Interim Order 1

Order Details: Notice of Motion
Pdf Text: NM 29118 in L.C. SU 69918 : 1 : Dt. 13.07.2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 291 OF 2018
(CNR NO. MHCC010011942018)
IN
LONG CAUSE SUIT NO. 699 OF 2018
(CNR NO. MHCC010004292018)
Smt. Gangabai Yeshwant Patil ...Plaintiff
Versus
1. The Municipal Corporation Of
Greater Mumbai
2. The Asstt. Municipal Commissioner,
M East Ward
3. Smt. Lilabai Laxman Patil
4. Mr. Kishor Laxman Patil ...Defendants
CORAM : HER HONOUR JUDGE
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
DATE : 13.07.2018.
Adv. Mr. Ravindra Singh for Plaintiff.
Adv. Mr. Giri for Defendant Nos. 1 and 2 / BMC.
Adv. Mr. S.R. Singh for Defendant Nos. 3 and 4.
ORAL ORDER
The present Notice of Motion is taken out by the Plaintiff
restraining the Defendant Nos. 3 and 4 from carrying out the
construction.
2. The Plaintiff claims that she is coowner of the suit property
i.e. Plot of land bearing C.T.S. No. 57, 57/15 of Village Mandala. She
further claims that Defendant nos. 3 and 4 are also coowner and
occupied room premises consist of ground floor known as 'Laxman Patil
House'. The Plaintiff claims that her father in law Mr. Ramchandra
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Dhanaji Patil was seized, possessed and occupied the suit plot of land
with structure standing thereon. It is the contention of the Plaintiff that
Defendant Nos. 3 and 4 seized and possessed one room premises consist
of 10" ft. x 20" sq. ft. which is adjacent to the premises of plaintiff
having a common wall. However it is the grievance of the Plaintiff that
Defendant Nos. 3 and 4 unauthorizedly started construction work by
removing the A.C. Sheet Roof and started constructing upper floors. It
is also grievance of Plaintiff that father of Defendant No. 3 Keshav
Ramchandra Patil illegally mutated his name in the revenue Record in
the year 1967. The Plaintiff further submits that she is one of the
bonafide owner and occupier of the room premises adjacent to the suit
premises having common single wall. The grievance of the Plaintiff is
that the Defendants are carrying out the construction illegally.
Therefore it is necessary to restrain the Defendant nos. 3 and 4 from
carrying out construction. Therefore Plaintiff filed the suit for Perpetual
Injunction restraining the Defendant Nos. 3 and 4 from carrying out
illegal construction. So also Plaintiff prayed that Defendant Nos.1 and 2
be directed to take legal action against Defendant no. 3 and 4.
3. The Defendant Nos. 1 and 2 i.e. Corporation not filed any
reply. The Defendant Nos. 3 and 4 filed reply and denied the
contentions made by the Plaintiff.
4. It is submitted by Defendant Nos. 3 and 4 that their
families staying in the suit premises for last 70 years, The Plaintiff and
Defendants are closed relatives. It is specific case of Defendant Nos. 3
and 4 that the husband of the Plaintiff was real uncle of father of
Defendant no. 4 and after their demise, the property was distributed
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amongst legal heirs and since then they are residing separately. It is
pointed out that as per official Plan of the Municipal Corporation, the
premises in their possession is shown as Room Nos. 57 and premises in
possession of the Plaintiff is shown as Room No. 58. It is the contention
of the Plaintiff that they are carrying out necessary repairs within their
room without disturbing the plaintiff. On the contrary, it is alleged by
the Defendant Nos. 3 and 4 that Plaintiff has encroached their wall to
take support of her Gallery. It is submitted that their suit premises
required urgent and immediate repairs. It is submitted that there is no
cause of action for the Plaintiff to file the present Suit. Hence
Defendant Nos. 3 and 4 prayed to reject the Notice of Motion taken out
by the plaintiff.
5. Considering the rival submissions made on behalf of both
the parties following Points arise for my determination and I answer the
same together with reasons thereon as under :
POINTS FINDINGS
1. Whether Plaintiff made out prima facie
case ? In the Negative.
2. Whether balance of convenience lies in
favour of Plaintiff ?
Does not Survive.
3. To whom irreparable loss will be caused ? Does not Survive.
REASONS
As to Point No. 1 :
6. This is a suit for injunction simplicitor. After going through
the Plaint the relief claimed against the Corporation is that the
Corporation to take action against Defendant Nos. 3 and 4 for
unauthorized construction. The Defendant / Corporation is the Planning
Authority. Corporation supposed to take the action if the construction
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is illegal. Therefore Corporation can not be directed to take the action.
