Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 721-19 in S.C.SUIT no.367-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 721 OF 2019
(CNR no. MHCC01-002002-2019)
IN
SHORT CAUSE SUIT NO. 367 OF 2019
(CNR no. MHCC01-001571-2019)
Raja Nava Developers Pvt. Ltd.
A Company incorporated under the Companies Act,
1956 having its address at Behram Mahal, 144, 2nd
Floor, Next to Edward Cinema, 534, Kalbadevi
Road, Mumbai – 400002.
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Plaintiff
Versus
Ebrahim Haji Jetha
Aged: 59 years, Occ : Business
having address at 134, Bhatia Building, C.S.
No.275, Malabar & Cumballa Hill Division,
Walkeshwar Road, Mumbai-400036.
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Defendant
Appearances:-
Ld. Advocate Mr. P. D. Gandhy for the Plaintiff.
Ld. Advocate Mr. Ashok R. Pande for Defendant
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 28th February, 2020.
O R A L O R D E R
1. This is an application by Notice of Motion under
O.XXXIX R.1 of The Code of Civil Procedure, 1908.
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2 NM no. 721-19 in S.C.SUIT no.367-19
2. The plaintiff’s case in nutshell is as under :-
The plaintiff is a company incorporated under The
Companies Act, 1956 and engaged in the business of development
and re-development of the buildings in Mumbai. The plaintiff is
owner of property bearing C.S. No.276 of Malabar & Cumballa Hill
Division, 138, Walkeshwar Road, Mumbai 40006., admeasuring
409.68 sq. meters upon which a building known as Raja Nava
(formerly known as ‘Roop Leela’) is situated consisting of ground
plus two floors comprising of 22 rooms (hereinafter “Suit
Property”). The plaintiff purchased the suit property by by way of
Deed of Conveyance dated 20.05.1992.
The plaintiff filed R.A.E. Suit No.1385 of 2005 in the
Court of Small Causes at Bombay, against one Gulam Hussein (since
deceased), who was a tenant in respect of Room No.16, Ground
Floor, in the said building (hereinafter “Suit Premises”).
The land bearing C.S. No.275 belonging to the defendant
is adjoining to the suit property. He purchased the same by Deed of
Conveyance dated 26.06.2009. There is a passage between C.S.
No.275 and 276 which is used to access the suit premises from the
road (hereinafter “the passage”).
After getting decree in R.A.E. Suit No.1385 of 2005,
when the plaintiff attempted to execute the decree, the defendant to
aid the legal heirs of Gulam Hussein prevented the plaintiff from
executing the decree by keeping the passage locked. The defendant
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3 NM no. 721-19 in S.C.SUIT no.367-19
is obstructing the plaintiff’s access to suit premises by keeping it
locked at all times. There is no other access to the suit premises
save and except the passage shown in Exhibit ‘B’ along with the
plaint. This easement of necessity was enjoyed by late Gulam
Hussein earlier and plaintiff is now entitled to enjoy the same.
Therefore, the plaintiff has prayed for temporary injunction directing
the defendant to keep the said passage free for the plaintiff’s ingress
and egress by removing the Iron gate or in the alternative to keep
one set of keys of lock fitted on the Iron Gate and for temporary
injunction restraining from obstructing or interfering with the
plaintiff’s use of the passage till final disposal of the suit.
3. The defendant has filed affidavit in reply contending
inter alia as under:-
The application is totally false. The plaintiff is creating
nuisance and annoyance to the defendant and his property which
consists of the building having Masjid on the first floor. The Iron
Gate was fixed at the time of 1992 communal riots. It has also
benefited the property of defendant by avoiding entry of trespassers
on his property. This entrance gate is in existence since 1992.
The plaintiff has no right over the suit premises and the
passage. The temporary injunction is running against the plaintiff in
Short Cause Suit No. 1093 of 2018 in respect of the same passage
and therefore, the Notice of Motion is liable to be dismissed.
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4 NM no. 721-19 in S.C.SUIT no.367-19
4. Considering rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:-
Sr.
No. POINTS FINDINGS
1. Whether plaintiff has proved
easementary right over the
passage between C.S. No.275 and
276?
In the affirmative.
2. Whether plaintiff proves
prima
facie case
, balance of convenience
and irreparable loss in its favour?
In the affirmative.
