Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-140-18 Suit 2748-18
CNR NO. MHCC01000434 2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 140 OF 2018
IN
S.C. SUIT NO.2748 of 2017
Ayub Ubaidullah Shaikh ].. Plaintiff.
Versus
1. Shahin Shaikh ]
2. Shahida Shaikh. ].. Defendants.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 26th April, 2018.
Adv. B.P. Shukla for the plaintiff.
Adv. Chirag Mathuria for the defendants.
ORDER
The plaintiff has taken out this notice of motion restraining
the defendants from interfering in plaintiff's carrying out the business
and or causing obstruction in installing the CCTV Cameras and causing
obstruction or any type of nuisance to the plaintiff in respect of the suit
premises.
2. The plaintiff's case in brief is that he is tenant of the shop
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No.1, admeasuring 5’ x 7’ x 3’ made of B.M.Wall and A.C. Sheet Roof
with rolling shutter, situated at Ground Floor, Building known as
Nawab Building, 180/182 Sheriff Devji Street, (Chakala Street)
Mumbai400 003.
3. The defendant Nos. 1 and 2 are real sisters and they are
tenant in Room No.12, situated on the Second Floor of the Nawab
Building. They are not having interest in the suit premises. He is having
all documents in respect of the suit premises. He is carrying out
business of Telecommunication in the suit premises. His license is valid
up to 31/12/2019. The defendants have no right to obstruct and they
are continuously obstructing the plaintiff by abusing in filthy language
and threatening. He has lodged complaint to the police station against
the defendants, but no action is initiated against the defendants,
therefore they are engaged in harassing the plaintiff. All the tenants
and shop owners have made complaints against the plaintiff. It is stated
that the defendants have pulled out the CCTV Camera and inspite of
permission, he is unable to install the same. The plaintiff is having
apprehension that the defendants will not allow him to run the business
and install CCTV Camera, therefore he has taken out the present notice
of motion.
4. The defendants opposed the notice of motion by submitting
that the plaintiff is himself guilty of effecting and constructing illegal
and unauthorised structure by extending and encroaching on the main
entrance of the suit building thereby making the entrance of the suit
building narrow. The said suit premises is subject of the demolition
notice dated 13/06/2016 issued by the BMC. Due to the short
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entrance, the ingress and egress of the defendants is obstructed. The
plaintiff has also damaged main pillar of the suit building, therefore
they have made complaints to the police as their right to privacyand
right to live is obstructed. The plaintiff has earlier filed identical short
cause suit No.1640 of 2008 against the defendants and Deputy
Commissioner, BMC, which was also dismissed and the said fact is
suppressed by the plaintiff. It is stated that the rent receipt is not in
respect of the suit premises, but of different premises and that is in
respect of wooden stall. The landlord is totally different. The
documents does not justify the illegal construction carried out by the
plaintiff. It is stated that the plaintiff is a proprietor of both Danish
Perfumes and S.M. D. Ayub Malik Kannauji and the plaintiff is carrying
out the business in the name of Danish Perfumes. The licenses are not
in respect of the suit premises. It is stated that the suit premises is
illegal and therefore no license can be granted by the BMC to the
plaintiff. It is stated that there are complaints lodged by the defendants
against the plaintiff since 2007. It is stated that the plaintiff is
intentionally obstructing the defendants and he wants to install CCTV
Camera to keep an eye on the defendant. They have denied that they
have abused the plaintiff. It is stated that the shop is under repairs.
Since last more that 4 years and hence there is no question of business
being carried out. The defendants have stated that the plaintiff has
failed to make out any primafacie case and prayed for dismissal of the
notice of motion.
5. Heard Advocate for the plaintiff and defendants. Perused
the documents filed on record. Perused the authority filed by
defendants.
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6. In view of rival pleadings of the parties following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
(1) Whether the plaintiff has made out prima
facie case ? : No.
(2) Whether balance of convenience lies in
his favour ? : No.
(3) Whether irreparable loss will be caused
to plaintiff, if no relief is granted ? : No.
(4) What order ? : As per final order.
REASONS
Point Nos.1 to 3:
7. The plaintiff is praying for interim relief that the
defendants be restrained from causing obstruction in running his shop
and from obstructing him in installing the CCTV Camera. The
defendants have stated that the CCTV camera is already installed.
During the course of arguments the plaintiff was asked about the same
and he has stated that the CCTV Camera is already installed.
