Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-002037-2018. Notice of Motion No.528/2018
in L.C. Suit No. 4248/2012.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 528 OF 2018.
IN
L.C. SUIT NO. 4248 OF 2012.
Kennedy Anthony D’Mello. ..………....…... ….. PLAINTIFF.
V/s.
Ladu Kishore Gauda and the Others. ........ ….. DEFENDANTS.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 15th November, 2022.
APPEARANCES :
Mr. Nilesh Pandey, Ld. Advocate for the Plaintiff.
Mr. O. P. Singh, Ld. Advocate for Defendant Nos. 1 to 5.
Mr. Sunil C. Khandagale, Ld. Advocate for Defendant No. 6/MCGM.
*****
01. The plaintiff has taken out the Notice of Motion (for brevity
‘the NM’), restraining defendant Nos.1 to 5 from carrying unauthorized
construction/ extension or fixation of any fittings and fixtures in the suit
premises. Perused the NM, his accompanying affidavit and reply filed by
defendant Nos. 1 to 5. Defendant No. 6 did not contest this NM. Heard.
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 her favour ? ..…........................... Yes.
Yes.
(ii). Whether balance of convenience lies in
favour of the plaintiff ? …...................... ...
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CNR NO. : MHCC01-002037-2018. Notice of Motion No.528/2018
in L.C. Suit No. 4248/2012.
Yes.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted ?......................
(iv). What Order ? …..............….................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As all these points are interlinked, to maintain the brevity, I
am taking the same for a joint discussion. By filing this suit, the plaintiff
contended that he is owner of the suit premises and defendant Nos. 1 to
5 are occupying the same. They are bent upon to carry out the unlawful
additions, alternations and construction in collusion with the Officers of
defendant No.6. They also encroached upon the open portion in the 3rd
week of the August, 2012. By virtue of the Probate granted by the High
Court, in Suit No. 11/1994, his parents became the owners of this said
property and after their demise, he along-with his brother and sister are
its owners. Defendant Nos. 1 to 5 are not paying any rent and therefore,
even eviction notice is issued to them on 07.07.2012. Assailing the NM,
defendant Nos. 1 to 5 filed their reply and contended that they are not
carrying any unauthorized construction but only the tenantable repairs
to the suit premises. Further, they denied that they are encroaching on it
and also disputed the plaintiff's status of ownership, as there are interse
differences between the other owners. Although, they admitted issuance
of the notice U/s. 354-A of the MMC Act against them.
04. Having considered the rival submissions, it is worth notable
that initially, on 21.03.2014, the Ld. Predecessor of this Court refused to
grant an ad-interim relief in favour of the plaintiff with the observations
that there is no prima-facie evidence to manifest that defendant Nos.1
to 5 were carrying the alleged alteration/ addition to the suit premises.
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CNR NO. : MHCC01-002037-2018. Notice of Motion No.528/2018
in L.C. Suit No. 4248/2012.
However, the record reveals that in view of the Order dtd. 09.02.2018,
this Court granted this interim, restraining them to carry a construction,
till next date, and the said Order is continued till today. It further seems
that on that day, the plaintiff filed the notice dtd. 03.02.2018, issued by
defendant No. 6, U/s. 354-A of the MMC Ac, along-with the copy of the
inspection report carried as regards Room No. 4, in support of this NM.
Further, he filed some photographs of the alleged construction. Here, it
is notable that as per the plaintiff, this suit premises of Room No. 29 is
shown as Room No.4 in the electricity bill. On the other hand, it seems
that although defendant Nos. 1 to 5 contended to have carried only 'the
tenantable repairs', they are still to prove their stand to that effect. This
being the position, as of now, there is nothing to discard the plaintiff's
claim. In the circumstances, I am of the opinion that there is sufficient
reason to restrain defendant Nos. 1 to 5 to carry out construction on the
suit premises, except by following due process of law. This Order would
also facilitate to preserve the property for trial and to avoid multiplicity
of litigation. Moreover, the suit is filed in the year 2012 and the interim
relief is continued from 09.02.2018. That apart, the issues are framed at
Exhibit 7, on 04.08.2014. However, since then, it had been the period of
about 08 years and there is no substantial progress in the matter. Hence,
it would be just to direct the parties to expedite the trial. In the result, I
answered point Nos. 1 to 3 in the affirmative and to answer point No. 4,
I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 528/2018 is partly allowed.
(ii). Defendant Nos. 1 to 5, their agents, their servants and
anybody else claiming through them are hereby restrained
from carrying any construction/extension in the suit
premises, except by following the due process of law.
(iii). The parties to expedite the suit.
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CNR NO. : MHCC01-002037-2018. Notice of Motion No.528/2018
in L.C. Suit No. 4248/2012.
(iv). Notice of Motion No. 528/2018, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 15.11.2022. City Civil Court, Mumbai.
Dictated on : 15.11.2022.
Transcribed on : 16.11.2022.
Signed on : 17.11.2022.
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CNR NO. : MHCC01-002037-2018. Notice of Motion No.528/2018
in L.C. Suit No. 4248/2012.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18.11.2022 at 1.30 p.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 15.11.2022.
Judgment/Order signed by P.O. on 17.11.2022.
Judgment/Order uploaded on 18.11.2022.
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