1. Ms. Bepsy Hakim and 2 Others. ]... Plaintiffs
Versus
1. MCGM and 3 others ]... Defendants
Coram : M. S. Deshpande, Judge
(Court Room No. 5)
Date : 21st August, 2018.
Mr. Rajesh P. Khobragade, advocate for the plaintiffs.
Ms. Patil , advocates for the defendant nos. 1 to 3.
Mr. N. N. Vaishnawa i/b. M/s. N. N. Vaishnawa and Co., advocates for
the defendant no.4.
O R D E R
1. The defendant no.4, an occupant/tenant of the premises
located at the property Royal Terrace, Wood House Road, Colaba,
Mumbai has taken out this motion seeking permission to carry out
various repairs to the suit premises especially mentioned in prayer
clause no.(a)(i) to (viii).
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2 NM No. 32-18 in L.C. Suit No.1521-2016
2. Primafacie it is undisputed that the defendant corporation
is the owner of the plot of land, whereas the plaintiffs are lessee of the
plot and owners/landlords of the super structure and the defendant
no.4 is tenant. According to plaintiffs room no.2 is let out to defendant
no.4 only for the residential purpose. However, she has carried out
unauthorized construction and converted the user of the suit premises
to commercial purpose and also encroached upon common passage etc.
The defendant no.4 of course denied all these allegations. Thus, the
plaintiff has instituted suit for declaration that the construction carried
out by the defendant no.4 is unauthorized and liable to be demolished,
with a consequential relief of mandatory injunction for directing the
defendants to remove said construction etc.
3. The Ld. Advocate for the defendant no.4 submitted that the
defendant no.4 is running diagnostic center/clinic at the suit premises.
She is tenant for more than last 40 years. According to him, no
permission is required from the Competent Authority to carry out such
tenantable repairs. However, in view of an adinterim order dated
19/07/2016, passed on notice of motion taken out by the plaintiffs, the
defendant no.4 has taken out this motion seeking permission to carry
out tenantable repairs.
4. The nature of proposed repairs is described in paragraph
nos.4 (a) to (k) of the affidavit filed in support of the motion. According
to the Ld. Advocate for the defendant no.4 the repairs are urgent in
nature. He relied on the report of an architect and photographs snapped
in support of the same.
5. On the other hand the Ld. Advocate for the plaintiffs
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3 NM No. 32-18 in L.C. Suit No.1521-2016
submitted that the defendant no.4 has committed breach of the terms of
lease. She has already carried out unauthorized additions and
alterations to the suit premises, and therefore, she has been restrained
from carrying out any repairs by an adinterim order passed on
19/07/2016. He further submitted that a suit for eviction of the
defendant no.4 is pending before the Small Cause Court, and therefore,
the defendant no.4 could seek such relief in that suit. According to him
the defendant no.4 cannot carry out such repairs without the
permission of the plaintiffs landlords. He further submits that such
relief, the defendant no.4 cannot seek in this suit.
6. On the other hand the Ld. Advocate for the defendant
corporation submitted that the defendant no.4 has to seek necessary
permission under Mumbai Municipal Corporation Act from the
competent authority, as the defendant no.1 is lessor of the land,
whereas the plaintiffs are the lessee and the defendant no.4 is the
tenants in the structure owned by the plaintiffs. In reply, the Ld.
advocate for defendant no.4 submitted that in view of provisions of
Section 342 of the MMC Act such permission is not required for
tenantable repairs.
7. Perused the copies of documents and photographs placed
on record as well as order dated 19/07/2016 by which adinterim relief
was granted in favour of the plaintiffs by temporarily restraining the
defendant no.4 from carrying out any repairs, construction etc., to the
suit premises.
8. Earlier by order dated 25/05/2018, an adinterim relief to
do paste control of the ceiling of operation theatre and repair part of
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4 NM No. 32-18 in L.C. Suit No.1521-2016
ceiling by using the same material was granting in favour of defendant
no.4 as operation theatre would be a place required to be used in case
of emergency in any clinic.
9. Considering the nature of the present suit and the reliefs of
declaration and mandatory injunction claimed in respect of alleged
unauthorized construction carried out by the defendant no.4 and
pendency of a full fledged suit for eviction before the Small Cause Court
and undisputed landlord tenant relationship inter se plaintiffs and
defendant no.4, such relief as claimed in this motion can be sought
before the Small Cause Court by adopting recourse permissible under
law. Thus, the motion for such relief is not tenable in this suit.
Therefore, the defendant no.4 is not entitled to such reliefs considering
the scope of this suit. Accordingly, the notice of motion deserves to be
dismissed with a direction to the parties to bear their own costs of the
motion. Thus, the following order is passed.
ORDER
1. The Notice of Motion No. 32 of 2018 is dismissed.
2. Parties to bear their own costs of the motion.
(M.S. Deshpande)
AdHoc Judge,
Dated: 21.08.2018 City Civil Court, Mumbai.
Directly typed on : 21/08/2018
Checked by HHJ on : 21/08/2018
Corrections carried out on : 21/08/2018
Signed by HHJ on : 21/08/2018
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5 NM No. 32-18 in L.C. Suit No.1521-2016
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.08.2018 at 5.45 p.m.
NAME OF STENOGRAPHER : Mrs. Rupali S. Bhor
Name of the Judge
(With Court Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
21.08.2018
JUDGMENT/ORDER signed by P.O. on 21.08.2018
JUDGMENT/ORDER uploaded on 21.08.2018
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