Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 106-18 in Suit No. 2809-17
CNR NO.MHCC01 00035018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 106 OF 2018
IN
L.C. SUIT NO. 2809 OF 2017
Shri Prakash Kundandas Nagpal ....Plaintiff
V/s.
The Municipal Corporation of Greater Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 20th June, 2019.
Appearance:
Ld. Adv. Mohit Jadhav for the plaintiff.
Ld. Adv. Mrs. Tondwalkar for defendant/MCGM.
Ld. Adv. Mr. Suresh Dhole for defendant nos.2 & 3.
ORDER
1. The plaintiff by this notice of motion has sought to restrain the
defendant nos. 2 and 3 from carrying out further illegal work at the suit
premises. The plaintiff also has prayed for appointment of Court
Commissioner.
Admittedly, the Notice of Motion is for composite relief. It was
for the plaintiff to have prayed for separate reliefs by separate notice of
motion.
2. Heard Learned Advocate for the plaintiff, Learned Advocate for
the defendant corporation and Learned Advocate for defendant nos. 2
and 3.
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2 NM 106-18 in Suit No. 2809-17
3. The prayers in the suit, reads as under:
(a) That this Hon'ble Court by its mandatory order, direct the
Defendant Nos. 2 and 3 to restore the plinth and the foundation
thereunder of the suit premises i.e. Room No. 13 of the Himalaya
House, 79 their respective family, servants agent and /or an Palton
Road, Mumbai01 to its original position as per Sanction Plan issued by
the Municipal Corporation;
(b) That this Hon'ble Court by its order of injunction direct the
Defendant Nos. 2 and 3 and/or any other person claiming through them
to not to carry out further illegal work a the suit premises i.e. Room No.
13 of the Himalaya House, 79, Palton Road, Mumbai01 in violation of
the Sanction Plan of the Himalaya House;
4. The suit initially was filed for mandatory injunction. The
defendant corporation had filed the say to the notice of motion and had
contended that the plaintiff was issued notice under Section 354A of the
MMC Act. The suit structure was demolished on 27.04.2018. The
demolition report is filed on record.
5. The plaintiff now by this Notice of Motion had sought temporary
injunction restraining the defendant nos. 2 and 3 from carrying out
further illegal work at the suit premises. The plaintiff in paragraph no.
6 of the plaint has stated that the defendants are continuously doing the
illegal work. The plaintiff's first prayer is for mandatory injunction for
restore the premises of defendant no. 1 to its original form. The
position is restored by the defendant corporation.
It is now the contention of the plaintiff that defendant nos. 2 and
3 are carrying out construction. The plaintiff had failed to show that
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3 NM 106-18 in Suit No. 2809-17
what unauthorized construction is being carried out by the defendant.
The plaintiff prayed for restraining the defendant nos. 2 and 3 from
carrying out further work at the suit premises, what further work is not
stated by the plaintiff. The prayer is vague and cannot be entertained.
It was for the plaintiff to specifically prove is to what construction the
defendant nos. 2 and 3 are carrying out and has specifically to plead as
how it would affect the right of the plaintiff.
The plaintiff also had prayed for appointment a Structural
Engineer as Court Commissioner to verify and ascertain the nature of he
work. The corporation is a Competent Authority which can verify the
position of the suit structure. The plaintiff can well to approach the
corporation and make the prayer for officials of the corporation to visit
the suit structure.
The plaintiff cannot be permitted to make composite prayer.
The plaintiff has failed to made out primafacie case. The balance
of convenience does not lies in favour of the plaintiff. The plaintiff
would not be put to irreparable loss, if the temporary injunction is
refused. In the result, following order is passed.
ORDER
The Notice of Motion No. 106/2018 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 20.06.2019 City Civil Court, Mumbai.
Dictated on : 20.06.2019
Transcribed on : 21.06.2019
Signed by HHJ on : 04.07.2019
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4 NM 106-18 in Suit No. 2809-17
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.07.2019 at 4.15 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
20.06.2019
JUDGMENT/ORDER signed by
P.O. on
04.07.2019
JUDGMENT/ORDER uploaded
on
04.07.2019
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