Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.312-18 in L.C.SUIT no.2766-17
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 312 OF 2018
(CNR no. MHCC010012732018)
IN
L.C. SUIT NO. 2766 OF 2017
(CNR no. MHCC010122522017)
Ms. Manu Kartikchandra Das ]..Plaintiff
Versus
The Brihan Mumbai Mahanagar Palika and 2 ors. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 11th September, 2018.
Mr. S. V. Deolekar, advocate for plaintiff.
Ms. Patil, advocate for defendant no. 1, 2.
None for defendant no. 3.
ORDER
1. The plaintiff, who claims to be tenant in the premises (suit
premises) located at the third floor / terrace of the building Ruby
Mansion (suit building), Rajaram Mohan Roy Road, Opposite Hinduja
College, Mumbai has prayed for temporary injunction for restraining
the defendant nos. 1 and 2 (defendants) from demolishing the notice
structure in furtherance of the notice dated 22.11.2017 issued under
Section 55 of the M. R. & T. P. Act.
2. The learned advocate for the plaintiff submitted that the
plaintiff's sister was original tenant in the suit premises. The original
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land lady built a toilet in 1984 on the terrace of the suit building for the
use of plaintiff and her sister by accepting Rs. 30000/. A shed was also
raised by using A.C. sheets in order to avoid leakage in the suit
premises. After the death of her sister the plaintiff is enjoying the suit
premises as tenant. However, the defendant no.3 who claims to be new
landlord has filed a false complaint with the defendants which resulted
in issuing the impugned notice.
3. On the other hand, the learned advocate for the defendants
submitted that on 24.03.2017 the defendants received a complaint from
landlord defendant no. 3 in respect of illegal construction of shed and
toilet raised at the terrace of the suit building. Therefore, by issuing
notice the officers inspected the site. The plaintiff could not submit any
documents to show authorization of the said structure and therefore,
the impugned notice was issued directing the plaintiff to remove
unauthorized development. According to her, the defendants have
adopted the due process of law.
4. On the premise of the rival submissions and the affidavits
filed by the respective parties, it is necessary to look into the documents
placed on record. Though, the defendant no. 3 appeared in the matter,
has not filed affidavit in reply and contested the motion.
5. It is prima facie undisputed that the plaintiff is occupying a
room on the third floor in capacity of the tenant. However, the plaintiff
has not produced any documents in order to show the authorization of
the notice structure or its existence prior to datum line. On the other
hand, it is the case of the plaintiff that the notice structure is raised in
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or about 1984 with the permission of the then landlady and on payment
of Rs.30,000/
6. The copy of impugned notice dated 22.11.2017 describes
the notice structure as follows:
“Unauthorized erection of temporary A.C. sheets shed and unauthorized
construction of temporary store room and toilet block in the open space
of the terrace of the building Ruby Mansion”.
7. During the course of submissions, the learned advocate for
the plaintiff stated that the plaintiff is ready to remove the shed,
however, the toilet block should be maintained till the disposal of suit
as the plaintiff is not having such facility elsewhere. On the other hand
the learned advocate for defendant no. 1 submitted that merely on the
ground that the plaintiff is facing inconvenience, an illegal structure can
not be protected by granting interim relief. She has placed reliance on
the ratio in the case of Seema Arshad Zahir vs. M.C.G.M. decided on
05.05.2006 by the Hon'ble Supreme Court (Coram : S.B. Sinha and R.V.
Raveendran JJ.) to the effect where the plaintiffs do not make out a
prima facie case for grant of an injunction and the documents produced
clearly show that the structures are unauthorized, the Court may not
grant temporary injunction merely on the ground of sympathy for
hardship.
8. Consequent upon these facts and circumstances the
plaintiff has failed to make out a prima facie case. The points of balance
of convenience, hardship and irreparable loss do not lie in favour of the
plaintiff. Therefore, the notice of motion deserves to be dismissed. It is
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expedient to direct the respective parties to bear their own costs of the
motion. Therefore, the following order is passed:
ORDER
1. The Notice of Motion no. 312 of 2018 is dismissed.
2. Parties to bear their own costs of the motion.
(M. S. Deshpande)
AdHoc Judge,
Date : 11.09.2018 City Civil Court, Mumbai.
Directly typed on dias computer : 11.09.2018
Checked by HHJ on : 12.09.2018
Signed by HHJ on : 12.09.2018
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5 NM no.312-18 in L.C.SUIT no.2766-17
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 12.09.2018 at 2.50 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
11/09/2018
JUDGMENT/ORDER signed by
P.O. on
12/09/2018
JUDGMENT/ORDER uploaded
on
12/09/2018
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