Interim Order 1

Order Details: Notice of Motion
Pdf Text: NM 555/18 in SU 258/18 .. 1 .. Order
CNR No. MHCC010021042018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 555 OF 2018
IN
SUIT NO. 258 OF 2018
Mohammad Gulam Rasool ...Plaintiff.
V/s.
Zia Apartments Cooperative Housing Society Ltd. ...Defendant.
Appearances:
Ld. Adv. Mr. Khan Javed Akhtar for plaintiff.
Ld. Adv. Ms. J.P. Thakkar for all defendant.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 11th December, 2018.
: ORAL ORDER :
1. The plaintiff has taken out this Notice of Motion and has
requested to grant interim relief of temporary injunction pending the
hearing and disposal of the suit restraining the defendant from
dispossessing the plaintiff or in any manner creating any hitch,
hindrances, impediments, obstacles or obstruction in the peaceful use,
occupation and possession of the plaintiff in respect of the suit godown
bearing godown No.2, admeasuring about 1800 sq. ft, situated at the
basement of Zia Shopping Centre, 264, Bellasis Road, Mumbai– 8. The
plaintiff has also requested to appoint Court Commissioner directing the
Court Commissioner to visit the suit premises to make inventory of
articles, goods and things lying therein, to take out photographs
showing the existing position therein and to submit his report.
2. The defendant has filed reply and has opposed the said Notice of
Motion.
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3. I have heard the arguments advanced by the learned Advocate of
the plaintiff as well as learned Advocate of the defendant. I have also
perused the pleadings of the parties alongwith their respective
documents. Both the learned Advocates of the parties have referred to
the documents and pleadings of their respective clients. The learned
Advocate of the plaintiff has submitted that the documents of registered
sale agreement dated 12.09.2006, copy of share certificate issued by the
defendant, copies of the maintenance receipts, copy of inspection
extract, copy of assessment bill, copy of electric bill, copy of telephone
bill, correspondence between the parties show that the defendant is co
operative housing society in respect of the building called Zia Shopping
Centre, 264, Bellasis Road, Mumbai and the plaintiff owns the suit
premises i.e. suit godown No.2, admeasuring about 1800 sq. ft on the
basement of the said shopping centre. It is submitted by the learned
Advocate of the plaintiff that the defendant cannot illegally dispossess
plaintiff from the suit premises. It is submitted that the defendant is
making efforts to dispossess the plaintiff. The plaintiff has therefore,
prima facie, case and balance of convenience in his favour and if,
temporary injunction is not granted, the plaintiff would suffer
irreparable loss.
4. On the other hand, the learned Advocate of the defendant has
submitted that the case of the defendant is that the plaintiff has got the
suit premises from the builder illegally and that the plaintiff has
changed the user of the suit premises. It is also submitted that there is
sufficient material to infer that the plaintiff has been using the suit
premises by violating various security rules and laws and thereby,
causing danger to the life of the human beings residing and occupying
the premises in the said building. The learned Advocate of the
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defendant has also submitted that the defendant has made various
complaints to the Municipal Corporation and Fire Authorities about the
illegal use of the suit premises by the plaintiff. It is submitted that the
authorities of the Municipal Corporation have taken necessary steps
against the plaintiff. Therefore, it is submitted that the plaintiff is not
entitled for any protection. The learned Advocate of the defendant has
produced the photographs of the suit premises. She has also submitted
that incident of fire explosion had also taken place in the suit premises
because of violation of various security provisions at the hands of the
plaintiff. Therefore, it is submitted that the plaintiff is not entitled for
any relief and, hence, the Notice of Motion is liable to be dismissed.
5. Following points arise for 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 Affirmative
2. Whether the plaintiff has balance of
convenience in his favour ?
In Affirmative
3. Whether the plaintiff would suffer
irreparable loss, if temporary
injunction is not granted ?
In Affirmative
4 Whether Court Commissioner is
required to be appointed ?
In Negative
5. What order? The Notice of Motion is
partly allowed in terms of
the operative order being
passed herein below.
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: R E A S O N S :
AS TO POINT NO.1 TO 5 :
6. From the pleadings and documents produced by the plaintiff,
prima facie, it appears that the plaintiff had purchased the suit premises
by a registered agreement of sale dated 12.09.2006. The defendant has
been accepting the plaintiff as its member. The defendant was also
accepting maintenance charges from the plaintiff. The electric bills and
other documents as such, prima facie, produced by the plaintiff show
that the plaintiff has physical possession over the suit premises. It is
alleged in the plaint that some persons had threatened plaintiff to
vacate the suit premises. It is also pleaded by the plaintiff that the
defendant society has orally informed that they do not want plaintiff to
remain in the suit premises and they will throw him from the suit
premises. The plaintiff has also filed complaint to the police. The
plaintiff has pleaded that prior to 05.01.2018, there was no denial of his
rights and title over the suit premises at the hands of the defendant.
However, now the defendant is denying the plaintiff's title and is trying
to dispossess him from the suit premises.
