Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 694-19 IN LC SU 1808-19
CNR NO.MHCC01-001784-2019
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.694 OF 2019
IN
L.C.SUIT NO.1808 OF 2019
1. Hoorbai Mohammed Hanif Mansuri ]
& Ors. ]... Plaintiffs.
Versus
1. Municipal Corporation of Greater ]
Bombay and another. ]... Defendants
Coram : H.H.Shri Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 20th February, 2019.
Ms. Thakkar, advocate for plaintiffs.
Ms. Chandramore, advocate for defendant/BMC.
O R D E R
1. The plaintiff by this Notice of Motion seeks temporary
injunction restraining the defendant MCGM from demolishing the
English toilet and safety box grill fixed at the suit premises i.e.
residential tenanted premises, room No.6, 1st floor, 130/132, Gujar
Street and 413415, Maulana Azad Road, Bhanushali building, Mumbai
400 003.
2. It is the case of the plaintiff that he is the tenant of the
above referred premises since last more than 20 years. It is submitted
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that the plaintiff No.1 is suffering from chest cancer and plaintiff No.2 is
diabetic, Neuropathy with Bilateral knee joint pain and non healing
ulcer over left leg. The plaintiff alleged that vide letter dated 12.1.2019
the landlord had given no objection to fix English commode in the suit
premises. The plaintiff further submit that the tenant of shop No.1 and
2 in the building had also given no objection to the plaintiffs for
constructing the English toilet. The plaintiffs submit that on 31.1.2019
they have constructed English toilet with the permission of landlords
and informed the defendant on 31.1.2019 to grant permission. It is
alleged that the defendants are threatening to demolish the English
toilet constructed. It is submitted that the plaintiff is ready to deposit
the regularization charges. It is submitted that the plaintiffs are unable
to use the existing Indian toilet situated in the common passage of the
suit property. It is submitted that the plaintiffs have built toilet on
31.1.2019 and the defendants are threatening to destroy the commode.
3. The defendants have filed their say to the Notice of Motion.
It is contended that the earlier toilet constructed unauthorizedly by the
plaintiffs was demolished by speaking order of demolition No.
C/DOC/220/354 AMMC Act/C3N01/03.01.2018 on 24.1.2018. It is
further submitted that the plaintiff again reconstructed the demolished
Notice structure without prior permission of competent authority. The
plaintiff was issued Notice under Section 488 of MMC Act on
21.12.2018. It is submitted that the repair plan of building No.130132
of M.B.R. & R. Board Mumbai the English toilet in Room No.6 is not
shown. It is the defendants prayed that no cause of action for suit.
Notice of Motion be rejected.
4. Heard Learned Advocate of both the sides.
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The Ld. Advocate for the plaintiff submits that the plaintiffs are ill
and therefore the landlord and the tenants of room No.1 and 2 of the
ground floor had issued no objection to construct the English toilet.
The toilet was constructed on 31.1.2019 and accordingly the plaintiff
had approached to defendant for permission to construct the toilet. It
was argued that the construction of the toilet by the plaintiff needs to
be considered on humanitarian ground. The Ld. Advocate for plaintiff
submits that the plaintiffs would seek Regulation of the construction of
the toilet.
The Learned Advocate for defendants submits that Notice of
Motion can not be entertained as is devoid of merits. He submitted
that the earlier commode set up is demolished by defendants and the
plaintiff again constructed new commode. They are not entitled for
equitable relief.
5. The plaintiff is required to make out a prima facie case,
further is required to show balance of convenience in their favour and is
also required to show that if the notice under Section 488 of the MMC
Act dated 21.12.2018, if acted upon will cause irreparable caused to
them.
6. It is not in dispute that the toilet earlier constructed by the
plaintiff was demolished by the speaking order of the designated officer
of C Ward vide order dated 16.1.2018 on 24.1.2018. It is not in dispute
that the plaintiff again has constructed the English commode
subsequently on 31.1.2019 and had applied for permission. The
Application dated 31.1.2019 filed by the plaintiff at page No.27 i.e.
document at Sr. No.3 annexed with the list at page No.20 of the plaint,
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at points of that the plaintiffs are ill and the W.C. toilet is outside and is
in the Indian and this caused inconvenience to her husband. The
plaintiff No.1 prayed for permission for constructing toilet in her room.
It is clear that permission is sought to construct toilet after constructing
the toilet by the plaintiff. The plaintiffs themselves contend in
paragraph No.14 of the plaint that they have erected English Toilet on
31.1.2019. Reverting back to the contention of the defendant that the
repair plan of building No.130132 of M.B. R. & R. Board, Mumbai does
not show the existence of English toilet in room No.6. The subsequent
construction of the toilet after being noticed, the plaintiffs were issued
notice under Section 488 of MMC Act, dated 21.12.2018.
7. The above referred facts show that the toilet constructed on
31.1.2019 does not exist in the repair plan. The said toilet was
constructed without permission. The plaintiff only had sought
permission to construct the toilet after completing the construction of
toilet. It is clear that the plaintiff does not have any right to construct
the toilet. The construction of toilet is unauthorized. The plaintiff
therefore has failed to make out prima facie case in their support. The
plaintiff had not approached the Court with the clean hands. The
plaintiff claims equitable relief from the Court. They are not entitled for
the equitable relief as the earlier unauthorized construction of toilet was
demolished by the defendants on 24.1.2018, the plaintiffs again have
constructed new toilet without permission. The subsequent permission
is also unauthorized. It may be true that the plaintiffs are ill, they have
an alternate toilet for use. In facts and circumstances of the case the
plaintiffs have failed to show that the balance of convenience lies in
their favour. The construction being unauthorized, cannot cause
irreparable loss to them.
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8. The plaintiffs have failed to make out prima facie case. The
balance of convenience does not lie in their favour. The plaintiffs are
not entitled for the temporary injunction as claimed. In result, the
following order is passed:
ORDER
The Notice of Motion No.694 of 2019 is rejected.
sd/
(Sanjay N. Yadav)
Judge,
20/02/2019 City Civil Court, Mumbai.
Directly typed on : 20/02/2019
Signed by HHJ on : 21/02/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.02.2019 At 05.25 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
20.02.2019
JUDGMENT/ORDER signed by
P.O. on
21.02.2019
JUDGMENT/ORDER uploaded
on
21.02.2019
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