Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No. 395/2019
in L.C. Suit No. 237/2019.
MHCC010010112019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 395 OF 2019.
IN
L.C. SUIT NO. 237 OF 2019.
Harshal Mangesh Belpatre……..….......…. ….. PLAINTIFF.
V/s.
MCGM………............................................ ….. DEFENDANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 06th June, 2022.
APPEARANCES :
Mr. Mukesh S. Dubey, Ld. Advocate for the Plaintiff.
Adv. Sunil C. Khandagale, Ld. Advocate for Defendants.
*****
01. The plaintiff has taken out this Notice of Motion (for short
the ‘NM’’) to restrain the defendant from enforcing the Speaking Order
dtd. 22.01.2019 as against the suit premises, duly described in para 1 of
the plaint. Perused the NM, his accompanying affidavit and documents
relied upon annexed as per the plaint compilation. Also gone through
the reply-cum-written statement of the defendant (Exhibit 2) and
documents of his reliance. Heard both the sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in his favour ? ….............................. …No.
(ii). Whether balance of convenience lies in
favour of the plaintiff ? …...................... ... No.
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2 Notice of Motion No. 395/2019
in L.C. Suit No. 237/2019.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted ?.................... … No.
(iv). What Order ? …..............….................... …As per final Order.
REASONS FOR THE FINDINGS
AS TO POINT NOS. 1 TO 3.
03. As these points are inter-connected, to maintain the brevity,
I am taking the same for joint discussions. Since inception, the plaintiff
came with a specific case that he is in use, occupation and possession of
the suit premises for his residence. It was acquired by his parents. He is
also having the documents like Aadhar Card, Pan Card, the letter of ‘No
Objection’ from ‘M/s. Gadge Maharaj Trust’, photographs etc. pertaining
to the suit premises. It is situated in slum area. It is old one. However,
on the complaint of some interested persons, the defendant issued the
notice dtd. 14.01.2018, U/s. 354-A of the MMC Act and during
pendency of the suit, passed Speaking Order on 22.01.2019. However,
while doing so, they did not consider his reply and documents,
submitted in pursuance to the notice. The said notice and Order are
vague and cyclostyle. They are also bad in law. The plaintiff never
carried any unauthorized structure on the suit premises. However, the
defendant is bent upon to proceed against the same without following
the due procedure of law. In support of his contentions, at this interim
stage, he relied upon the documents - sketch, Aadhar card, PAN card,
No Objection letter dtd. 14.01.2019, issued by the said Trust,
photographs along-with copy of suit notice and Speaking Order. The
defendant objected this NM and contended that during his routine
inspection of dtd. 12.01.2019, the said unauthorized structure at the
suit premises was so observed. It was ‘in progress’. Accordingly, the
owner /occupier was called upon to explain it. The plaintiff replied the
notice on 16.01.2019 and after considering his reply and documents,
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3 Notice of Motion No. 395/2019
in L.C. Suit No. 237/2019.
the reasoned Order of dtd. 22.01.2019 came to be passed. The plaintiff
failed to comply with the notice. Further, the suit is bad for want of
notice and this Court has no jurisdiction to try and entertain this suit.
The plaintiff has not come before the Court with clean hands and equity
does not lie in his favor. In support of his contentions, also he relied
upon the copies of the inspection report, photographs, the notice, the
Speaking Order, etc.
04. Having considering the rival submissions, it is worth
notable that by filing this suit, the plaintiff assailed the notice of dtd.
14.01.2019 and the consequential Order dtd. 22.01.2019 on the
grounds that the suit premises is situated in the slum area. He is also
having various documents and the said No Objection letter from the
concerned trust. However, the perusal of the record nowhere reveals
any iota of material to assume the fact that the suit premises is situated
in the slum area, as is alleged. That apart, nowhere, the plaintiff could
justify the propriety of the said trust to issue such ‘No Objection Letter’
in his favour. It was required specially when this record is silent to infer
the authority of the said trust to allow the plaintiff to possess this suit
premises. Simultaneously, it is nowhere the plaintiff’s case that the
notice structure is legal and authorized one. Nor, he could file any
permission or sanctioned plan, issued in his favour, to that effect.
05. Further, the documents, relied upon by the defendant,
show that on 12.01.2019 i.e. the day of inspection, he observed the
said work of construction was ‘in progress’. As such, he carried this
inspection and took the photographs. Consequently, the notice was
issued and the same was replied by the plaintiff. Moreover, after
considering this reply and documents, the defendant passed the
Speaking Order on 22.01.2019. At this juncture, it would not be out of
place to mention that while passing of this Order, he considered the
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4 Notice of Motion No. 395/2019
in L.C. Suit No. 237/2019.
documents like the said ‘No Objection’ letter, issued by the said Trust,
Aadhar card and his PAN card. However, as the said documents fell
short to conclude the authenticity of the suit premises, the same were
discarded. Obviously, in absence of a permission or sanctioned map to
carry the notice structure, the plaintiff can not claim for his exemption
to substantiate the legality of the suit premises only by challenging the
notice. Indeed, he was required to aver positively on the existence of
such permission or sanctioned map in his favor, wherein he failed. In
the circumstances, I am of the opinion that at this stage of the matter,
he could not manifest any
prima facie case in his favour nor the balance
of convenience tilts in his side. At the same time, he could not show that
non-granting of this interim relief would cause irreparable loss to him.
Needless to say that merely on the ground of sympathy, he is not
entitled for such equitable reliefs. Hence, I answered point Nos.1 to 3 in
the negative and in answer to point No. 4, I pass the following Order:
-: O R D E R :-
(i). Notice of Motion No. 395/2019 is stands dismissed.
(ii). Notice of Motion No. 395/2019, accordingly, stands
disposed off.
Sd/-
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 06.06.2022. City Civil Court, Mumbai.
Dictated on : 06.06.2022.
Transcribed on : 06.06.2022.
Signed on : 07.06.2022.
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5 Notice of Motion No. 395/2019
in L.C. Suit No. 237/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
at 08.06.2022 p.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 06.06.2022
Judgment/Order signed by P.O. on 06.06.2022
Judgment/Order uploaded on 08.06.2022
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