Final Order 1

Order Details: Other
Pdf Text: 1 Notice of Motion No. 586/2019 in L.C. Suit No. 778/2015
C.N.R. No. MHCC010020432008
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI
NOTICE OF MOTION NO. 586 OF 2019
IN
L.C. SUIT NO. 778 OF 2015
1. SHRI. HANIF HAROON LAKDAWALA, ]
Age ____ years, an Adult, Indian Inhabitant, ]
residing at Room No. 37, 7th Floor, ]
Minara Mansion, 77, Memonwada Road, ]
C. S. No. 1187 of Mandvi Division, ]
Mumbai – 400 003. ]
2. SHRI. HUSSAIN SULEMAN ODIA, ]
Age ____ years, an Adult, Indian Inhabitant, ]
residing at Room No. 44, 8th Floor, ]
Minara Mansion, 77/79, Memonwada ]
Road, C. S. No. 1187 of Mandvi Division, ]
Mumbai – 400 003. ]... Plaintiffs
Versus
THE MUNICIPAL CORPORATION OF GREATER ]
MUMBAI, a body corporate duly constituted ]
under the provisions of B.M.C. Act, 1888, ]
having their head office at Mahapalika ]
Bhavan, Mahapalika Marg, Mumbai – 400 001. ]... Defendant
Coram : Sanjay N. Yadav, Judge
(Court Room No. 5)
Date : 5th March, 2019.
Mr. B.P. Shukla, Ld. Advocate for the plaintiffs.
Ms. Rawade, Ld. Advocate for the defendant/Corporation.
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2 Notice of Motion No. 586/2019 in L.C. Suit No. 778/2015
ORDER
The defendant/Corporation by this notice of motion prayed
to vacate the stay granted by order dated 20/04/2017 passed by this
Court in notice of motion no. 1487/2015.
2 The facts giving rise to the Notice of Motion, in short, can
be stated as under :
The notice of motion is filed by Kiran R. Dhas, who is in
employment of defendant/Corporation. It is contended that with
reference to the directions of Hon'ble Bombay High Court order dated
10/12/2018, the affidavit is filed by him to comply the directions of
Hon'ble Bombay High Court. It is further contended that the plaintiffs
have challenged the notice dated 16/03/2005 issued u/sec. 354A of
Mumbai Municipal Corporation (MMC) Act in respect of the suit
premises i.e. 7th, 8th & Attic Floors of Minara Mansion Building situated
at C.S. No. 1187 of Madvi Division 77, Memonwada Road, Mumbai.
The plaintiffs had relied upon the documents, a list ExA to D. It is
contended that in the meeting with all the concerned officers on
07/12/2018 and after perusing the replies and record available and in
the absence of any conclusive proofs, the defendant/Corporation had
come to the conclusion that the letters dated 05/05/1960 &
25/09/1962, can not be construed to justify the existence of any floor
above the fourth floor. It is stated that relying on the documents
annexed with i.e. Assessment Bill (ExA), Notice dated 05/05/1960 (Ex
B), a repair permission dated 25/09/1962 (ExC) & rent receipts and
other documents (ExD), the plaintiffs have filed the present suit. After
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3 Notice of Motion No. 586/2019 in L.C. Suit No. 778/2015
hearing both the sides, the defendant/Corporation was restrained from
acting upon the notice by order dated 20/04/2017. The notice of
motion 1487/2015 is made absolute. Being aggrieved by the said
order, the defendant/Corporation preferred A.O. Stamp No.
21940/2017 and challenged the order dated 20/04/2017. It is
contended that writ petition no. 1037/2018 was also filed seeking
directions to demolish the suit structure. It is submitted that after
considering the facts and averments of affidavit of the
defendant/Corporation, the Hon'ble Bombay High Court on
10/12/2018 directed the defendant/Corporation to make application
for vacating stay within four weeks. Pursuant to the order dated
10/12/2018, the defendant/Corporation has taken out the present
notice of motion for vacating the stay. On 28/01/2019, the Hon'ble
Bombay High Court disposed of A.O. Stamp No. 21940/2017, as
withdrawn with direction to the Ld. Trial Court to decide the new
notice of motion in accordance with law as expeditiously as possible. It
is contended that the documents filed by the plaintiffs along with the
plaint to grab the adinterim relief/stay, are verified by the
defendant/Corporation and it is observed that those documents may be
false and fabricated. It is contended that therefore on the basis of
documents' report, filed along with the affidavit of DMCZoneI before
the Hon'ble Bombay High Court and the order passed by the Hon'ble
Bombay High Court dated 10/12/2018, a prayer is made on behalf of
the defendant/Corporation to vacate the stay granted by this Court vide
order dated 20/04/2017 in notice of motion bearing no. 1487/2015.
