Order 1

Order Details: Notice of Motion
Pdf Text: NM 1034/19 in SU 622/19 .. 1 .. Order
CNR No. MHCC010026812019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1034 OF 2019
IN
SUIT NO. 622 OF 2019
Smt. Josephine Chandrakant Kadam ...Plaintiff.
V/s.
Savitri Budhappa Kanake ...Defendant.
Appearances:
Learned Adv. Mr. R.D. Thorat for plaintiffs.
Learned Adv. Mr. Chetan Jaiswal A/w Learned Adv. Ms. Amruta
Agrawal for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 18th April, 2019.
: ORAL ORDER :
1. The plaintiff has taken out this Notice of Motion and she has
requested to grant interim relief of temporary injunction, pending
hearing and disposal of the suit, restraining the defendant from carrying
out any further construction or completing the unauthorised
construction work being carried out by her at the suit site i.e. room
No.Sup/4dp/403/DH, Indrayani Cooperative housing Society, Sagar
Nagar, Upper Depot Pada, Vikhroli Park Site, Vikhroli(W), Mumbai.
2. The plaintiff's case may be stated as under :
The plaintiff is owner of the premises bearing room No.570, 1/1
(G +1), Indrayani Cooperative housing Society, Upper Depot Pada,
Sagar Nagar, Vikhroli Park Site, Vikhroli(W), Mumbai. This premises of
-- 1 of 9 --
NM 1034/19 in SU 622/19 .. 2 .. Order
the plaintiff is described in the plaint as said room. The defendant is
neighbour of the plaintiff and her house was adjoining to the house of
the plaintiff. The defendant's house is described in the prayer clause as
room No.Sup/4dp/403/DH, Indrayani Cooperative housing Society,
Sagar Nagar, Upper Depot Pada, Vikhroli Park Site, Vikhroli(W),
Mumbai and this property of the defendant is described in the plaint, as
suit site. The defendant has demolished the structure of her house and
illegally started reconstructing it, without obtaining prior permission
from the Mumbai Municipal Corporation. At the time of reconstruction,
the defendant has changed dimension of her room. She has appointed
one contractor for the suit site for the purpose of reconstruction. The
said contractor has been following the instructions of the defendant. He
has tried to obstruct the way of access of plaintiff's room by the illegal
construction at the suit site of the defendant. The plaintiff has requested
the defendant, not to obstruct plaintiff's way to their house, but the
defendant has started quarrel. The plaintiff has filed noncognizable
complaints to the police on 22.01.2019 and 28.01.2019, but the police
have not taken any cognizance. The defendant has erected the iron
angles at the suit site of defendant, which is clearly obstructing the way
and access through staircase to the room of the plaintiff. The staircase
is outside of the room of the plaintiff. Staircase of the plaintiff's house is
there, since prior to 1959. The plaintiff has also complained to the
Municipal Corporation vide complaint dated 28.01.2019 against the
defendant's aforesaid construction. The plaintiff is also relying on
photographs dated 28.01.2019 in respect of the disputed site. If the
defendant would complete the reconstruction work at the suit site, then,
the right of way and access to the room of the plaintiff will be affected
and that will cause grave loss to the rights of the plaintiff, which cannot
be compensated in terms of money. In such circumstances, the plaintiff
-- 2 of 9 --
NM 1034/19 in SU 622/19 .. 3 .. Order
has filed the instant suit for injunction restraining the defendant from
raising the construction at the suit site of the defendant. In the instant
Notice of Motion, interim relief is sought for as described herein earlier.
It is submitted by learned Advocate of plaintiff that plaintiff has prima
facie case and balance of convenience in her favour and if temporary
injunction is not granted, she would suffer irreparable loss.
3. The defendant has filed reply and opposed the Notice of Motion.
In the affidavit in reply, the defendant has submitted that she is owner
of the suit site i.e. 403, 1/5(ground + 1 floor), Indrayani Cooperative
housing Society, Vikhroli(W), Mumbai as described in the plaint. It is
submitted that there is cooperative housing society formed, which is
known as Indrayani Cooperative housing Society limited and in that
society the rooms of the plaintiff as well as the defendant are situated.