8. The plaintiff has stated that he is having documents on
record to show that he is in possession of the suit premises and he is
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carrying out business. He has annexed the licenses and other
documents on record. The defendants have vehemently objected to the
said documents and submitted that they are in respect of different
premises. The documents at Exh.A rent receipt dated 01/11/2016
shows that it is in respect of wooden stall No.178A. Therefore in 2016
rent receipt is in respect of wooden stall. Hence, description of suit
premises does not tally and it was for the plaintiff to show that the said
wooden stall was allowed to be made a permanent construction. The
record reflects that a notice was issued to the plaintiff under section 55
of the Maharashtra Regional Town Planning Act, wherein the plaintiff
has contended that the structure is not demarcated structure and not
come within the section 55 of the MRTP Act and had filed suit. The
court (Court Room No.5) in its order dated 13/04/2017 by relying
upon the photographs has come to the conclusion that the suit stall is
not construction of temporary nature. Therefore, when the contention
of the plaintiff in suit filed against Municipal Corporation of Greater
Mumbai is that construction on suit premises is permanent structure
and rent receipt filed in present suit is in respect of wooden stall, then
definitely it was for the plaintiff to bring material on record to show
that there was a permission for him to construct the shop. In the
documents issued by the Municipal Corporation at Exh.E, Shop No.1A
is mentioned and in Shop and Establishment License at Exh.D Shop
No.1 is mentioned and there is some scoring. Exh.E, F and G shows
different description of the suit premises. The clarification was required
in view of specific contention raised by the defendants that the plaintiff
is claiming relief in respect of unauthorised construction and some
different premises.
9. The photographs filed on record goes to show that the shop
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of the plaintiff is at the entrance to the building thereby the area for
ingress and egress from the building is reduced to half. The defendants
have categorically stated that this affects their right to live as many a
times people visiting the shop are standing in the said passage thereby
affecting their ingress and egress. The Advocate for the plaintiff
submitted that the suit premises is tenanted premises and the landlord
will look after the said aspect and the legality and illegality of the
construction is within jurisdiction of Municipal Corporation of Greater
Mumbai and the defendant has no concern with the same. Further,
the issue of illegal construction cannot be considered by this court as it
is a matter between defendant and Municipal Corporation. However, I
am unable to accept the said contention when the court has to consider
equity. The defendants submitted that they have a right to live in
proper surrounding and atmosphere and I do agree with the same.
Citizen has a right to live and they are not made to suffer by compelling
to live in inconducive surroundings. The defendants have stated that
they are lodging reports against plaintiff since 2007. So, the defendants
are agitating about their right to live and it cannot be termed as any
interference or obstruction. It is beyond imagination that without any
reason defendants are making complaints to various authorities.
10. The plaintiff has also earlier filed the suit as is mentioned
in the written statement of the defendants. The plaintiff has neither
pleaded nor filed any documents about the said litigation. When the
plaintiff is seeking relief about the suit premises of which one suit is
already pending i.e. LC Suit No.927 of 2017 and also another suit was
filed by the plaintiff bearing No.1640 of 2008 was dismissed, then in
the circumstances, the plaintiff was bound to mention about the same in
his plaint. I find it suppression of facts. The Advocate for the
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defendants has placed reliance on decision in case of Seemax
Construction Private Limited Versus State Bank of India [LAWS
(DLH) 1991 12 26], that:
“The suppression material fact by itself is a sufficient ground
to decline the discretionary relief of injunction. A party seeking
discretionary relief has to approach the court with clean hands and
is required to disclose all material facts which may, one way or the
other, affect the decision. A person deliberately concealing material
facts from court is not entitled to any discretionary relief. The court
can refuse to hear such person on merits”.
The said ratio squarely helps the case of the defendants.
11. The photographs filed on record depicts a picture that
entrance to the building is reduced to half. The notice is already issued
by the Municipal Corporation and the matter is subjudice. As earlier
discussed, the rent receipt is in respect of stall and the construction of
the plaintiff is not of a temporary nature. These circumstance do not
help the case of the plaintiff. The documents filed on record does not
show that they are in respect of the suit premises. Moreover,
continuously there are allegations and counter allegations between the
parties and the said dispute is going on since 2007. There is also
suppression of facts. If an injunction order as sought by the plaintiff is
granted, then the defendants definitely will be restrained from making
any grievance before the concerned authorities, which will infringe
their right to live. In these circumstances, I find that plaintiff is not
entitled for equitable relief. Consequently, plaintiff failed to make out a
primafacie case. I do not find any irreparable loss will be caused to the
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plaintiff and balance of convenience is not in his favour. Therefore, I
answer Issue Nos. 1 to 3 in negative and proceed to pass the following
order.
ORDER
Notice of Motion No.140 of 2018 is dismissed, accordingly
disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 26/04/2018
Dictated on: 26/04/2018
Transcribed on: 02/05/2018
Signed on: 03/05/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
03/05/2018 at 4.30 p.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
26/04/2018
Judgment/Order signed by P.O.on 03/05/2018
Judgment/Order uploaded on 03/05/2018
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