3 The plaintiffs have filed say to the notice of motion. It is
contended that the notice of motion is false and baseless and can not be
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4 Notice of Motion No. 586/2019 in L.C. Suit No. 778/2015
entertained. It is submitted that the defendant/Corporation had failed
to meet with any of the criteria for rehearing or recalling its own order
as provided in Order 39, Rule 4 of Code of Civil Procedure. It is
contended that the present notice of motion is liable to be dismissed
with compensatory cost. It is contended by the plaintiffs that they are
not aware about the pendency of writ petition no. 1037/2018. It is
contended that the notice of motion was heard on merits and the
defendant/Corporation was given opportunity of being heard. The
plaintiffs lastly contended that the order doesn't need any interference,
hence the notice of motion deserves to be rejected.
4 Heard the Learned Advocate for the plaintiffs and Learned
Advocate for defendant/Corporation.
5 The Hon'ble Bombay High Court in its order in writ petition
no. 1037/2018 on 11/02/2019 has directed this Court to dispose of the
present notice of motion as expeditiously as possible and in any case,
within a period of four weeks from the date of receipt of said order.
It would also be appropriate to refer to A.O. Stamp No.
21940/2017 filed by defendant/Corporation. The said appeal from
order was withdrawn by the defendant/Corporation, as the new notice
of motion is filed before the Ld. Trial Court. The appeal from order was
not prosecuted by the defendant/Corporation.
6 It is not in dispute that the notice of motion no. 1487/2015
was decided on 20/04/2017. The notice of motion no. 1487/2015 was
made absolute.
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5 Notice of Motion No. 586/2019 in L.C. Suit No. 778/2015
7 The Hon'ble Bombay High Court in writ petition no.
991/2016 passed an order dated 21/10/2016 and in para nos. 7 & 9
has observed as follows :
“7. The Corporation has expressed its helplessness in
demolishing the unauthorized structure in view of the
statusquo order issued by the Civil Court. A perusal of the
order dated 07/04/2015 does not indicate that the counsel
for the Corporation had brought to the notice of the Court
that the said structure was demolished twice and that the
respondent no. 5 had reconstructed the same without
obtaining prior permission. Though the Corporation has
claimed that the respondent no. 5 had continued with the
construction while the statusquo order was in operation,
the records of the Civil Court do not indicate that the said
fact was brought to the notice of the Civil Court. The
roznama sheets which have been produced before us
indicate that though the statusquo order was passed on
07/04/2015 and reply was to be filed by the Corporation
on 16/04/2015. The Corporation has filed a reply on
30/06/2016 i.e. after the period of one year from the date
of statusquo order. The conduct of Corporation in not
bringing the relevant facts to the notice of the Court, delay
in filing the reply and not taking any steps to vacate the
statusquo order, primafacie indicates that the officers of
Corporation were responsible for protecting the
unauthorized construction.
9. We also direct the Learned Judge, City Civil Court,
before whom Civil Suit No. 778/2015 is pending, to
expedite the hearing and dispose of the motion in which
statusquo order dated 07/04/2015 has been passed,
before the returnable date.”
8 The order in notice of motion no. 1487/2015 was passed
on 20/04/2017 i.e. after the directions in writ petition no. 991/2016 by
the Hon'ble Bombay High Court.
9 The Ld. Advocate for defendant/Corporation argued that
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6 Notice of Motion No. 586/2019 in L.C. Suit No. 778/2015
the documents relied upon are verified by the defendant/Corporation
and reported that the documents ExA to D, annexed with the plaint,
are found to be false and fabricated. It is argued that after perusing the
replies and the record available and in absence of any conclusive proofs,
the defendant/Corporation had come to the conclusion that the letters
dated 05/05/1960 & 25/09/1962 can not be construed to justify the
existence of any floor above the fourth floor. Therefore, the
defendant/Corporation has filed the present notice of motion. The Ld.
