Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 367-19 in Suit No. 1217-08
CNR NO.MHCC0100096119
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 367 OF 2019
IN
L.C. SUIT NO. 1217 OF 2008
Fullmoon Cooperative Housing Society Ltd. …...Plaintiff
Versus
1. The Municipal Corporation of Greater Mumbai
2. Tarachand Amulakh Bhansali & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 12th April, 2019.
Appearance:
Adv. Mr. P.D. Gandhi for the plaintiff.
Adv. Mrs. Patil for defendant no. 1 /MCGM.
Adv. Mr. Yashpal Jain for defendant no. 2(a) to 2(h).
ORDER
1. The plaintiff had moved this notice of motion seeking injunction
directing the Plaintiff and Defendant no. 1 to remove the installation of
the fire brigade water pipe line, installed in the garage no. 6. The
defendant also had prayed for injunction directing the plaintiff to
remove the window. The plaintiff had prayed for injunction allowing
and permitting the defendant no. 2(a) to 2 (h) to put a rolling iron
shutter with lock and keys, for garage/unit no. 6.
The plaintiff also had prayed for injunction restraining the
plaintiff and its members from entering the suit premises.
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2 NM 367-19 in Suit No. 1217-08
2. Heard Learned Advocate for the defendant, Advocate for the
defendant corporation, and plaintiff.
The notice of motion was argued at length. It is pointed out by
the defendant that the defendant no. 2(a) to 2(h) being owners are
entitled to enjoy the rights on garage no. 6. It is stated that because of
the handed activities of the plaintiff, the suit premises are being
damaged. It is alleged that the plaintiff and its members have
encroached on the suit premises.
The Learned Advocate for the plaintiff on the other hand
contended that the notice of motion is devoid of merits. The plaintiff
disputed the title of the defendant on the disputed structure mentioned
in the notice of motion. The Learned Advocate argued that the relief
claimed are in form of mandatory injunction. Hence, the notice of
motion deserves to be dismissed.
The Learned Advocate for the MCGM argued that the relief claims
are in nature of mandatory injunction, those can not be entertained and
the notice of motion deserves to be dismissed.
3. Admittedly, it is one of the prayer of the defendant no. 2(a) to 2
(h) that they be permitted to put a rolling iron shutter on garage no. 6.
It goes to show that the structure which the defendant no. 2(a) to 2(h)
claim is open. The question of restraining its excess, therefore does not
arise.
The other relief claimed in the notice of motion are in form of
mandatory injunction. So also, the defendant no. 2(a) to 2(h) had not
filed any counter claim against the plaintiff. The defendant no. 2(a) to
2(h) cannot claim for substantial relief in form of mandatory injunction.
Admittedly, no counter claim is filed by the defendant. The defendant
no. 2(a) to 2(h) have appropriate to remedies to prosecute the reliefs
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3 NM 367-19 in Suit No. 1217-08
claim in the notice of motion.
The relief therefore can not be granted. The notice of
motion being devoid of merits and can not be entertained. In the result,
following order is passed:
ORDER
The Notice of Motion No. 367/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 12.04.2019 City Civil Court, Mumbai.
Dictated on : 12.04.2019
Transcribed on : 15.04.2019
Signed by HHJ on : 22.04.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 22.04.2019 at 5.50 pm.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
12.04.2019
JUDGMENT/ORDER signed by
P.O. on
22.04.2019
JUDGMENT/ORDER uploaded
on
22.04.2019
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