Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 Un registered NM in Suit no.291-2018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
UNREGISTERED NOTICE OF MOTION
IN
STAMP NO.291 OF 2018
Shaikh Faiz Abdul Samad ]..Plaintiff
Versus
The Municipal Corporation of Greater
Mumbai. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 1st February, 2018.
Mr.B.P. Shukla, advocate for plaintiff.
Mr. Dhumale, advocate for defendant/BMC.
ORDER
1 The plaintiff has taken out notice of motion seeking
preventive relief to the effect that he should not be dispossessed of the
suit shop without following due process of law. Leave to register is
granted.
2 Heard respective advocates.
3 In short, it is the case of the plaintiff that he has in long
standing possession and use of the shop no.24 D (in short, “suit shop”),
on the basis of naukarnama executed by the licensee of the suit shop.
Undisputedly, the suit shop is owned by the defendant.
4 The Learned Advocate for the plaintiff submits that the suit
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shop has been bequeathed to the predecessor in the title of the plaintiff
by the original licensee. At this juncture, it is not necessary to make any
observations about the legality and vires of the alleged bequeath.
5. The Learned Advocate for the plaintiff submits that the
defendant Corporation, without giving any notice and opportunity of
hearing is bent upon to dispossess the plaintiff of the suit shop.
6. On the other hand, the Learned Advocate for the defendant
submits that an executant of the said bequeath had no right to transfer
the suit shop under the bequeath. He further submits that there is no
document to show that the plaintiff is in lawful possession of the suit
shop. According to him, the naukarnama is not an authentic document.
He submits that the suit shop stands in the name of licensee
Maimunabai. He further submits that after issuing notice no
opportunity of hearing was given to the plaintiff and thereafter, an
order has been passed to take possession of the suit shop on 16.1.2018.
7. Perused the copies of documents placed on record. It is not
necessary to probe into the naukarnama and the bequeath or who was
the licensee and how the predecessor in title of the plaintiff came in use
and occupation of the suit shop. It appears from the copy of the inquiry
so conducted by the concerned officer of the defendant that a notice of
hearing was given to the plaintiff. However, none of the parties had
produced such copies of notice on record. It is further recorded in the
minutes of the hearing that as the plaintiff was absent. He was called
upon to remain present by making a call on cell phone and after
completion of the inquiry, the plaintiff appeared in the office of the said
officer. Thus, prima facie there is no notice. A fair opportunity of
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hearing has not been given to the plaintiff. So far as the title of the
plaintiff is concerned, prima facie it appears that the plaintiff is in use
and occupation of the suit shop. The plaintiff has not placed anything
on record except naukarnama, copy of will and some payment receipts
to show that the status of his holding of the suit shop is something more
than permissible use and occupation. Under such circumstances, it was
necessary for the defendant to issue him a notice in writing and then to
take further action against the plaintiff as contemplated under Section
105(b) of the MMC Act to remove him from the suit shop. The
documents on record shows that some hearing was conducted but that
too, prima facie in absence of plaintiff. Therefore, intervention of this
Court at this stage appears necessary. Thus, the following order is
passed:
ORDER
1. No coercive action should be taken by the defendant against the
plaintiff without following due process of law.
2. The defendant to issue notice to the plaintiff and by giving fair
opportunity of hearing take action necessary under the prevailing
laws within a period of three weeks from today i.e. on or before
17.2.2018.
Sd/
(M.S. Deshpande)
Judge,
City Civil Court, Mumbai.
Dictated on : 01/02/2018.
Transcribed on : 05/02/2018
Signed by HHJ on : 06/02/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 07.02.2018 At 12.30 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
01.02.2018
JUDGMENT/ORDER signed by
P.O. on
06.02..2018
JUDGMENT/ORDER uploaded
on
07.02.2018
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