Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 56519 in SC Suit No.140417.
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.565 OF 2019
(CNR No. MHCC010014632019)
IN
SC SUIT NO.1404 OF 2017.
(CNR No.MHCC010060562017)
Mr. Shashikant Tukaram Salvi & Ors. }...PLAINTIFF.
Versus
Mr. Mohammadali Yusuf Bagdadi Ors. }...DEFENDANTS.
Shri.L.K.Tripathi, learned advocate for the plaintiffs.
Shri.Parag Shah, learned advocate for defendant Nos.7 to 17.
CORAM : HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 11/02/2019)
1. This Notice of Motion is taken out by the plaintiffs for grant
of temporary injunction for restraining defendant Nos.7 to 17 from
carrying out any construction activity pursuant to revised LOI
dt.15/09/2018 & Commencement Certificate dt.20/12/2018 obtained
by defendants without order of this court. Relief is also claimed to
appoint Court Receiver to protect & preserve the status of suit property.
Read the affidavit filed in support of Notice of Motion & reply filed by
defendant Nos.7 to 17. Heard learned Shri.L.K.Tripathi, advocate for
the plaintiffs & learned Shri.Parag Shah, advocate for defendant Nos.7
to 17. Perused the entire record.
2. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether primafacie case lies in favour of the
plaintiffs? ...No.
ii)Whether balance of convenience lies in favour
of the plaintiffs? ...No.
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iii)Whether irreparable loss will cause to the
plaintiff if injunctions as prayed are not granted? ...No.
iv)What order? ...As per final order.
R E A S O N S
AS TO POINT Nos.(i) TO (iii):
3. All the points are taken together for consideration. Learned
advocate for plaintiffs argued that defendant No.7 to 17 are claiming to
have purchased the suit property from defendant Nos.1 to 6 as per
conveyance dt.01/10/2010 but said conveyance is illegal as defendant
Nos.1 to 3 have already sold the suit property to plaintiffs & others by
executing saledeed dt.06/10/1990. He argued that defendants have
obtained Commencement Certificate dt.20/10/2018 & under the guise
of settlement, defendants have sought order dt.21/12/2018 from this
court for referring the matter to Mediation but instead of attending the
matter before the Mediator, defendant Nos.7 to 17 have applied for LOI
dt.15/09/2018 for starting & carrying out the construction activities in
suit property. He argued that those defendants have illegally
constructed RCC road in disputed property & fencing around the said
road, they have lifted the bricks & scraps so also, they have started
laying foundation more than 25 feet deep in the suit property. He
argued that the activities of defendant Nos.7 to 17 to start construction
in the suit property without obtaining any order from this court are
illegal as rights of the parties are yet to be determined by this court in
this suit which is filed by the plaintiffs for declaration of title of
plaintiffs. He argued that defendant Nos.7 to 17 are not entitled to
change nature of the suit property pending final decision of the suit
hence, it is necessary to restrain defendant Nos.7 to 17 from carrying
out construction activities in the suit property by granting temporary
injunction in favour of plaintiffs under Order 39 Rule 1 of CPC as is
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3 NM 56519 in SC Suit No.140417.
prayed in this Notice of Motion otherwise, it will cause an irreparable
loss to the plaintiffs. He further argued that it is necessary to appoint
Court Receiver to maintain the status of the suit property, pending final
decision of the suit.
4. As against this, learned advocate for defendant Nos.7 to 17
argued that this court cannot grant the reliefs claimed in the Notice of
Motion in view of the various Orders passed by Hon'ble High Court &
Hon'ble Supreme Court. He argued that plaintiff No.1 has given
undertaking before Supreme Court that plaintiff No.1 will not create
any obstruction in future yet this Notice of Motion is taken out by
plaintiffs in gross violation of said undertaking. He argued that plaintiffs
have already filed two Notice of Motion in this suit wherein, this court
has refused to grant adinterim relief in favour of plaintiffs & thereafter,
those Notice of Motion have been tagged with suit on requests made by
the plaintiffs due to which, this Notice of Motion filed for same relief is
not maintainable. He further argued that plaintiffs have also filed Writ
Petition No.174 of 2018 for identical reliefs which is pending before
Hon'ble High Court & on that count also, plaintiffs are not entitled for
the reliefs claimed in this Notice of Motion. He further argued that
defendant No.7 has already complied with all the directions issued by
Hon'ble High Court & by Hon'ble Supreme Court from time to time
including the direction given by Hon'ble Supreme Court for depositing
the amounts of rent, plaintiff No.1 is already held eligible & slum
Scheme is approved for total 269 occupants due to which, the scheme
cannot be stayed by granting injunction in favour of the plaintiffs &
hence, the Notice of Motion is liable to be dismissed.
5. At the first instance, it would apposite to mention here that
it is not in dispute that plaintiffs had taken out two Notice of Motion
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earlier in this suit seeking reliefs of injunction & this court has refused
to grant interim reliefs in favour of the plaintiffs after which, those
Notice of Motion are tagged with the suit on requests of plaintiffs. It is
also not in dispute that during crossexamination of PW1 Shashikant, it
was suggested by learned advocate for defendant No.7 that matter may
be settled if referred to Mediator & thereafter, the matter has been
referred to Mediator for attempts of settlement as plaintiffs have
consented for it & as it appeared that there exists an element of
settlement. Learned advocate for plaintiffs argued that defendant Nos.7
to 17 are not appearing before the Mediator & under the guise of
settlement, those defendants are trying to develop the suit property. In
the affidavit filed in support of the Notice of Motion, it is mentioned
that defendant Nos.7 to 17 have constructed RCC road & fencing
around the suit property. So far as said statement is concerned, it is an
admitted fact that as per order dt.22/02/2018, this court has held that
plaintiffs are at present not residing in the suit premises hence there is
no immediate threat to their right of access as is alleged in the suit.
