Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010010422020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.331 OF 2020
IN
L. C. SUIT NO.236 OF 2020
Mohammed Moosa Patel
Age : 47 years, Indian Inhabitant of Mumbai
Carrying on Business at Shop No.1, Situated at Rail
View, Near Railway Crossing, Opp. Sawan Bazar,
Chembur, Mumbai – 400 071 … PLAINTIFF
Versus
Mumbai Corporation of Greater Mumbai … DEFENDANT
APPEARANCES :
Mr. J. S. Yadav H/F Mr. B. P. Shukla, Advocate for Plaintiff.
Ms. Sangita Honmane, Advocate for Defendant/MCGM.
CORAM : AMIT ANANT LAULKAR, JUDGE
COURT ROOM NO.04
DATED : 03rd JULY, 2025
ORDER
1. Posing irk over apprehension of demolition followed by issuance
of notice vide Section 354 of MMC Act, at the instance of defendant, the
plaintiff has moved present notice of motion
inter-allia imploring for
temporary injunction vide Order 39 Rule 2 of the Code Of Civil Procedure,
1908.
2.
Succinct outline of the notice of motion states in volume that the
plaintiff is in use, occupation, and possession of a structure bearing Shop
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(2)
No.1, made of BM wall and AC sheet roof, situated at Plot No.1A, CTS
No.979, Rail view, near Railway crossing, Chembur (West) Mumbai – 400
071 (hereinafter referred to as ‘Suit premises’) since 2006 by way of
execution of tenancy agreement. The plaintiff is carrying on business of
selling juice at the suit premises in the name and style as “M/s. Patel Juice
Centre” and the defendant had issued shop and establishment certificate in
his favour. Post execution of tenancy agreement, the plaintiff is accepted as a
tenant and he is regularly paying rent to the landlord. Shortly, the plaintiff
had obtained light, water, and telephone connection at the suit premises with
a request to the landlord. Thus, the plaintiff is using and enjoying the suit
premises so also earning his livelihood therein. It is further urged that, the
building known as Rail view building is consisting of ground floor plus three
upper floors and the suit premises is situated in the compound of the said
building touching the road which is far away from the original building and
the same has been reflected in City survey plan. In the backdrop, the
defendant authority had issued notice vide section 354 of the MMC Act
dated 12.06.2019 thereby mentioning that the original building is in
dilapidated condition and the same is required to be pulled down. The suit
premises is not situated in the original building and the same is located in
the open space. It is outside the main building to which the notice has been
cited. At no point of time the plaintiff has been cited with notice by the
defendant as regard suit premises is concerned. It is only the landlord in
collusion with the defendant authorities are playing ill-game with oblique
intention to evict the plaintiff from the suit premises. There is ample
apprehension that the defendant without following due process of law would
demolish the suit premises which would cause irreparable loss to the
plaintiff. On all above counts plaintiff crave for conferring interim protection
and oblige.
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Order (3) Notice of Motion No.331/2020
In L.C. Suit No.236/2020
3. In response to service affidavit in support of Notice of Motion,
the defendant authority caused appearance before this court and raised
potent objection for conferring any relief upon the plaintiff and prayed for
rejection of the notice of motion at the threshold. Apparently, they moved
their affidavit in support to oppose the interim relief and tendered their short
reply cum affidavit below Exh.02.
4. Eventually, having considered submissions made across the bar
by the parties, vide order dated 21.01.2020, my learned predecessor
conferred
ad-interim relief in favour of the plaintiff and thus, defendant
authority was directed to restore electricity and water supply in the suit
premises immediately.
5. When the notice of motion was kept for final reply, the
defendant did not opt to tender any separate reply to the Notice of Motion.
Finally, they opt to treat their aforesaid short reply cum affidavit as
conclusive reply to present NM.
