Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.44/2019 1 Suit No.385/2019
CNR No.MHCC010000922019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.44 OF 2019
IN
SUIT NO.385 OF 2019
Mustaqueem Ahmed Shaikh & Ors. .. Plaintiffs
Versus
Mrs. Rajeshri Rajesh Sirvadkar .. Defendant
Shri. V. T. Dubey advocate for Plaintiffs.
None for Defendant.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 4th March 2019
ORAL ORDER
Notice of motion is taken out by plaintiffs seeking relief that
pending and hearing and final disposal of suit this Court be pleased to
restrain defendant, her servants, agents or any other persons acting on
her behalf from carrying out any construction activities on suit premises
i.e. area 25 x 70 square feet, Sanjay Gandhi Nagar, near LPC Colony,
Opp Highway Apartment, Sion Trombay Road, Chunabhatti, Sion
(East), Mumbai – 400 022 without following due process of law.
2. It is the contention of plaintiffs that they are in exclusive use,
occupation and in settled possession of premises area 25 x 70 square
feet, Sanjay Gandhi Nagar, near LPC Colony, Opp Highway Apartment,
SionTrombay Road, Chunabhatti, Sion (East), Mumbai (hereinafter
referred to as 'suit premises'). Plaintiff Nos.1 to 4 acquired suit
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NM No.44/2019 2 Suit No.385/2019
premises in pursuant to writing dated 11.11.1999, 24.02.1995,
23.06.1995 and 21.12.1995 respectively from previous owner of the
same. As they are in possession of suit premises so an Appeal
No.209/2018 is pending before GRC. Defendant who is Corporator from
Ward No.172 of Municipal Corporation in collusion and connivance
with local police officer has partly demolished suit premises on
18.12.2018 and they are bent upon to dispossess plaintiffs from suit
premises without following due process of law and also want to carry
out illegal and unauthorized construction and structure for her office. It
is contended that plaintiffs are entitled to relief as sought and in case
relief is not granted then they will suffer irreparable loss which cannot
be compensated in terms of money. Accordingly, plaintiffs have sought
relief in above terms.
3. Defendant served with notice but she neither appeared nor filed
reply to notice of motion.
4. Heard learned Adv. Dubey for plaintiffs on notice of motion. He
drawn my attention to documents filed on record to show that plaintiffs
are in possession of suit premises. Accordingly he urged to grant relief
as sought.
5. In view of above facts following points arise for my
determination and I have recorded my findings to the same with
reasons to follow as under :
POINTS FINDINGS
1.Whether plaintiffs have got prima facie case? ...No.
2.Whether plaintiffs will suffer irreparable loss if
temporary injunction as sought is not granted?
...No.
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NM No.44/2019 3 Suit No.385/2019
3.Whether balance of convenience lies in favour of
plaintiffs?
...No.
4. What order? As per Final
Order
REASONS
As to Point Nos.1 to 3
6. Plaintiffs have filed copy of ration cards to show that same were
issued at the addresses given in the said ration card. They have also
filed copy of Registration Certificates of Establishment of plaintiff No.1,
son of plaintiff No.2, plaintiff Nos.3 and 4 to show that same were
issued at the address of hut No.9, hut No.8, hut No.6 and hut No.5 of
Sanjay Gandhi Nagar Zopadppati, Sion Trombay Road, Mahatma
Gandhi Nagar, Sion, Mumbai. They have also filed copy of agreement to
show that plaintiff Nos.1 to 4 acquired aforesaid respective premises
from their respective vendor. It is pertinent to note that plaintiffs have
not given description of their respective premises with four side
boundaries separately in plaint. They have not mentioned about Hut
Number of their respective premises in plaint para 1 wherein they have
given description of suit premises. Therefore, at this stage, it cannot be
said that documents annexed with plaint relate to suit premises. They
have not filed copy of alleged memo of Appeal No.209 of 2018 pending
before GRC as contended in para 4. They have also not filed
photographs of suit premises which they claimed to have been partly
demolished on 18.12.2018. They have filed copy of fire report issued
by Dy. Chief Fire Officer, Mumbai Fire Brigade relating to Hut Nos.6 to
11, Sanjay Gandhi Nagar, Near CLI colony, Sion Trombay Road, Sion,
Mumbai 22 which shows that fire had occurred at aforesaid place and
damage was caused to bamboo frames, plastic sheet roof, household
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NM No.44/2019 4 Suit No.385/2019
articles and damage has been caused severely due to fire. But plaintiffs
have not filed any recent photograph of above referred hut numbers to
show whether same are in existence or not. They have not specifically
pleaded that hut Nos.5, 6, 8 and 9 are part of suit premises. So, much
reliance cannot be placed upon the said fire report also. In above
circumstances I hold that plaintiffs have failed to make prima facie case
and balance of convenience also does not lie in their favour. They have
also failed to prove that they will suffer irreparable loss in case relief
sought is not granted. Hence, I answer point nos.1 to 3 in negative and
pass following order.
ORDER
Notice of Motion No.44 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 04.03.2019 Gr. Bombay
Typed on : 04.03.2019
HHJ signed on :
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NM No.44/2019 5 Suit No.385/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06.03.2019, 4.00 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
04.03.2019
JUDGMENT/ORDER signed by P.O.
on
05.03.2019
JUDGMENT/ORDER uploaded on 06.03.2019
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