7. It is the contention of the Plaintiff is accepted that
Defendant Nos. 1 and 2 in collusion with Defendant Nos. 3 and 4 are
not taking action for alleged unauthorized structure. However in order
to issue such direction it is necessary to come to conclusion that
disputed structure is unauthorized structure. After going through the
relief claimed in the Plaint, if interim injunction is granted restraining
the Defendant Nos. 3 and 4 from carrying out construction and
directing the Defendant Nos. 1 and 2 to initiate the action then it will
amount to deciding the suit at interim stage. The relief claimed in the
interim application and final suit are identical. It is pertinent to note
that neither Corporation initiated any action against the Plaintiff nor it
is the contention of Corporation that Defendant Nos. 3 and 4 carried
out any unauthorized structure. The Defendant Nos. 1 and 2 is the
Competent Authority to state about the legality of structure. If the
Corporation finds that the Defendant Nos. 3 and 4 is not carrying out
tenantable repairs and carrying out unauthorized construction under
the garb of repairs then Corporation is duty bound to take the action.
Therefore unless the Competent Authority comes to conclusion that
alleged construction is unauthorized, stopping the said construction by
passing adinterim injunction will defeat the right of the party to get his
property repair. After going through the pleadings it appears that the
relief claimed in the present Notice of Motion are premature.
8. Besides this, if we go through the pleadings it appears that
Plaintiff and Defendant are close relatives. The suit plot is inherited by
the Plaintiff and Defendant through common ancestors. Though suit
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plot is the property of joint family, the parties are not residing jointly.
There is severance of status. The Plaintiff is residing in separate
premises which is numbered as 58. At the same time the Defendant
Nos. 3 and 4 are residing in separate premises which is numbered as 57.
9. The Plaintiff also claims that her residential premises is
redeveloped twice. While carrying out the said redevelopment the
consent of other coowner is not obtained which itself shows that there
is severance of status. Under such backdrop plaintiff can not claim any
right in the structure occupied by the Defendant Nos. 3 and 4 which
came to their share.
10. It appears that the grievance of the Plaintiff is that
Defendant Nos. 3 and 4 are carrying out unauthorized construction.
However except bald statement of the plaintiff, there is nothing on
record to show that the said construction is illegal and unauthorized.
Even after appearance the Corporation is not commenting that suit
structure is unauthorized. The Plaintiff is not Competent Authority or
person who can Certify about the legality of structure. It is pertinent to
note that the Defendant Nos. 3 and 4 claims that they are carrying out
repairs of their premises. It is nothing to do with a structure of Plaintiff.
It is also not the case of plaintiff that due to the alleged repair any
damage is caused to their structure. So also it is not a case of the
plaintiff that due to the alleged work carried out by the Defendant
Nos. 3 and 4 her easementary rights are denied. From the pleadings it
appears that the relations between the parties are strained. Therefore
while Defendant Nos. 3 and 4 is carrying out the repair work, the
present suit is filed by the Plaintiff. At the most plaintiff can point out
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about the said alleged unauthorized construction to the Defendant
Nos. 1 and 2. Thereafter Corporation will verify the substance in
allegations made by Plaintiff and will initiate action as per provision
prescribed under law. As stated earlier if the adinterim relief is
granted as prayed by the plaintiff then it will amount deciding the suit
at interim stage. Therefore, Plaintiff failed to make out primafacie case
for grant of adinterim relief. Hence, I record my findings at Point
No. 1 in Negative.
As to Point Nos. 2 and 3 :
11. Since my findings to Point no. 1 is in the Negative, question
of balance of convenience and irreparable loss will not arise. Therefore,
I have recorded my findings at Point No. 2 and 3 as does not survive
and proceed to pass following order :
ORDER
1. Notice of Motion No.291 of 2018 stands rejected.
2. Earlier order stands vacated.
(SANJASHREE J. GHARAT )
Judge
City Civil Court,
Gr. Mumbai.
Date : 13.07.2018.
Dictated on : 13.07.2018.
Transcribed on : 17.07.2018.
Signed on : 19.07.2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
13.07.2018 at 1.01 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
Date of Pronouncement of
JUDGMENT/ ORDER
13.07.2018
JUDGMENT/ORDER signed by P.O.
on
19.07.2018
JUDGMENT/ORDER uploaded on 23.07.2018
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