3. What order ? Notice of Motion is
allowed in terms of
prayer clauses (a) and (b)
R E A S O N S
AS TO POINTS NOS. 1 & 2:-
5. The defendant is not disputing existence of the passage
between C.S. Nos.275 and 276. The defendant is claiming that there
was Iron Gate at the entrance of the said passage since 1992 and
there is no Room having No.16 (Suit Premises) as alleged by the
plaintiff. In that regard, it is worth noticing that the defendant
purchased his premises in 2009. Therefore, there is no question of
the defendant erecting gate in 1992.
6. The defendant is also denying existence of the suit
premises. However, there is a decree of the Court of Small Causes
Court, Mumbai dated 11.09.2017. The plaintiff filed Execution
Application No.34 of 2018 to execute the decree against the tenant
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5 NM no. 721-19 in S.C.SUIT no.367-19
in Room No.16. In that backdrop, the objection to existence of suit
premises is no sustainable.
7. Ld. Advocate for the defendant has vehemently argued
that in S. C. Suit No.1093 of 2018 the Civil Court has granted
injunction in favour of the defendant herein by restraining the
present plaintiff from using the passage vide order dated 27.04.2018.
It will be useful to reproduce the said order which is as under :
The advocate for the defendant submitted that there is
decree in his favour and for execution of the same, he has
to pass through the lane in the suit premises. The advocate
for the plaintiff agreed that he will allow execution of the
possession decree passed by Small Causes Court, from his
premises, on 48 hours advance notice being given by the
plaintiff. The defendant is therefore, allowed to use the lane
in suit premises only for the execution of the decree and
thereafter, there will be injunction against defendant as to
prayer clause (a). Notice of Motion No.1652 of 2018 is
disposed off.
Prayer clause (a) of the said Notice of Motion no. 1652
of 2018 reads as under :
(a) That, during the pendency and final hearing of
the suit, the Defendants, their agents, their
servants, their representatives, their constituents
and any persons claiming through the Defendants
be restrained by an order of temporary
injunction from (i) forcibly removing the
entrance gate of the suit property i.e. structure
thereon consisting of GROUND, MEZZANINE
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6 NM no. 721-19 in S.C.SUIT no.367-19
AND 4 UPPER FLOORS known as “BHATIA
BUILDING” standing on the land bearing
Cadastral Survey No.275 of Malabar Hill and
Cumbala Hill Division situated at Walkeshwar
Road, Mumbai-400 006, (ii) forcibly
entering/trespassing in the suit passage, and, (iii)
obstructing/interfering/preventing/stopping and
disturbing the peaceful possession of the Plaintiff
over the suit passage and suit property;
From reading of the said prayer clause and the order
dated 27.04.2018 it can be said that the order was not passed after
considering merits of case but the Notice of Motion was disposed off
upon statements made by Ld. Advocates for the parties. Therefore,
the said order cannot come in the way of deciding the rival
contentions on merits.
8. The plaintiff, being the beneficiary of decree in R.A.E.
Suit No.1385 of 2005, has all the rights of Gulam Hussein, the
earlier occupant of the suit premises, including easement rights.
Moreover, the passage is an easement by necessity as there is no
other access to the suit premises from the public road. Therefore,
the plaintiff is entitled for the relief of temporary injunction as
prayed. The balance of convenience is in favour of the plaintiff and
he will suffer irreparable loss if injunction is not granted in his
favour. Hence, points no.1 and 2 are answered in the affirmative
and following order:
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7 NM no. 721-19 in S.C.SUIT no.367-19
ORDER
1. Notice of Motion No. 721 of 2019 is allowed.
2. The defendant, his agents, servants, representative or any
persons on his behalf are temporarily restrained from
disturbing use of passage access as shown in the plan at
Exhibit ‘B’ to the plaint to enjoy suit premises viz. Room
No.16, Ground Floor in Raja Nava building situated at C.S.
No.276, Malabar and Cumballa Hill Division, 138, Walkeshwar
Road, Mumbai - 400006 till final disposal of the suit.
3. The defendant shall keep the said passage in the plan at
Exhibit ‘B’ free for plaintiff’s ingress and egress by removing
the Iron Gate or other thing till final disposal of the suit.
4. Costs in cause.
sd/-
(C. V. Marathe)
Judge,
Date : 28.02.2020. City Civil Court, Gr. Mumbai.
Dictated on : 28.02.2020
Transcribed on : 02.03.2020
Signed by HHJ on : 02.03.2020
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8 NM no. 721-19 in S.C.SUIT no.367-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 09.03.2020 at 5.20 p.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
28/02/2020
JUDGMENT/ORDER signed by
P.O. on
02/03/2020
JUDGMENT/ORDER uploaded
on
09/03/2020
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