Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.302/18 (L.C.S. No.2539/17)
MHCC010012302018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.302 OF 2018
IN
LONG CAUSE SUIT No.2539/2017
Riyaz Ahmed Nabidas … Plaintiff
- Versus -
The Municipal Corporation
of Greater Mumbai ... Defendant
Appearance :-
Mr. Akash Singh h/f. Mr. Asit Singh, Advocates for plaintiff.
Mr. Botlawar, Advocate for defendant/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 06/12/2024.
O R D E R
. This is suit for injunction restraining defendant B. M. C. or
anybody through it from dispossessing the plaintiff from suit premises
bearing flat No.704, building No.11/A, more particularly described in
paragraph No.3 of the plaint (in short 'suit structure') and the plaintiff
has taken out this Notice of Motion under Order-XXXIX Rule-1 of The
Code of Civil Procedure (in short the C. P. C.) for temporary injunction.
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2] Brief facts can be summarized as follows :-
The plaintiff was having structure No.10 (E) at Senapati
Bapat Marg, Dadar which was in dilapidated and dangerous condition
and as per directions of Assistant Municipal Commissioner, G/South
Ward the plaintiff vacated said structure and has been allotted suit
premises. The allotment letter has been issued to the plaintiff. The
plaintiff obtained electricity connection, ration card and Aadhaar Cad at
the address of suit structure.
3] It is further stated that the plaintiff is allottee of suit
structure and is in its possession since the date of possession. However,
on 9/11/2017 officer of the B. M. C. threatened to vacate suit structure
saying that suit premises is not allotted to the plaintiff and he in its
illegal possession. Therefore, under the apprehension of dispossession
without any notice or following due process of law by the B. M. C., the
plaintiff filed present suit and took out present Notice of Motion
restraining defendant B. M. C. from dispossessing him without
following due process of law.
4] The suit is of 2018 i.e. five years old and in spite of
sufficient opportunity the B. M. C. did not file reply to Notice of Motion.
Hence Notice of Motion is heard without reply.
5] Points for determination alongwith findings thereon for the
reasons are as under :-
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.
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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 advocate for the plaintiff submitted that earlier the
plaintiff was staying at Dadar and defendant B. M. C. issued notice in
2004 to the plaintiff. The plaintiff submitted relevant documents
showing existence of structure and after verification the B. M. C.
allotted suit premises to the plaintiff as per possession letter exhibit-A to
the plaint. It is further submitted that electricity bill, Aadhaar card and
ration card prove plaintiff's possession over suit premises since 2008.
The plaintiff is in settled possession of suit structure. However, officer of
the B. M. C. without issuing any notice and giving opportunity of
hearing, threatened to evict the plaintiff. Defendant B. M. C. has to
follow due process of law and the plaintiff cannot be evicted without
following due process, therefore, the plaintiff is entitled for temporary
injunction as prayed.
7]
Per contra, learned advocate for the B. M. C. submitted that
the documents submitted by the plaintiff i.e. possession letter and
notice of draw for allotment of structure are not issued by the B. M. C.
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The documents submitted by the plaintiff are false and fabricated. It is
further submitted that neither the plaintiff has produced documents in
respect of old structure at Dadar nor produced copy of Annexure-II
showing that he is eligible for alternate accommodation. It is submitted
that the plaintiff has not come to the Court with clear hands and asking
equitable relief on the basis of false and fabricated documents,
therefore, he is not entitled for relief of injunction.
7] I have given thoughtful consideration to the submissions
made by learned advocates for the parties.
8] The plaintiff is seeking injunction restraining defendant
B.M.C. from dispossessing him without following due process of law. It
is case of the plaintiff that suit premises has been allotted by the B.M.C.
and he is in lawful possession of suit structure. In support of this
contention the plaintiff relied on photocopy of notice of lucky draw and
allotment letter, allegedly issued by the B. M. C. dated 22/10/2008.
Learned advocate for defendant B. M. C. drew my attention towards the
remarks of Assistant Engineer, G/South ward alongwith photocopy of
inward/outward register of the B. M C., G/South ward filed alongwith
short affidavit and submitted that the outward number mentioned in
alleged lucky draw notice and allotment letter does not find place in
inward/outward register of the B. M. C. On perusal of remarks of
Assistant Engineer, Maintenance, G/South dated 12/12/2017, it
appears that outward numbers mentioned on lucky draw notice and
allotment letter are not in respect of alleged lucky draw notice and
allotment letter relied by the plaintiff. Learned advocate for the B. M. C.
further pointed out that in the notice of lucky draw date of lucky draw
is mentioned as 10/10/2008 however, in the allotment letter date of
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lucky draw is mentioned as 16/10/2008, this shows that the documents
are false and fabricated. On perusal of documents relied by the plaintiff,
I am of the opinion that they are not genuine. The plaintiff has neither
produced documents relating to old structure at Dadar, nor copy of
Annexure-II to show that he is held eligible for alternate
accommodation by defendant B. M. C. Thus, I hold that the plaintiff has
failed to prove his lawful possession over suit premises. It appears that
the plaintiff is a rank trespasser over public property hence he is not
entitled for equitable relief of temporary injunction. In the
circumstances, I hold that the plaintiff has not made out
prima facie for
grant of temporary injunction. Accordingly, I answer points No.1 to 3 in
the negative and in answer to point No.4 pass following order :-
O R D E R
Notice of Motion is dismissed.
Date : 06/12/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
21/12/2024 03:05 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 06/12/2024
ORDER Typed on 18/12/2024
ORDER signed by P. O. on 20/12/2024
ORDER uploaded on 21/12/2024
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