The said rooms are in the slum area and are covered under the
provisions of Maharashtra Slum Area (Improvement, Clearance &
Redevelopment) Act, 1971. The defendant has produced pitch holder
card issued to her in respect of her room under the said Act. The
defendant is residing at the suit site/room, since the year 1984. The
room of the defendant was in dilapidated condition, due to the old
construction of the room. Therefore, the defendant has hired contractor
to repair and reconstruct the said room. The repair work started on
17.01.2019 by taking oral consent from the cooperative housing
society. The plaintiff has raised objection before the cooperative
housing society alleging that their way of access to staircase was
obstructed due to the construction work of the defendant. The plaintiff's
were then given necessary assurance that their way to access to their
room will not be obstructed. Inspite of this, the plaintiffs have
-- 3 of 9 --
NM 1034/19 in SU 622/19 .. 4 .. Order
approached to this Court on 01.02.2019 and obtained an order for
maintaining the status quo on 02.02.2019. Due to this order, the
defendant is facing huge and irreparable loss as the contractor was
given time to complete the work and that time is going to expire. It is
further submitted that the defendant appeared before the Court on
02.02.2019. The defendant was represented by two advocates. The
defendant is illiterate person and was unable to understand what
exactly happened on 02.02.2019 in Court. However, later on, when she
approached to other advocate, it came to her knowledge that her
advocates had given consent for passing order of status quo, in respect
of the said room of the defendant and due to it, the construction work
of the defendant's room had stopped. On 03.02.2019, the plaintiff and
the defendant had approached to the said cooperative housing society
and the matter was resolved there and the plaintiffs had assured that
she would withdraw the instant suit, but the plaintiff has failed to
withdraw the suit. From 17.01.2019 till 02.02.2019, the repair work
was 60% completed and the access of staircase was already cleared. In
this regard, the defendant has relied on the copies of the photographs of
the suit site. As the cause of action, on which the suit is filed, has been
resolved by way of settlement before the said cooperative housing
society, nothing has remained in the present suit to be proceeded with.
Therefore, the suit has become infructuous and is liable to be dismissed.
The defendant has denied that dimension of her room has been
completely changed and the contractor of the defendant tried to
obstruct the way and access to the plaintiff's house, and staircase.
Therefore, the defendant has submitted that the plaintiff has no prima
facie case and the balance of convenience in her favour. Hence, it is
submitted that the Notice of Motion is liable to be dismissed.
-- 4 of 9 --
NM 1034/19 in SU 622/19 .. 5 .. Order
4. I have heard the arguments advanced by the learned advocates of
the parties. Considering the same, following points arise for my
determination on which I record my findings as under for the reasons to
follow :
POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case for granting the
interim relief as requested in the
instant Notice of Motion ?
In Negative
2. Whether the plaintiff has balance of
convenience in her favour ?
In Negative
3. Whether the plaintiff would suffer
irreparable loss, if temporary
injunction is not granted ?
In Negative
4. What order? The Notice of Motion is
dismissed.
: R E A S O N S :
AS TO POINT NO.1 TO 4 :
5. Admittedly, the rooms of the plaintiff and the defendant, are
neighbouring to each other. The plaintiff has alleged that the defendant
has demolished her room and started reconstructing it in the way that it
is causing obstruction to the access available to the ground plus one
storey room of the plaintiff. According to the learned Advocate of the
plaintiff, the defendant has not denied that the old structure of her
house has been demolished and reconstruction is being done. He has
submitted that the defendant has not come with the case that the
reconstruction work is being done with prior permission of the
Competent Authority from the Mumbai Municipal Corporation under
the relevant law. The learned Advocate of the plaintiff relied on the
photographs produced at page No.45 to 47A, which are dated
-- 5 of 9 --
NM 1034/19 in SU 622/19 .. 6 .. Order
28.01.2019, in which the staircase (in the form of fixed iron ladder) is
shown from ground to the upper room of plaintiff's house and adjoining
to the plaintiff's said house and the staircase, there is suit site i.e.
belonging to the defendant. On that suit site in the photographs, it is
shown that there are fixed iron angles vertically from ground to upward
and there on, there are fixed iron angles laid horizontally and there is
roof over it. Two to three horizontal angles have come across and are
hanging over the stair of the plaintiff's house, as shown in the
photographs. In one photograph, it is shown that adjoining to the
staircase of the plaintiff, brick wall is shown as under construction. The
learned Advocate of the plaintiff has submitted that in absence of any
construction permission, the defendant cannot raise such construction
much less to cause obstruction to the way of the plaintiff to her house
and, therefore, he has submitted that the plaintiff is entitled for interim
relief.