7. The pleadings in reply affidavit filed by the defendant show that
the defendant has admitted the issuance of share certificate in the name
of the plaintiff. The defendant has also admitted that the plaintiff is the
member of the defendant society in respect of suit premises i.e. godown
No.2, admeasuring about 1800 sq. ft, situated at the basement of Zia
Shopping Centre, 264, Bellasis Road, Mumbai. The defendant has
contended that the plaintiff has been paying the repair funds only as per
the receipts produced by him, but plaintiff has been neglecting to pay
the maintenance charges in respect of the suit premises since 6 to 7
years. The repair funds were paid by the plaintiff only on 10.04.2000 to
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the defendant society. The defendant has pleaded that the inspection
extract dated 11.05.2007 issued by the Asstt. Assessor and Collector, “E
ward” of Municipal Corporation has annexed to the plaint as exhibitE
shows that the suit premises is situated in the basement of the
defendant's society and he used it for Tailoring work. It is submitted
that the plaintiff has failed to produce BMC Licence from Eward of
Municipal Corporation, GST registration certificate, Chief Fire Officer
department certificate and other bills, challans, invoices to establish the
fact of the user of the suit premises. The plaintiff has suppressed the
material fact before this Court, according to the pleading of the
defendant. The defendant has submitted that the plaintiff had given the
suit premises on Leave and License basis without permission of the
society. The defendant has further taken the plea that the concerned
officer of the MCGM and Chief Fire Officer have demolished the illegal
brick masonry wall erected by the plaintiff in the car parking area of B
wing of defendant society as well as ventilators of all three galas
wherein brick masonry walls were erected by plaintiff and other two
gala owners which were also demolished on 05.01.2018 to safe guard
the life of 200 employees and to avoid any hazardous incident or fire
incident. The plaintiff had been using the suit premises for keeping
furniture for cutting clothes now scrap wooden furniture lying in gala
No.1 which is empty. Earlier heavy carton boxes containing cloth
manufactured item and mobile accessories and chemicals were there in
the suit premises. The MCGM has disconnected electricity supply on
05.01.2018 due to fire hazard. In gala Nos.2 and 3 situated in the
basement of the said building, 200 workers were carrying on
Embroidery work in wooden beds/iron beds, 10 illegal WC toilet blocks
were erected. 200 employees were residing their working 24 hours i.e.
Day and night and they were cooking there. Gala Nos.2 ad 3 are empty
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having no doors and are no shutters. All pillars of Zia Apartments Co
operative Housing Society Limited are damaged. Gala owners have
illegally erected B.M. Wall to separate A and B wing in car parking
space. So, illegal trade of manufacturing cloth garments and
Embroidery work were carried on by 200 employees day and night. All
ventilators of gala Nos.1,2 and 3 were filled up with B.M. Walls.
Therefore, Fire Brigade Officer and MCGM officer have broken B.M.
Wall between A and B wing of defendant society.
8. Thus, from the contentions of the defendant, it appears that the
defendant wants to show that because the plaintiff is using the suit
premises dangerously by changing the user of the premises and by
violating the provisions of law in respect of safety etc. and, therefore,
learned Advocate of the defendant has submitted that the plaintiff is not
entitled for the relief of injunction as prayed in this Notice of Motion.
As far as, the rights of the plaintiff to possess the premises is concerned,
I do not think that the defendant has any right to violate the said rights
of the plaintiff. The alleged change in the user of the suit premises at
the hands of the plaintiff, by itself, will not give right to the defendant
to dispossess the plaintiff from the suit premises. The concerned
authorities under the relevant law shall always be at liberty to prohibit
such illegal user from the suit premises at the hands of the plaintiff and
for that legal action can be taken by them against the plaintiff. The
defendant cannot dispossess the plaintiff in any case for the aforesaid
reasons. Thus, I find that the plaintiff has prima facie case and balance
of convenience in his favour and if, temporary injunction restraining the
defendant from dispossessing the plaintiff from the suit premises is not
granted, the plaintiff would suffer irreparable loss as his dispossession
may cause loss of property to him. Accordingly, I have answered points
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NM 555/18 in SU 258/18 .. 7 .. Order
No.1,2 and 3 in the affirmative. Temporary injunction restraining the
defendant from the suit premises may be granted with liberty to the
defendant to move the concerned authorities for appropriate action
against the plaintiff under law for violation of any law in respect of use
of the suit premises. However, at this stage, it is not necessary to
appoint the Court Commissioner. Plaintiff has not shown why it is
necessary to appoint Court Commissioner. Hence, I have recorded
negative findings on point No.4. However, I hold that the Notice of
Motion may be partly allowed in terms of the operative order being
passed herein below and accordingly, I have answered point No.5.
Hence, I pass the following order.
: O R D E R :
1. The Notice of Motion No.555 of 2018 is hereby partly allowed
in following terms.
(i) Temporary injunction, pending the hearing and disposal of the
suit is hereby granted restraining the defendant from dispossessing
the plaintiff from the suit premises, with liberty to the defendant to
move appropriate authorities under relevant law in case of violation
of any rules and regulations and law by the plaintiff in respect of the
use of the suit premises.
(ii) Request to appoint Court Commissioner is hereby rejected.
(iii) In these terms, the Notice of Motion stands disposed off
accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 11.12.2018. City Civil Court, Gr. Mumbai
Dictated on : 11.12.2018.
Transcribed on : 11.12.2018.
Signed on : 12.12.2018.
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NM 555/18 in SU 258/18 .. 8 .. Order
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12.12.2018, at 11.54 a.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 11.12.2018
Judgment/order signed by P.O. on 12.12.2018
Judgment/order uploaded on 12.12.2018
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