Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 360/20 (SCS 3109/07)
MHCC010008232020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.360 OF 2020
IN
SHORT CAUSE SUIT No.3109/2007
1] Mr. Mariano Fernandes
2] Mrs. Mary alias Angela Fernandes … Plaintiffs
Versus
1] Ashanagar Phase No.II CHSL.
2] The Municipal Corporation
of Greater Mumbai. ... Defendants
AND
1] Mr. N. S. N. Murthy
& 7 Ors. … Office bearers
Appearance :
Mr. M. V. Holamagi, Advocate for plaintiffs.
Ms. Vaishali Ugale, Advocate for defendant No.1.
Mrs. Tondwalkar, Advocate for defendant No.2/M.C.G.M.
CORAM : S. H. SALUNKHE,
JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 23/08/2022.
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O R D E R
. The plaintiffs taken out present Notice of Motion, for
mandatory temporary injunction directing the defendants to remove all
obstructions made in the gate No.A and B, remove lock, demolish wall
fixed at gate No.B and for permission to put grill, for use by the
plaintiffs and small children and parents for coming to play school and
nursery run by the plaintiffs and further to struck down defence of the
defendants for breach of the interim order.
2] It is contended that the plaintiffs filed suit being aggrieved
by the highhanded action taken by defendant No.1. This Court granted
injunction against defendants. The defendants were fully aware about
granting of injunction however, the defendant No.1 willfully and with
malafide intention committed breach of the order passed by this Court.
In fact, the gate No.A which was the original gate available for vehicular
and human movements, was purposely closed. The gate No.B which
was exclusively for the use of the plaintiffs and his customers and where
iron poles were installed prior to purchase of shop by the plaintiffs to
prevent vehicular movements. However, the defendant No.1 and its
officers closed the gate No.B as well as removed metal poles and
thereby all vehicular are moving and passing through in front of said
premises which is used for running play school and nursery. The
defendant No.1 committed breach of the injunction order and the
plaintiff and small children between the age groups of 1.5 to 3 years to
undergo great hardship and irreparable loss and injury. Therefore, the
defendant No.1 be directed to remove all obstructions made in gates
No.A and B and remove the lock kept in gate No.A. It is further prayed
that the defendants committed breach of the interim order, hence their
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defence be struck down.
3] The defendant No.1 opposed Notice of Motion by filing
reply. The defendant No.1 denied contentions in Notice of Motion. It is
contended that the plaintiffs had previously taken out Contempt Notice
of Motion No.4701/2014 alleging contempt of orders dated 30/8/2007
and 29/1/2010, which was dismissed by this Court by order dated
19/3/2019. Appeal From Order (St.) No.20368 of 2019 filed by the
plaintiff is pending. The issues are framed. The Hon'ble High Court has
expedited suit but the plaintiffs failed to file affidavit of evidence in
spite of granting several opportunities and instead of filing affidavit the
plaintiffs have taken out this Notice of Motion.
4] It is further contended that earlier Notice of Motion seeking
similar types of relief bearing Notice of Motion No.2442/2010 has been
dismissed by this Court. Thereafter the plaintiffs had taken out Notice of
Motion No.1396/2015 which was dismissed by this Court on
23/12/2015. The order dated 23/12/2015 was challenged by the
plaintiffs before the Hon'ble High Court by way of filing Appeal From
Order No.221 of 2016 which was dismissed by the Hon'ble High Court.
Review Petition filed by the plaintiffs has also been dismissed.
Thereafter the plaintiffs filed another Notice of Motion No.1431/2016
but the plaintiff failed to argue said Notice of Motion. Hence this Court
directed to hear Notice of Motion with present suit. The plaintiffs are
enjoying injunction granted by this Court, therefore, Notice of Motion
deserves to be dismissed.
5] Points for determination alongwith findings thereon for the
reasons are as under :
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Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
6] Learned counsel for the plaintiffs submitted that the
defendant No.1 is a society. The plaintiff has purchased a shop and
running play school and nursery. This Court by order dated 30/8/2007
granted interim injunction and thereby restrained the defendant No.1
from causing any obstruction to the plaintiffs. Defendant No.1 is aware
of the injunction order, however defendant No.1 willfully removed iron
poles and thereby all the vehicles are moving and passing in front of the
play school and nursery. Therefore, the defendant No.1 be directed to
remove lock put on gate No.A and demolish wall fixed at gate No.B.
