Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-001821-2018. Notice of Motion No. 454/2018.
in L.C. Suit No. 273/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 454 OF 2018.
IN
L.C. SUIT NO. 273 OF 2018.
Saifullah Hashmullah Chaudhary. ..…...… ….. PLAINTIFF.
V/s.
MCGM. ..…..........................................….. ….. DEFENDANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 31st January, 2023.
APPEARANCES :
Shri. Virendra T. Dubey, Ld. Advocate for the Plaintiff.
Shri. Sunil C. Khandagale, Ld. Advocate for the Defendant.
*****
01. The plaintiff has taken out this Notice of Motion (for short
‘the NM’), restraining the defendant from implementing the notice dtd.
13.10.2017, issued U/s. 354-A of the MMC Act,1888, and the Speaking
Order dtd. 02.11.2017 as against this suit premises. Perused the NM, his
accompanying affidavit and reply of the defendant. Heard both sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in his favour ? ….............................. …No.
(ii). Whether balance of convenience lies in
favour of the plaintiff ? …........................ ... No.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted ?.................... …No.
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CNR NO. : MHCC01-001821-2018. Notice of Motion No. 454/2018.
in L.C. Suit No. 273/2018.
(iv). What Order ? …..............….................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are inter-connected, to maintain the brevity,
I am taking the same for a joint discussion. Since inception, the plaintiff
came with specific case that he is possessing this suit premises by virtue
of the Agreement of sale dtd. 25.11.1993. It is also duly assessed to the
Municipal taxes, as per assessment No. L-1634(11JB). The suit premises
is in existence since last several years. However, as he wasn't on cordial
terms with the some persons, upon their false complaints, the defendant
issued this notice and further passed the Speaking Order. He replied
this notice on 06.11.2017 and the subsequent Order is awaited till
today. In the circumstances, the notice and the earlier Speaking Order
are bad in law. He supported this NM by relying upon the copies of the
Agreement of sale, Electricity bills, Bombay Shops & Establishment
License, the Bill of Assessment, etc.. On his turn, the defendant outright
denied this NM on the ground that in view of inspection report, carried
on complaint of one Mohd. Shafiq Mohd. Razaq, the said construction
found in progress and accordingly, on 12.10.2017, the inspection report
was drawn. More so, on inquiry, as the owner/occupier could not justify
this structure, the notice was issued. The plaintiff did not reply this
notice and hence, the Speaking Order followed. Moreover, in view of
the said Order, firstly, on 15.11.2017 and later, on 11.01.2018, even the
said structure came to be demolished. To substantiate this position, he
filed the copy of the notice, the Speaking Order, the demolition reports,
etc. as per list at Exhibit 3.
04. Having considered this position of record, at the outset, it is
notable that the plaint averments are silent to gather 'the legality' of the
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CNR NO. : MHCC01-001821-2018. Notice of Motion No. 454/2018.
in L.C. Suit No. 273/2018.
notice structure. The documents like Agreement of sale dtd. 25.11.1993
and the assessment bill are also falling short to assume long existence of
the notice structure. That apart, it is nowhere the plaintiffs case that the
notice structure was brought into existence only after securing sanction
or due permission from the defendant. The record shows that in view of
the Order dtd. 03.02.2018, this Court called the defendant to consider
the plaintiff's notice reply of dtd. 06.11.2017 and the documents and to
pass the Speaking Order afresh. However, it appears that on 10.09.2020
the advocate for defendant informed the Court that the notice structure
is already demolished. Hence, on this statement, the parties were asked
to verify the situation and to argue the matter. However, till today, the
plaintiff could not rebut the defendant's claim that the notice structure
is so demolished. It is, thus, clarified that the notice is 'acted upon' long
back. On this background, I am of the opinion that the plaintiff has no
prima-facie case and balance of convenience also doesn't tilt in his side.
Simultaneously, he could not show that the non-granting of this interim
relief would cause irreparable loss to him. Hence, I answered point Nos.
1 to 3 in the negative and in answer to point No. 4, I pass the following
Order :
-: O R D E R :-
(i). Notice of Motion No. 454/2018 stands dismissed.
(ii). Notice of Motion No. 454/2018 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 31.01.2023. City Civil Court, Mumbai.
Dictated on : 31.01.2023.
Transcribed on : 01.02.2023.
Checked and Signed on : 02.02.2023.
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CNR NO. : MHCC01-001821-2018. Notice of Motion No. 454/2018.
in L.C. Suit No. 273/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
03.02.2023. at 3.30 p.m. Mrs. S.R.Mejari
Name of the Judge HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 31.01.2023.
Judgment/Order signed by P.O. on 02.02.2023.
Judgment/Order uploaded on 03.02.2023.
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