Order 2

Order Details: Notice of Motion
Pdf Text: NM 437-18 in S.C.SU 1504-07 1 Date : 20.08.2025
MHCC010017242018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 437 OF 2018
IN
S.C. SUIT NO. 1504 of 2007
Paneer Supayya Devendra since deceased
through LRS and Ors.
] … Plaintiffs
Versus
The Maharashtra Housing and Area
Development Board and Ors.
]
] … Defendant.
And
Prakash Sonawane and Anr. ] … Respondents
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Appearances :-
Ld. Adv. N.N. Shah for plaintiff.
Ld. Adv. Mangal Kadam for defendant no. 1.
Ld. Adv. Trivedi for defendant no. 2/SRA.
Adv. Som Sinha a/w. Adv. Apurva Dalal for defendant no. 3/BMC.
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CORAM : R.R. PATARE
JUDGE, (C.R.NO.08)
Heard on : 18.08.2025
Decided on : 20.08.2025
ORAL ORDER
(Dictated in open court)
1. From the pleadings and documents following points arises for
determination and findings thereon are recorded as under:
Sr.
No.
Points Finding
1 Whether plaintiff has made out prima facie
case for grant of injunction order as prayed?
In the negative.
2 Whether balance of convenience lies in
favour of plaintiff?
In the negative.
3 Whether plaintiff suffer irreparable loss? In the negative.
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NM 437-18 in S.C.SU 1504-07 2 Date : 20.08.2025
4 What Order? As per final
order.
2. Perused pleadings and heard advocate for the parties.
3. This Notice of motion is taken out by plaintiffs under Order 39
rule 1 of Code of Civil Procedure seeking mandatory direction against
the defendant no. 3 for reconstruction and restoration suit structure
demolished on 27.12.2017. The Ld. Advocate for plaintiff would submit
that the suit structures are illegally demolished by the defendant in
contravention of order passed in notice of motion. He would submit
that the defendant is in contempt of order passed by the Court. He
would further submit that suit structure are demolished without notice.
He would further submit that the plaintiffs are entitle for restoration
and for reconstruction of suit structure. In support of his submission, he
relied on Judgment in the case of
Jaiprakash Vishwanath Jaiswal V/s.
Municipal Corporation of Cities of Kalyan and Dombivali and Ors.
reported in 2018(6) Mh.L.J. 459, in the case of Javed Khaliq Khan V/s.
Thane Municipal Corporation and Ors. in Writ Petition No. 7856 of
2016, in case of Mohd. Sayed Mohd. Salim Nagori Rizvi V/s. The
Municipal Commissioner and Ors. in Writ Petition No. 518 of 2017, in
case of M/s. Mehta & Co. V/s. Municipal Corporation of Greater
Mumbai and Anr. reported in 2025(4) ABR 130, in case of Tulsiwadi
Navnirman Co-op. Housing Society V/s. State of Maharashtra and Ors.
reported 2007(6) Mh.L.J. 851.
4. On the other hand Ld. Advocate for defendant would submit that
the suit structure were on footpath and demolished under order of
Hon’ble High Court. He would further submit that the plaintiffs are
held not eligible and their names are not appearing in Annexure II. He
would submit that notice of motion filed on behalf of plaintiffs is
without merit and requested for dismissal.
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NM 437-18 in S.C.SU 1504-07 3 Date : 20.08.2025
5. Admittedly, plaintiff’s notice of motion no.3280 of 2017 for relief
of injunction restraining the defendant no. 3 from demolishing suit
structure came to be rejected by order dated 10.02.2020. From the
record, plaintiff’s motion no. 3003 of 2012 for order of injunction
restraining the defendant from disconnecting water supply and for
direction to consider plaintiff’s claim under Slum Rehabilitation Scheme
came to be dismissed on 09.05.2013. Admittedly, the suit structure
were on the footpath. The entitlement of plaintiffs to retain their
possession in the suit structure and their entitlement to get alternative
accommodation under the Slum Scheme itself is challenged on behalf of
defendant. From the record, it is seen that order passed in Notice of
Motion no. 3003 of 2012 has attended finality. The defendant has
finalised Annexure II and found plaintiffs not eligible to get any
accommodation. Admittedly, till this date plaintiff did not challenge
Annexure II before Competent Authority. The Ld. Predecessor came to
the conclusion that the suit structure can not be protected. The order
passed by Hon’ble High Court in Writ Petition No. 3023 of 2016 is
brought on record. It is seen that suit structure are demolished under
order of Hon’ble High Court. The prayer made in the notice of motion
is in the nature of final relief. The eligibility of plaintiff is yet to be
determined by the Court. The Competent Authority under Slum Act has
already held plaintiffs not eligible. In this circumstances, mandatory
order for reconstruction and for restoration as prayed by the plaintiff
can not be passed at this stage. The plaintiffs failed to made out prima
facie case for grant of mandatory order. The balance of convenience is
in favour of defendant. The suit structures are already demolished
hence, the defendant will suffer irreparable loss. In the result, point
no.1 to 3 are answered in negative and following order is passed :
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NM 437-18 in S.C.SU 1504-07 4 Date : 20.08.2025
ORDER
1. Notice of Motion no. 437 of 2018 stands rejected.
2. Notice of Motion No. 437 of 2018 is disposed off with no order as
to costs.
(R.R. Patare)
Judge, City Civil Court,
Gr. Mumbai,
Dated :20/08/2025. (C.R.08)
Directly Dictated on : 20.08.2025
Signed on : 20.08.2025
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NM 437-18 in S.C.SU 1504-07 5 Date : 20.08.2025
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22/08/2025 Ms. V.V.Sawant
Name of the Judge (With Court room
no.)
R.R. Patare (Court Room No.08)
Date of Pronouncement of
JUDGMENT/ORDER
20/08/2025
JUDGMENT/ORDER signed by P.O.
on
22/08/2025
JUDGMENT/ORDER uploaded on 22/08/2025
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