Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 337-19 in S.C.SUIT no.316-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 337 OF 2019
(CNR no. MHCC01-000838-2019)
IN
SHORT CAUSE SUIT NO. 316 OF 2019
(CNR no. MHCC01-000695-2019)
Mr. Ebraheem Haji Jetha
Aged: 49 years, Occ : Business
having address at 134, Bhatia Building,
C.S. No.275, Malabar & Cumballa Hill Division,
Walkeshwar Road, Mumbai-400036.
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Plaintiff
Versus
Raja Nava Developers Pvt. Ltd.
A Company incorporated under the Companies Act,
1956 having its address at Behram Mahal, 144,
2nd Floor, Next to Edward Cinema, 534,
Kalbadevi Road, Mumbai – 400002.
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Defendant
Appearances:-
Ld. Advocate Mr. Ashok R. Pande for the Plaintiff.
Ld. Advocate Mr. P. D. Gandhy for Defendant
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 28th February, 2020.
O R A L O R D E R
1. This is an application by Notice of Motion under
O.XXXIX R.1 of The Code of Civil Procedure, 1908.
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2 NM no. 337-19 in S.C.SUIT no.316-19
2. The plaintiff’s case in nutshell is as under :-
The defendant is creating nuisance and annoyance to the
plaintiff and his property which consists of the building having
Masjid on the first floor (hereinafter “ plaintiff’s premises”). The
Iron Gate was fixed at the time of 1992 communal riots. It has also
benefited the property of defendant by avoiding entry of trespassers
on his property. This entrance gate is in existence since 1992.
There is a passage between C.S. No.275 and 276. The
defendant has no right over the passage. The temporary injunction is
running against the defendant in Short Cause Suit No. 1093 of 2018
in respect of the same passage and the defendant has no right over
Room No.16, Ground Floor, in the building (hereinafter “Suit
Premises”). therefore, the Notice of Motion be granted.
3. The defendant has filed affidavit in reply contending
inter alia as under:-
The defendant is a company incorporated under The
Companies Act, 1956 and engaged in the business of development
and re-development of the buildings in Mumbai. The defendant is
owner of property bearing C.S. No.276 of Malabar & Cumballa Hill
Division, 138, Walkeshwar Road, Mumbai 40006., admeasuring
409.68 sq. meters upon which a building known as Raja Nava
(formerly known as ‘Roop Leela’) is situated consisting of ground
plus two floors comprising of 22 rooms (hereinafter “Suit
Property”). The defendant purchased the suit property by by way of
Deed of Conveyance dated 20.05.1992.
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3 NM no. 337-19 in S.C.SUIT no.316-19
The defendant filed R.A.E. Suit No.1385 of 2005 in the
Court of Small Causes at Bombay, against one Gulam Hussein (since
deceased), who was a tenant in respect of Suit Premises.
The land bearing C.S. No.275 belonging to the plaintiff
is adjoining to the suit property. He purchased the same by Deed of
Conveyance dated 26.06.2009.
After getting decree in R.A.E. Suit No.1385 of 2005,
when the defendant attempted to execute the decree, the plaintiff to
aid the legal heirs of Gulam Hussein prevented the defendant from
executing the decree by keeping the passage locked. The plaintiff is
obstructing the defendant’s access to suit premises by keeping it
locked at all times. There is no other access to the suit premises
save and except the passage. This easement of necessity was enjoyed
by late Gulam Hussein earlier and defendant is now entitled to
enjoy the same. Therefore, the defendant has prayed to dismiss the
notice of motion.
4. Considering rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:-
Sr.
No. POINTS FINDINGS
1. Whether plaintiff has proved the
defendant has no easementary
right over the passage between
C.S. No.275 and 276?
In the negative.
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4 NM no. 337-19 in S.C.SUIT no.316-19
Sr.
No.
POINTS FINDINGS
2. Whether plaintiff proves
prima
facie case
, balance of convenience
and irreparable loss in its favour?
In the negative.
3. What order ? Notice of Motion is
dismissed
R E A S O N S
AS TO POINTS NOS. 1 & 2:-
5. The plaintiff is not disputing existence of the passage
between C.S. Nos.275 and 276. The plaintiff claims thet there is no
Room having No.16 (Suit Premises) as alleged by the defendant.
6. The plaintiff is denying existence of the suit premises.
However, there is a decree of the Court of Small Causes Court,
Mumbai dated 11.09.2017. The defendant filed Execution Application
No.34 of 2018 to execute the decree against the tenant in suit
premises. In that backdrop, the objection to existence of suit
premises is not sustainable. Therefore, the plaintiff is not entitled for
the relief of temporary injunction as prayed. The balance of
convenience is in favour of the defendant and he will suffer
irreparable loss if injunction is not granted in his favour. Hence,
points no.1 and 2 are answered in the negative and following order:
ORDER
1. Notice of Motion No. 337 of 2019 is dismissed.
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5 NM no. 337-19 in S.C.SUIT no.316-19
2. Costs in cause.
sd/-
(C. V. Marathe)
Judge,
Date : 28.02.2020. City Civil Court, Gr. Mumbai.
Dictated on : 28.02.2020
Transcribed on : 02.03.2020
Signed by HHJ on : 09.03.2020
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6 NM no. 337-19 in S.C.SUIT no.316-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.03.2020 at 10.42 a.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
28/02/2020
JUDGMENT/ORDER signed by
P.O. on
09/03/2020
JUDGMENT/ORDER uploaded
on
11/03/2020
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