Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.303/2020 L.C. Suit No.875/2019
CNR NO.MHCC01-000731-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 303 OF 2020
IN
L.C. SUIT NO. 875 OF 2019
Mr. Rajesh Vinayak Sawant )
Room No.6, Chawl No.7,110 )
Municipal Tenements, )
D.G. Mahajani Path, Sewree )
Mumbai - 400 015 )…Plaintif
Vs.
Mumbai Municipal Corporation of )
Greater Mumbai A body incorporated duly)
constituted under the provisions of the )
Bombay Municipal Act, 1888, having )
their registered ofce at Mahapalika )
Bhavan, Mahapalika Marg, )
Mumbai - 400 001. )...Defendant
APPEARANCE:-
Ld. Adv. Mr. Harshal Mirashi for the plaintif.
Ld. Adv. Mr. Kumawat for the defendant/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 01st FEBRUARY, 2020.
O R D E R
This notice of motion is moved by plaintif under
order 39 Rule 1 of CPC praying to restrain defendant from
creating third party interest or handing over possession of suit
premises to any third party besides plaintif.
The case of plaintif in brief is as follows :
2. Plaintif is tenant in suit premises Flat No.1103 Co-
op Hsg Soc, 11th Floor, D G Mahajani Path, Mumbai. He along
with his family members is residing in suit premises since his
birth. He has fled suit for declaration that the notice sent by
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defendant on 21.02.2019 is bad in law so also for perpetual
injunction. As his fundamental rights were violated, he had
also preferred writ petition No.1592/2019 in Hon'ble Bombay
High Court. This writ petition is pending. Defendant
corporation had forced him to accept the keys and possession
of premises of Kandivali. Out of threat of loosing roof
overhead and being helpless, under the pressure of the
ofcers of corporation and their menace, he had accepted the
keys of the premises of Kandivali under redevelopment
project of the rehabilitation scheme. Since, his birth he is
residing in suit premises along with his family. His children are
also taking education in vicinity of the suit premises. The
premises of Kandivali is highly inconvenient and is virtually
uprooting him from his place of birth. The ofcers of
corporation had abruptly issued notice by superseding the
provisions of the Act and violating the principles of due
process of law. If defendant create third party interest, he will
sufer irreparable loss. He has prima-facie case. Therefore, he
had fled this suit and present notice of motion.
3. Defendant corporation has fled reply and denied
all the averments in notice of motion. According to them, in
year 2015 Rehab building for residents of 64 tenements was
completed in respect of Ashwamedh CHS, Sewri, Mumbai -
400 015. Out of 64 tenants, only 38 tenants accepted the
keys in respect of Rehab Building in Ashwamedh CHS. Plaintif
was also issued letter dated 04.11.2015 by the defendant to
collect keys of the fat constructed in Rehab Building. Instead
of collecting the keys plaintif became non-cooperative and
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approached this court. The 26 non-cooperative tenants
approached Hon’ble Bombay High Court by moving notice of
motion No.700/2018 in suit No.95/2014. The Municipal
Commissioner had passed order dated 30.01.2019 and
directed to allot 26 tenants in CTS No.1110 (Pt) Kandivali
Village, Kandivali (W). The 26 non-cooperative tenants
approached Hon’ble Bombay High Court in notice of motion
No.700 of 2019 in Suit No.95 of 2014. It was clearly stated
that 20 members have accepted the keys along with
possession letters with respect to C.T.S. No.1110 (Pt) Kandivali
Village Kandivali (W). Plaintif has also accepted the
permanent accommodation of allotment letter and accepted
the keys in Kandivali premises. Plaintif has no locus standi to
fle the suit and present notice of motion.
4. Heard, Ld. Advocate Mr. Harshal Mirashi for
Plaintif, Ld. Advocate Mr. Kumavat for defendant corporation.
On hearing the parties and on going through entire record of
the case, following points arise for my determination with its
fndings and for reasons to follow :l
S.N. POINTS FINDINGS
1 Whether plaintif proves that prima
facie case lies in his favour ? Redundant
2 Whether plaintif proves that balance
of convenience lies in his favour ? Redundant
3 Whether plaintif proves that
irreparable loss will be caused to him,
if the application is not allowed ?
Redundant
4 What order ? As per fnal
order.
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R E A S O N S
AS TO POINTS NO.1 TO 3
As all the points are interlinked with each other,
they are discussed together.
5. Ld. advocate for plaintif argued in lines of
pleadings in Notice of Motion and relied upon observations in
Mahadeo Savlaram Shelkar V/s Pune Municipal
Corporation & another (1995) 3 SCC 33.
6. Ld. Advocate argued in lines of pleadings in her
reply. According to her, medical students are already
inducted. Therefore, notice of motion is not maintainable.
7. I have given anxious consideration to arguments of
both the Ld. Advocates. Plaintif has fled this suit challenging
the notice dated 21.02.2019 issued by defendant & for
perpetual injunction. He has also fled writ petition No.1592 of
2019 in Hon’ble Bombay High Court on ground that his
fundamental rights are violated. This writ petition is pending.
It is case of plaintif in nutshell that he has accepted the keys
& possession of Kandivali premises under the menace, undue
infuence and pressure of defendants. The Kandivali premises
is inconvenient to him and his family. The defendants have
superseded the provisions of BMC Act & violated the
principles of due process of law. It is further averred in para 4
of afdavit of notice of motion that defendant corporation has
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handed over suit premises temporary to medical entrants of
KEM Hospital.
8. In reply, defendants have also contended that
plaintif has already accepted permanent accommodation of
allotment letter & accepted keys in respect of Kandivali
premises. It was further argued by defendants that induction
of medical students in suit premises is already done.
9. Whether the notice issued by defendant
corporation was in violation of principles of abuse of process
of law, provisions of BMC Act entitling plaintif to reliefs
sought and that plaintif had accepted keys of Kandivali under
menace, or threat of defendants can be decided only at the
time of fnal hearing when both parties will lead evidence. At
this stage, it is pertinent to note that though plaintif has
claimed preventive relief of restraining defendant from
creating third party interest in suit premises, in this notice of
motion, as reproduced above, already Medical entrants are
inducted in suit premises. The purpose for which present
notice of motion was moved is already frustrated. Therefore,
now the interim relief which plaintif is claiming in this notice
of motion does not survive and therefore, cannot be given.
Therefore, I answer point No.1 to 3 as redundant.
10. Having arrived at aforesaid fndings, the notice of
motion of plaintif deserves to be fled. In result, I proceed
with following order.
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ORDER
1. Notice of Motion No.303/2020 is hereby fled.
2. Notice of Motion No.303/2020 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 01.02.2020 City Civil Court, Gr. Bombay
Dictated on :l01.02.2020.
Transcribed on :l03.02.2020.
Signed on :l10.02.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME :l 13.02.2020, 04.43 pm.
NAME OF STENOGRAPHER :l Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
01.02.2020
JUDGMENT/ORDER signed by
P.O. on
10.02.2020
JUDGMENT/ORDER uploaded on 13.02.2020
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