6. Heard both sides. I have pondered over entire record minutely.
7. In view of rival submission following points arose for consideration,
my findings thereon are as follows:
Sr.No. POINTS FINDINGS
1. In whose favour prima facia case lies? Plaintiff
2. In whose favour balance of convenience lies? Plaintiff
3. To whom irreparable loss would cause? Plaintiff
4. What order? .. As per Final
Order.
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(4)
REASONS
8. All above points are interlinked therefore they are taken up
together for consideration and due deliberation.
9. Having pore over entire record placed in support of instant
Notice of Motion, it is crystalline that the defendant has issued notice under
Section 354 of MMC Act, to the owner of the building known as
Rail View
Building situated at Plot No.1A, CTS No.979, Rail view, near Railway
crossing, Chembur (West), Mumbai – 400 071. It is mentioned in the notice
that said building is in dilapidated condition which is required to be pulled
down. Thus, it is not the case that any specific and separate cum distinct
notice under section 354 of the MMC Act has been independently cited to the
plaintiff as regard suit premises is concerned. It is water clear from record
that the suit premises falls in the compound of the main building and it is
situated away from the original building and the same factual scenario is
reflected in City Survey plan II. The same is annexed at Annexure B to the
plaint. More and above, the officers of the defendant has also submitted a list
of certified tenants/ occupants who are occupying premises in the original
building which clearly reflect that the name of plaintiff is not included in the
list of certified tenants as the suit premises is not situated in the original
building. Copy of notice vide section 354 MMC Act, dated 12.06.2019 issued
to the owner which suggest that main building is in dilapidated condition but
it is not the case so far with the suit premises rather there is structural report
placed on the record by the defendant which transpires condition of
aforesaid building at para-16 saying that
“structure is surrounded by the
stalls inside compound”. It is duly supported by letter dated 14.01.2019
signed by designated officer of the defendant.
The list of tenants noted
hereinbefore do suggest that the name of plaintiff is at serial No.15 showing
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Order (5) Notice of Motion No.331/2020
In L.C. Suit No.236/2020
carpet area as Nil with a remark that said stalls inclusive of suit premises is
situated in compulsory open space and hence, not included in area
certification.
10. Conjoint perusal of aforesaid documents speaks into volume that
the suit premises is not the part of the notice structure premises so also it is
not in dilapidated condition categorizing it as C-1 building. Rather, suit
premises is at certain distance from the Rail View building to which the
defendant has cited the subject notice. Suit premises lies in the open
premises of the said building and therefore any act on the part of the
defendant thereby affecting structure of the suit premises without following
any due process of law would render threat to the legal rights of the plaintiff
as regards suit premises is concerned. Certainly, there is greater
apprehension to the plaintiff regarding demolition and cutting of electricity
cum water supply to the suit premises. There is valid base to said
apprehension. Prima facie, the act on the part of defendant for cutting
electricity and water supply of stall which is in possession of plaintiff, distinct
than the Rail View building, is highly objectionable. Thus, there appears
substance in the stance posed by the plaintiff thereby raising prima facie case
in his favour. The balance of convenience too lies in his favour and if the
interim injection is not granted it would comparatively cause greater
hardship to the plaintiff than the defendant. Certainly, I answer all issues in
favour of the plaintiff and confer interim protection in his favour which is
more specifically detailed in the application. To sum up, I believe, instant
notice of motion deserves approval.
11.
Ergo the order :
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(6)
ORDER
1. Notice of Motion No.331 of 2020 is made absolute in terms of its
prayer clause ‘a’ and ‘b’ till disposal of the suit.
2. Notice of Motion No.331 of 2020 is, accordingly, disposed of.
(Amit Anant Laulkar)
Judge,
Date : 03/07/2025 City Civil Court, Mumbai.
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Order (7) Notice of Motion No.331/2020
In L.C. Suit No.236/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
03.07.2025 5.18 p.m. Shilpa P. Pawar
Stenographer - Grade IUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. Amit A. Laulkar
Court Room No. 4.
Date of Pronouncement of ORDER 03.07.2025
ORDER signed by P. O. on 03.07.2025
ORDER uploaded on 03.07.2025
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