Advocate for defendant/Corporation further argued that the notice of
motion is preferred under Order 39, Rule 4 of Code of Civil Procedure.
The order in notice of motion no. 1487/2015 needs to be vacated.
10 The Ld. Advocate for the plaintiffs argued that entertaining
the present notice of motion would amount to sitting in appeal over the
order passed in notice of motion no. 1487/2015 dated 20/04/2017. It
is contended that the notice of motion is devoid on merits.
11 It would be appropriate to refer Order 39, Rule 4 of Code
of Civil Procedure. The proviso to Rule 4 of Order 39 of the Code
provides that where an order of injunction has been passed after giving
to a party an opportunity of being heard, the order shall not be
discharged, varied or set aside on the application of that party except
where such discharge, variation or setting aside has been necessitated
by a change in the circumstances or unless the Court is satisfied that the
order has caused undue hardship to that party.
12 The two eventualities required to be considered are (1)
There has to be change in the circumstances necessitating discharge,
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7 Notice of Motion No. 586/2019 in L.C. Suit No. 778/2015
variation or setting aside and (2) Unless the Court is satisfied that the
order has caused undue hardship to the party.
This Court can entertain the present notice of motion only
to these two eventualities.
13 On perusal of the notice of motion, there are no grounds
indicating any change in the circumstances. The ground raised in the
notice of motion that in the meeting in the office of
defendant/Corporation, it was concluded that the letters dated
05/05/1960 & 25/09/1962 can not be construed to justify the existence
of any floor above the fourth floor.
The notice of motion points out that both the parties were
heard. It also points out that the documents relied and referred in the
meeting of the defendant/Corporation dated 07/12/2018, were
considered by the Court. It is further contended that the documents
relied by the plaintiffs at ExA to D, annexed to the plaint, are false and
fabricated.
14 The above referred facts do not indicate any change in the
circumstances, nor it indicates anything which satisfied the Court that
the order has caused undue hardship to the defendant/Corporation.
The scope of Court while deciding the present notice of motion, being
very limited in accordance with the proviso of Order 39, Rule 4 of the
Code and there is no change in circumstances and nothing has been
pointed out in the notice of motion indicating that the order has caused
undue hardship to the defendant/Corporation.
15 Even if the present notice of motion is considered as
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8 Notice of Motion No. 586/2019 in L.C. Suit No. 778/2015
review, there is nothing to indicate that there was discovery of new and
important matter or evidence, which after the exercise of due diligence,
was not within the knowledge and could not be produced by him at the
time of order was passed or there was some mistake or error apparent
on the face of record or for any other sufficient reason.
The present notice of motion doesn't point out any
compelling reason to review the order.
The appeal from order against the order in notice of motion
no. 1487/2015 is withdrawn. The defendant/Corporation could have
prosecuted the appeal from order bearing A.O. Stamp No. 21940/2017
and would have opportunity to raise all the grounds available to
challenge the order in notice of motion no. 1487/2015.
The scope to entertain present notice of motion being very
limited, can not be entertained. In result, the following order is
passed :
ORDER
The Notice of Motion No. 586/2019 in L.C. Suit No. 778/2015 is
hereby rejected and disposed of accordingly.
(Sanjay N. Yadav)
Judge,
Date : 05/03/2019 City Civil Court, Mumbai.
Dictated on : 05/03/2019
Transcribed on : 07/03/2019
Signed by H.H.J. on : 08/03/2019
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9 Notice of Motion No. 586/2019 in L.C. Suit No. 778/2015
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 08.03.2019 at 4.15 p.m.
NAME OF STENOGRAPHER : Mrs. G. K. Kotawadekar
Name of the Judge (With Court
Room no.)
HHJ SHRI. SANJAY N. YADAV
C.R. No. 5
Date of Pronouncement of
JUDGMENT/ORDER
05.03.2019
JUDGMENT/ORDER signed by
P.O. on
08.03.2019
JUDGMENT/ORDER uploaded
on
08.03.2019
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