Advocate for the plaintiffs submitted that the plaintiffs have make out
prima facie case. Balance of convenience tilts in their favour and if
temporary injunction is refused the plaintiffs will suffer irreparable loss.
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Learned advocate for the plaintiff further submitted that the defendants
committed breach of the injunction order dated 30/8/2007, therefore,
their defence be struck down.
7] On the other hand, learned advocate for the defendant
No.1 submitted that Notice of Motion No.1396/2016 which was filed
for similar relief has been dismissed by this Court. Advocate for the
defendant No.1 further submitted that the plaintiff has challenged said
order before the Hon'ble High Court by filing Appeal From Order
however, the Hon'ble High Court dismissed appeal and confirmed order
of this Court. Learned advocate further submitted that in view of the
order dated 23/12/2015 passed in Notice of Motion No.1396/2015
present Notice of Motion is not maintainable as the principle of res
judicata is applicable to this Notice of Motion.
8] By way of Notice of Motion No. 1396/2015 the plaintiffs
had prayed that the defendant No.1/Society has closed gate No.A and B
and only gate No.C was kept open which is at a long distance from the
school premises and, therefore, direction may be given to defendant
No.1/Society to keep gate No.A for use of children. This Court
dismissed said Notice of Motion. By way of present Notice of Motion the
plaintiffs prayed that defendant No.1 be directed to open lock put on
gate No.A and to demolish wall fixed at gate No.B by giving directions.
Therefore, the prayer relating to removal of lock put to gate No.A is hit
by the principle of res judicata. It is well settled that the principle of res
judicata is attracted at the subsequent stage of the same proceeding.
The principle of res judicata can be invoked not only in a separate
subsequent proceeding but it can be invoked at the subsequent stage of
same suit. In the case in hand, this Court declined to grant relief of
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temporary junction in respect of gate No.A and said order of this Court
has been confirmed by the Hon'ble High Court. Therefore, relief of
temporary injunction in respect of removal of lock put at gate No.A is
hit by the principle of res judicata.
9] Advocate for the plaintiff submitted that the Corporation be
directed to remove wall fixed at gate No.B for free movement of the
plaintiff for use of said gate. It is not in dispute that gate No.C is open
and same is used by society members as well as students coming to play
school and nursery. Learned advocate for the defendant No.1 submitted
that there is only one security guard at gate No.C and, therefore, it is
not safe to keep open gates No.A and B. Security guard has been
appointed at gate No.C. The plaintiff has not shown as to how he would
suffer irreparable loss or injury if gate No.A and B are not opened. It is
admitted that at present, society members and children of play school
and nursery run by the plaintiffs are using gate No.C and there is also
small gate for the use of ingress and outgress of human being and
security guard is there and, therefore, it cannot be inferred that gate
No.C is not safe for children.
10] The plaintiffs prayed that defendant No.1 and/or its office
bearers committed breach of the order. However, there is vague
allegations as to breach of the interim order. The plaintiffs have not
shown, the manner in which, the defendant No.1 committed breach of
interim order. The plaintiffs have not given details as to breach of
interim order. There is nothing on record to show how the defendant
No.1 committed breach of interim order. Taking action for contempt is
a serious matter. The averment in Notice of Motion do not state any
particulars as to how and in what manner contempt has been
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committed. It does not spell how and why action of contempt would be
called for. Therefore, the prayer for strucking of the defence deserves to
be rejected.
11] The plaintiffs have not made out prima facie, for giving
directions to defendant No.1 to remove wall fixed in front of gate No.B.
The plaintiffs have not shown as to how they would suffer irreparable
loss if gate No.B is not opened. Balance of convenience does not tilt in
their favour and they will not suffer irreparable loss or injury if
temporary injunction is not granted in their favour. The plaintiffs and
children coming to play school and nursery of the plaintiffs are using
gate No.C. Thus, the plaintiffs are not entitled for grant of equitable
relief of injunction. Accordingly, I answer points No.1 to 3 in the
negative and in answer to point No.4 following order is passed :
O R D E R
Notice of Motion No.360/2020 is dismissed.
Date : 23/08/2022. ( S. H. SALUNKHE )
Judge City Civil Court,
Court Room No.4,
Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
06/09/2022 11:30 a.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
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Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 23/08/2022
ORDER Typed on 30/08/2022
ORDER signed by P.O. on 05/09/2022
ORDER uploaded on 06/09/2022
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