Final Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM. : 1 : L.C.Suit .No.389 of 2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO.389 of 2018
Mr. Ratnakant Govind Worlikar ..Plaintiff
V/s
MCGM ..Defendants
Advocate Mr.A.M.Sarogi for the Plaintiff.
Advocate Mr. Kumawat for Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 21st APRIL 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this draft notice of motion to
restrain defendant corporation causing any interference in carrying out
tenantable repairs to the suit property.
2 According to plaintiff, plaintiff is owner and in possession
of suit property bearing no. 122J situate at Pakhari Lane, Worli
Koliwada, Worli, Mumbai 400 030. The said house consists ground
plus mezzanine floor with an attic floor. (hereinafter same is referred
as suit property). The suit property is in existence much prior to the
year 196162. Originally premises was in occupation by the
predecessors of the plaintiff. The suit property is situate close to
seashore, the predecessors of the plaintiffs were in the business of
fishery and they were using the entire suit property. Thereafter due to
the passage of time, plaintiff has given the upper floors to different
persons on rent. The suit property is presently in dilapidated condition
and requires immediate tenantable repairs. Plaintiff had applied to
defendant by letter dated 4/05/2017 and 22/12/2017. The officers of
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the defendant visited the suit property and also issued a notice through
Fire Brigade department dated 9/01/2018.
3 According to the plaintiff, the suit property is in
dilapidated condition and requires immediate repairs. Plaintiff has also
produced the photographs of the suit property to the office of
defendant. Officers of the defendant have taken view that since the
repairs are in the nature of tenantable repairs and therefore no
permission is required.
4 Thereafter, plaintiff dumped necessary cement and other
articles require for carrying out the said tenantable repairs but on
2/2/2018, an officer attached to the office of defendant again visited
the suit property and intimated to the plaintiff that even if the plaintiff
is carrying out such tenantable repairs, he is required to take necessary
permission from the office of the MMC. The officer threatened to the
plaintiff that in the absence of the said permission, if the plaintiff starts
with the work of repairs, they will demolish the premises in question.
6 According to the plaintiff, he is intending to carry the
tenantable repairs however, defendant officer threatened to the
plaintiff hence, prayed to grant permission to carry the tenantable
repairs.
7 Notice is served to defendant. Defendant filed reply and
written statement. Defendant denied that the officer of the defendant
threatened to plaintiff that they will demolish the suit property.
Defendant denied that the officer told to the plaintiff that no such
permission is required. Defendant denied that plaintiff is entitled for
relief of temporary injunction as sought.
9 According to defendant, plaintiff has not given notice U/s
527 of MMC Act. Hence, the suit is not maintainable. There is no cause
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of action to file the suit.
10 According to defendant, plaintiff has made application dated
22/12/2017, and contended that the suit property is in dilapidated
condition and sought permission to repair. Thereafter, defendant
directed the plaintiff to produce the application in the specific form and
also the documents. The suit property consists ground +first floor.
Thereafter, the defendant obtained record from assessment and
collector departments. It is contended that this defendant has acted as
per the provisions of law. Plaintiff has no prima facie case, balance of
convenience does not lie in favour of plaintiff. Hence, prayed to reject
the notice of motion.
11 I have heard Shri A.M.Sarogi adv for plaintiff and Shri
Kumawat advocate for defendant.
12 Shri A.M.Sarogi advocate for plaintiff has submitted that
the suit property is old and in dilapidated condition. The suit property
requires immediate tenantable repairs. Plaintiff had applied to the
defendant corporation. The officer of defendant has told plaintiff that
no such permission is required for such tenantable repairs. Thereafter,
plaintiff dumped cement and other materials but officer of the
defendant threatened to him not to carry the repairs. According to him,
as per section 342 of the Mumbai Municipal Corporation Act, no such
permission is required. Therefore, plaintiff be permitted to carry
tenantable repairs. Shri Kumawat advocate for defendant has
submitted that the building is in dilapidated condition. Plaintiff has
sought permission to make repairs. However, he has not filled the
specific form and also not produced the documents. He prayed to reject
the application.
13 From the perusal of plaint and documents it appears that
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plaintiff had applied to the corporation to carry the repairs. It is true
that plaintiff has not given specific form. The defendant has asked
plaintiff to produce the documents but he did not produce the
documents. It is the case of plaintiff that he is intending to make
tenantable repairs. According to plaintiff the walls have cracks and
plaster of the wall is damaged. Plaintiff resides in the suit property.
There are also tenants in the suit property. It is pertinent to note that
the survey was carried out by the fire brigade department and they
noticed that cracks are developed on internal and external wall of the
premises. Thus, from the contention of the plaintiff and documents on
record, I find that the suit property requires immediate tenantable
repairs.
14 However, as per section 342 of the MMC Act no such
permission for tenantable repairs is required from the Municipal
Corporation. Hence, with this I pass following order:
ORDER
1 Plaintiff may carry the work of tenantable repairs.
2 If the corporation finds that plaintiff has carried the
repair work out of the scope of tenantable repairs,
defendant has liberty to proceed against plaintiff as per
law.
3 Notice of Motion is disposed of accordingly and it be
registered for statistical purpose.
Date : 21/4/2018. (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 21.04.2018
Typed on : 21.04.2018
Signed by HHJ. : 23/04/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
24/4/2018 Mr. S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
21/4/2018
JUDGEMENT/ORDER signed by
P.O. on
23/4/2018
JUDGEMENT/ORDER uploaded
on
24/4/2018
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