Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.207 OF 2018
IN
S.C. SUIT NO.1641 OF 2017
CNR NO.MHCCO10008202018
Virendra Babulal Shah ..Plaintiff
V/s
Smt. Jubedabai d/o Sahehbhai Master ..Defendant
Ld. advocate Rupesh Pal for the plaintiff
Ld. advocate D'lima for the defendant
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 04/07/2019
ORAL ORDER
1. The plaintiff has tendered this notice of motion to
restrain defendant by order of temporary injunction
from obstructing the plaintiff tenantable work of
sliding to the balcony/window of the plaintiff office
premises no.4, situated at Krishna (Harjimal Nandlal
building)office owners welfare society, 2nd floor, 75,
Nagdevi cross lane,Mumbai400 003(hereinafter
referred to as the suit premises).
2. In short the case of the plaintiff is that the plaintiff is
the owner of the suit premises as described above
and is in possession since 1983. The balcony
admeasuring 8 x 8 sq. feet of the suit premises is
covered by grill since long time and now due to rainy
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season the plaintiff want to put sliding to safeguard
the suit premises. The defendant is in adjacent
building. The defendant is nowhere concerned with
the suit premises of the plaintiff. The defendant
issued false notice through her advocate and called
upon the plaintiff to remove the iron grills and
tarpoline at back side of suit premises. The plaintiff
has given detailed reply. The plaintiff wants to do
tenantable repairs by putting the sliding to the said
balcony.
3. The defendant submitted that the suit filed by the
plaintiff is badinlaw. The suit premises is an illegal
structure for which there is no sanction or permission
obtained from the competent authority. The plaintiff
has suppressed the material facts from the Court. The
decree is passed in L.C.Suit No.7947 of 1992 filed by
the defendant and her brother against the brother of
plaintiff restraining him from carrying out any
construction work on the open space admeasuring 8'
x 8' on the second floor. Under the guise of the
alleged tenantable work of sliding of the balcony/
window, the plaintiff wish to deprive the family of
the defendant from light and air and prayed for
rejecting the notice of motion.
4. On the rival submissions of the parties, following
points arise for my determination and findings to it
are recorded for the reasons stated to follow:
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POINTS
(i) Whether the plaintiff has made out a prima
facie case?
(ii) Whether the balance of convenience lies in
favour of plaintiff?
(iii) To whom the irreparable loss would be
caused?
(iv) What order?
FINDINGS
(i) In the negative.
(ii) In the negative.
(iii) To the defendant
(iv) As per final order
REASONS
Point Nos. 1 to 3
5. The claim of the plaintiff is that he is carrying out
tenantable repairs by covering the balcony with
sliding to prevent rain water entering in the suit
premises. The plaintiff submit that defendant issued
notice through her advocate for removing the iron
grills and tarpoline at back side of suit premises. The
plaintiff replied the notice. The plaintiff submits that
defendant threatened the plaintiff for obstructing the
work of putting sliding to the said balcony window
and accordingly the plaintiff has filed the suit. He
has lodged the complaint and NC was registered. It
appears that the said threat was given by the
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defendant on 05/06/2017 and the plaintiff lodged
complaint on 18/06/2017 which itself prima facie
create some suspicion about the incident of the
alleged obstruction by the defendant.
6. The contention of the defendant is that defendant
has filed suit against plaintiff's brother who was
restrained from carrying out the construction at the
said open space. The suit was filed by the defendant
on the premise of the construction of the wall at the
said open portion of the open area and therefore the
light and air of her premises was obstructed due to
the construction. The suit was decreed. The plaintiff
has not made any avernment about decree in Suit
No.7947 of 1992 and therefore not entitled for
injunction.
7. Ld. Counsel for the plaintiff submitted that plaintiff
was not aware about the suit. On perusal of the
reply to the notice given by the plaintiff to the
defendant, it appears that the plaintiff got the
knowledge about the suit in the first week after he
received notice from the defendant but the notice
was sent in the year 2014 and at the time of filing of
the suit, the plaintiff was aware of the said suit. The
plaintiff has suppressed the material facts in the
plaint. Apart from that plaintiff claims that he wish to
put sliding on the balcony. By putting the sliding of
the office premises of the defendant it prima facie
appears that it would block the air and light to the
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premises of the defendant. Apart from that if the
plaintiff proceeds with the work of putting sliding, at
this stage the plaintiff would get the relief which he
has prayed in the suit. The relief of final nature
cannot be granted at the interim stage, unless there is
extreme hardship urgency and same is necessary to
maintain status quo pending suit. In this
background, the plaintiff has not made out any prima
facie case. Apart from that the plaintiff claims that
he is a member of the society wherein the suit
premises is situated. There is nothing to show that
requisite permission was obtained by the plaintiff
from the concerned society and the MCGM. In the
absence of the same, it cannot be said that the
plaintiff has made out prima facie case for grant of
temporary injunction. Prima facie it appears that the
relief is of final nature and judgment in the earlier
suit cannot be ignored, therefore the balance of
convenience does not lie in favour of the plaintiff.
No irreparable loss would be caused to the plaintiff.
Thus, in view of the above discussion, I answer
point nos.1 to 3 accordingly.
POINT NO.4
8. In view of the foregoing reasons and findings to point
nos.1 to 3, the notice of motion needs no
consideration. Hence, it is expedient to pass
following order :
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ORDER
1. Notice of Motion No.207/2018 is rejected.
2. Cost in cause.
04/07/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 04/07/2019
Transcribed on : 08/07/2019
Signed on : 19/07/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
19/07/19 at 1.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
04/07/2019
Judgment and order signed by P.O. 19/07/2019
Judgment/order uploaded on 19/07/2019
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