With said observation, this court had refused to grant interim order in
favour of the plaintiff.
6. Defendant Nos.7 to 17 have produced on record the copies
of Orders passed by Hon'ble High Court & by Hon'ble Supreme Court.
Copy of Order dt.28/07/2017 passed by Hon'ble Supreme Court in the
Petition for Special Leave to Appeal (C) No.6261 of 2017 is also placed
on record by both parties. By passing said Order, Hon'ble Supreme
Court is pleased to direct this court to dispose off the suit within one
year. Hon'ble Supreme Court is pleased to dispose off said Petition by
passing Order dt.28/07/2017 as;
''Permission to file the special leave petition is granted.
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Heard Mr. Shekhar Naphade, learned senior counsel for the
petitioners.
It is submitted by him that as the suit has been filed by the
petitioners, the trial Court may be directed to decide the same in
accordance with law, as expeditiously as possible. The trial court
shall dispose of the suit within a year hence. Needless to say, the
orders passed by us on the earlier occasion shall be carried to its
logical conclusion and no deviation shall be permitted.
The special leave petitions are, accordingly, disposed of.''
7. Learned advocate for plaintiffs argued that while issuing
direction to this court to dispose off the suit within one year, Hon'ble
Supreme Court has directed that the Orders passed by Hon'ble Supreme
Court on earlier occasions shall be carried out to its logical conclusion
and no deviation shall be permitted. He argued that by virtue of said
direction, it is necessary to restrain the defendants from carrying out
any construction in the suit property. Per contra, learned advocate for
defendant Nos.7 to 17 argued that Orders passed on earlier occasions
by Hon'ble Supreme Court are the Orders dt.10/2/2017 & 10/4/2017.
Copies of those Orders of Hon'ble Supreme Court are placed on record
by defendant Nos.7 to 17.
8. It is an admitted fact that the structures in the suit property
including the structure of plaintiff No.1 are demolished as per the
directions issued by Hon'ble High Court & by Hon'ble Supreme Court. In
my humble opinion, direction for demolition of the structures standing
in the suit property has been given to facilitate the implementation of
Slum Rehabilitation Scheme. Said Scheme has to be implemented for
many other eligible persons & said process cannot be allowed to be
stalled at the instance of plaintiffs hence, I could not find any force in
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the contention raised by the plaintiffs that defendant Nos.7 to 17 are
trying to effect construction in the suit property illegally & that too,
under the guise of Mediation & settlement because, even if the matter is
not settled amicably through Mediator, the suit will have to be decided
on its own merits by this court on the basis of evidence adduced &
produced by both the parties. The aspect of plaintiffs' becoming owners
of part of the suit property by virtue of sale deed dt.06/10/1990 which,
according to the defendants, is got registered on 17/12/2016, is a
matter for consideration on merits of the suit. At this stage, suffice it to
say that suit property is under development for implementation of the
Slum Rehabilitation Scheme & said process cannot be stopped by
granting injunction as is prayed by the plaintiffs.
9. Furthermore, as can be seen from the copy of Writ Petition
No.174 of 2018, plaintiffs have filed said Writ Petition for seeking relief
that respondent No.7 has no right to implement S.R.A. Scheme on
C.T.S. No.237, LOI dated 16/01/2014, sanctions, permissions granted
to respondent No.7 by Respondent Nos.2 to 6 be revoked and/or
cancelled and/or recalled. Certain other reliefs are also claimed in the
said pending Writ Petition. In the present Notice of Motion, plaintiffs
have claimed interim injunction to restrain defendant Nos.7 to 17 from
carrying out construction activities in the suit property which, in my
opinion, impliedly indicates that plaintiffs want to stay the
implementation of Slum Rehabilitation Scheme.
10. So far maintaining the status of property as it is by invoking
the provisions of Order 39 Rule 1 CPC is concerned, the power given by
said provision to the court is required to be exercised judiciously & in
view of the fact that the structures are demolished as per directions
issued by Hon'ble High Court & by Hon'ble Supreme Court, the further
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activity of defendant Nos.7 to 17 in effecting construction appears to be
in furtherance of implementation of the Scheme due to which, staying
of said process by granting injunction & by appointing Court Receiver
will not be in the interest of justice. Thus, I hold that neither prima facie
case nor balance of convenience do lie in favour of the plaintiffs. In the
result, there is no question of causing any irreparable loss to the
plaintiffs if injunction as prayed is not granted in their favour. For these
reasons, I answered Point Nos.(i) to (iii) accordingly and pass the
following order.
O R D E R
Notice of Motion No.565 of 2019 is dismissed.
Costs in the main cause.
Date: 11/02/2019. (P.P.RAJVAIDYA)
Direct dictated on : 11/02/2019. Judge, C.R.No.12,
Checked on : 13/02/2019. City Civil Court,
Signed on : 14/02/2019. Gr.Bombay.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
14.02.2019 at 12.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 11/02/2019
Order signed by P.O. on 14/02/2019
Order uploaded on 14/02/2019
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