Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.309/2018 in Suit No.2880/2016
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.309 OF 2018
(MH CCO10012352018)
IN
SUIT NO. 2880 OF 2016
(MH CCO10129832016)
Mr. Ishtiyaq Ahmed Shaikh ]
M/s. Accurate Engineering Tuner ]
Adult, aged about 42 years, ]
Running lath machine in Gala No.1, ]
Plot No.162, Sundardas Mill Compound, ]
Barriester Nath Pai Marg, Reay Road, ]
Mazgaon, Mumbai 400 010. ].. Plaintiff.
V/s.
Maroof Ahmed Khan ]
Adult, Aged about 60 years, ]
4/132, Reay Road West, ]
Mumbai – 400 010 ]..Defendant
Advocate Mr. Kudalkar for defendant.
Advocate Mr. B.P. Shukla for the plaintiff.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 24th JULY 2018
ORAL ORDER
This Notice of Motion has been taken out by the defendant
for directing the plaintiff to pay the defendant sum of Rs.40,000/ or at
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any rate this Court may deem fit and proper, towards compensation for
unlawful use, occupation and possession of the suit premises by the
plaintiff or in the alternate, the plaintiff be directed to deposit the same
in this Court.
2 The defendant has filed affidavit in support of notice of
motion. It is averred that the plaintiff has filed false and frivolous suit
for declaration and injunction. He has expressly disclosed the unlawful
status of the plaintiff. It is averred that he is availing the necessary
legal steps to evict the plaintiff from the suit premises, in as much as, he
was his casual labour. The plaintiff has been enjoying the premises, and
failing to his monthly income, arriving out of the said business, which
he would tender him during his employment as casual labour. He is
suffering from the monetary loss, which approximately reaches in the
region of Rs.40,000/ per month on account of unlawful occupation and
enjoyment from the suit premises by the plaintiff. Thus, prayed for
allowing notice of motion.
3 The plaintiff has filed affidavit in reply and contended that
the present notice of motion is not maintainable and permissible under
the provisions of law. It is contended that he has filed the suit for
restraining the defendant from dispossessing him from his suit shop
premises illegally, highhandedly forcibly without following due process
of law. The defendant is not having any kind of locus standi in respect
of his suit shop premises and the defendant is not entitled to demand
any such illegal money. There is no relationship between the plaintiff
and the defendant. If the defendant is having any grievance against the
plaintiff, the defendant is having an opportunity to adopt appropriate
legal proceedings against him in the Court of law. The plaintiff is in
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settle possession of the suit premises since the year 2008 and he is
running his business of lath machine without any interruption of the
defendant since last several years. The present notice of motion taken
out by the defendant is nothing else, but a tactic to extort illegal money
from the plaintiff from his lawful business in which he is not having any
kind of legal right, title or interest. Thus, prayed for dismissal of notice
of motion with costs.
4 The defendant has filed affidavit of rejoinder and denied
the contentions of the plaintiff in affidavit of reply. He has filed the
copy of application tendered by the plaintiff to the BEST and copy of
application submitted by the defendant to BMC under RTI Act and also
produced document for cancellation of licence of the plaintiff,
agreement and order passed by the Metropolitan Magistrate Court.
5 Heard the learned advocate for the defendant and the
learned advocate for the plaintiff at length. Perused Record and
Proceedings of the suit. The plaintiff has filed this suit for restraining
the defendant permanently from dispossessing the plaintiff from the suit
premises without following due process of law and also for seeking
relief of permanent injunction for restraining the defendant from
causing any sort of obstruction to his peaceful possession over the suit
property without following due process of law.
6 It appears that the defendant appeared in the suit and filed
written statement, wherein the defendant has specifically stated that the
plaintiff is neither a tenant nor trespasser with respect to the suit
property, but a casual worker and servant of the defendant. He is the
lathe machine operator. From this notice of motion of the defendant, it
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prima facie reveals that the defendant has accepted the possession of
the plaintiff over the suit premises and for that purpose, the defendant
is asking sum of Rs.40,000/ from the plaintiff to pay to him as a
compensation.
7 Basically, it is the suit for following due process of law at
the hands of the defendant. The defendant in his affidavit in support of
notice of motion has specifically stated that he is availing the necessary
legal steps to evict the plaintiff from the suit premises. I would like to
mention that while filing written statement, the defendant has not filed
counter claim to seek any relief from the Court as alleged in this Notice
of Motion.
8 It is necessary for the defendant to file separate suit against
the plaintiff, for seeking relief of monetary benefit by way of
compensation after paying necessary Court fees for the said relief.
Even, there is no counter claim of the defendant in this suit. Therefore,
the present notice of motion, that too, without counter claim is not
maintainable. The separate remedy is available to the defendant. If the
defendant wants to recover amount from the plaintiff for use of the suit
premises illegally as alleged and if he is entitled for the same, then it is
for the defendant to file suit for the same or even in the suit for
recovery of possession, he can pray for relief of compensation on
payment of necessary court fees.
9 Thus, in the facts and circumstances, the present notice of
motion is not maintainable and liable to be dismissed with costs. With
this, I proceed to pass the following order:
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ORDER
Notice of Motion No. 309 of 2018 is hereby dismissed with
costs.
2 Notice of Motion No.309 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 24/07/2018. City Civil Court,
Gr. Bombay.
Dictated on : 24/07/2018
Transcribed on : 24/07/2018
Signed on : 27/07/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30/07/2018 At 11.30 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.27)
Date of pronouncement of
Judgment/Order
24/07/2018
Judgment/Order signed by P.O. on 27/07/2018
Judgment/Order uploaded on 30/07/2018
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