6. On the other hand, the learned Advocate of the defendant
Nos.1 and 2 has submitted that the plaintiff's rights are not at all
violated because the photographs produced by the defendant would
show that the staircase and house of the plaintiff's house can be easily
accessed to. The learned Advocate of the defendant has submitted that
it is merely repair work and, therefore, permission of the Municipal
Corporation is not required. He has submitted that the construction
work has been stopped due to the order of this Court to maintain status
quo and it is being caused injustice and irreparable injury to the
defendant, because defendant has no other house to reside.
-- 6 of 9 --
NM 1034/19 in SU 622/19 .. 7 .. Order
7. I have examined the aforesaid submissions, particularly the
photographs produced by both the parties. I have noted the
photographs produced by the plaintiff with the plaint. They are dated
28.01.2019. On 02.02.2019, this Court appears to have directed that
status quo be maintained at the suit site of the defendant. The
photographs produced by the defendant with her reply, show that the
brick wall work has already been done abutting to the staircase of the
plaintiff's house. These photographs show that there is no obstruction to
the access to this staircase of the plaintiff's house for the present, as per
these photographs. The angles which were shown hanging over this
staircase in the photographs dated 28.01.2019, produced by the
plaintiff, now do not appear to be hanging over the staircase of the
plaintiff. Therefore, presently the alleged construction or repair work of
the defendant's house is not violating the plaintiff's rights to have access
to her house. The photographs produced by the defendant show that
brick work appears to have been already completed. The plaintiff has
not denied that this is the work at the suit site of the defendant. If this is
considered, it can be said that major structural work appears to have
already been completed and, therefore, no purpose would be served, if
injunction is granted to restrain the alleged construction of the
defendant. The learned Advocate of the plaintiff has only submitted that
these photographs produced by the defendant, are not dated, but even
if they are not dated, there is no denial from the plaintiff's side that this
work has been completed as shown in these photographs, in respect of
the brick works. From these photographs, it can be clearly seen that the
staircase of the defendant's house has no obstruction from the side of
the defendant's house. No doubt, the defendant has not come with the
case that the alleged repair or reconstruction work is being done with
the permission of the Municipal Corporation. However, only because of
-- 7 of 9 --
NM 1034/19 in SU 622/19 .. 8 .. Order
this reason, the injunction asked for cannot be granted any more in
view that the major work of brick walls appears to have been done from
the outside, as per the photographs produced by the defendant and in
view that the said work does not appear to have been creating any
obstruction in the access of the plaintiff to the staircase and her house.
It is for the Municipal Corporation to decide whether the alleged
structure of the defendant's house at the suit site is authorised or not
and to take proper steps. In this regard, the Municipal Corporation shall
be at liberty to take appropriate action, as per law. As far as plaintiff is
concerned, prima facie it does not appear that the work of defendant's
house is violating the rights of the plaintiff, pertaining to her house.
7. For all the aforesaid reasons, I hold that the plaintiff has no
prima facie case and balance of convenience in her favour and,
therefore, I have recorded negative findings on point Nos.1 and 2. If,
injunction is not granted, the plaintiff would not suffer irreparable loss.
On the contrary, it would be the defendant, who would face much
inconvenience, if the remaining work is not done, so as to make the
house habitable. It appears that the houses of the plaintiff and the
defendant are in slum areas and in such circumstances, the defendant
would suffer more inconvenience and irreparable loss, if injunction is
granted in favour of the plaintiff. Therefore, I have recorded negative
findings on point No.3. In view of negative findings on point Nos.1,2
and 3, the Notice of Motion will have to be dismissed and, accordingly,
I have answered point No.4. Hence, I proceed to pass the following
order.
-- 8 of 9 --
NM 1034/19 in SU 622/19 .. 9 .. Order
: O R D E R :
The Notice of Motion No.1034 of 2019 is hereby
dismissed and it stands disposed of accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 18.04.2019. City Civil Court, Gr. Mumbai
Dictated on : 18.04.2019.
Transcribed on : 18.04.2019.
Signed on : 22.04.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22.04.2019, at 3.07 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 18.04.2019.
Judgment/order signed by P.O. on 22.04.2019.
Judgment/order uploaded on 22.04.2019.
-- 9 of 9 --