Order 1

Order Details: Notice of Motion
Pdf Text: NM 55218 in SU 35018 : 1 : Dt. : 04.05.2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 552 OF 2018
IN
S.C. SUIT NO. 350 OF 2018
Mohammed Ismail Gulam Rasool Shaikh ...Plaintiff
Versus
The Provident Investment Co. Ltd. ...Defendant
Adv. Mr. Darshit Jain for Plaintiff present.
Adv. Mr. Tiwari for Defendant present.
CORAM : HHJ DR (SMT.) SRISHTY NEELKANTH
(C.R. NO.02)
DATED : 4th MAY, 2018.
ORDER
This Notice of Motion has been filed by the Plaintiff for an
order of injunction restraining the defendant from disturbing the use,
occupation and possession of the suit premises by the plaintiff.
2. The Plaintiff is claiming possession of the suit premises i.e.
Shed having a room situated between buildings of Mathuradas Estate,
by an affidavit cum declaration executed in his favour by one Mr. Essa
Moosa Korachamkandil. It is his case that his predecessors were in
settled occupation and possession of the suit premises for several
decades. He has relied upon Ration Card, Voter Card, Passport of Mr.
Essa Moosa. He has also contended that the suit property was handed
over to him in 2014 and since then he was carrying on business from
the suit premises. He has relied upon copies of Electricity Bills, copy of
Registration Certificate issued under Maharashtra Shops and
Establishment Act, Copy of Telephone Bills, etc. in his name to prove his
possession of the suit premises.
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3. The suit property i.e. the shed area and room was placed
between buildings of Mathuradas Estate. The Bombay Port Trust is the
owner of the buildings of Mathuradas Estate and the land beneath the
buildings. The defendant claimed to be the lessee of Mathuradas
Estate.
4. The Plaintiff contends that since the members of the
buildings wanted to go for redevelopment and also because of business
rivalry with the plaintiff, they started threatening the plaintiff with dire
consequences and wished to evict the plaintiff. The plaintiff
apprehended that the defendant may forcibly dispossess the plaintiff
from the suit premises though he was in settled possession. The learned
advocate of the plaintiff relied upon :
Rame Gawda (Dead) by LRS. Vs. M. Varadappa
Naidu (Dead) by LRS. And Another
(2004) 1 Supreme Court Cases 769
wherein it has been observed by the Hon'ble Supreme Court that an
occupant in settled possession can not be dispossessed without recourse
to law. He prayed by way of this Notice of Motion to restrain the
defendant from obstructing the plaintiff's use, occupation and
possession of the suit premises.
5. The defendant on the other hand contends that the open
space between the two buildings of Mathuradas Estate was encroached
by the plaintiff since 2014 and an illegal structure was constructed by
him which was demolished by Municipal Corporation Bombay in
February, 2016. It is contended that the plaintiff had trespassed
illegally on the common area between the two buildings. The plaintiff
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had filed an earlier Suit No. 8 of 2015 wherein the adinterim prayer
was rejected and subsequently the Appeal from Order No. 75 of 2015
filed by the plaintiff was also rejected. The Petition for Special Leave to
Appeal (C) No(s). 10782 of 2016 filed by the plaintiff in the Hon'ble
Supreme Court was also dismissed.
6. Further the plaintiff had deliberately not made the owner /
lessor of the suit premises i.e. Bombay Port Trust, a party defendant to
the suit. The plaintiff had under the guise of the Court order carried out
illegal construction in the 'Housegalli' which was the common utility
land between two buildings and its access was required in emergency.
The Bombay Municipal Corporation had demolished the illegal structure
constructed by the plaintiff. The learned advocate of defendant relied
upon :
Dalip Singh vs. State of Uttar Pradesh And Others
(2010) 2 Supreme Court Cases 114
wherein it is observed by the Hon'ble Supreme Court that where the
litigant was dishonest and abused a process of law, he was not entitled
to any relief. It is thus contended that the plaintiff was in the habit of
carrying out illegal construction and thus deserves no relief and so the
Notice of Motion should be dismissed.
7. Heard both sides. Perused the roznama and documents on
record.
8. It is observed that the plaintiff in order to prove his
possession of the suit premises has relied upon number of documents. It
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is also not denied that the Bombay Municipal Corporation had
demolished structure of the plaintiff.
9. On perusing the order of the Hon'ble High Court dated
01.02.2016 in Appeal from Order No. 75 of 2015 it is seen that the
Hon'ble High Court has dealt in detail with all the contentions of the
plaintiff. The Hon'ble High Court has observed therein that the suit
structure was temporary in nature and was put up after the year 2005.
It is further observed that all the documents relied upon by the plaintiff
did not indicate that suit premises was a Pakka structure. Further, the
plaintiff expanded the temporary structure in the suit premises after
obtaining the adinterim order from the Court.
10. I place reliance upon the observations of the Hon'ble High
Court in order in Appeal from Order No. 75 of 2015. So it can be said
that plaintiff in the recent past has violated the statusquo order passed
in his favour and carried out illegal construction.
11. The plaintiff by this Notice of Motion is claiming possession
of the suit premises and seeks direction that his possession may be
protected.
12. As observed by the Hon'ble Supreme Court in Dalip Singh
(Supra), the plaintiff cannot be allowed to misuse the justice delivery
system. Further as observed by Hon'ble Supreme Court in Rame
Gawda (Supra) the person claiming possession should show in himself
or his predecessor a valid legal title, or probably a possession prior to
the possession of the other side. Thus, he should be able to raise a
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presumption prior in time. Thus it can be said that primafacie the
plaintiff herein has failed to show his valid legal possession of the suit
premises which, if any, was a temporary structure and has already been
demolished by the Bombay Municipal Corporation.
13. Thus considering the background of this case and the fact
that the plaintiff has not produced anything on record wherein any
equitable relief can be granted to him by this Court, I am of the opinion
that the Notice of Motion deserves to be dismissed. Hence, following
Order is passed :
ORDER
Notice of Motion No. 552 of 2018 is Dismissed.
(Dr. Srishty Neelkanth)
Judge
City Civil Court,
Gr. Bombay.
Date : 04.05.2018.
Dictated on : 04.05.2018.
Transcribed on : 07.05.2018.
Signed on : 08.05.2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
08.05.2018 at 12.35 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) DR(SMT) SRISHTY NEELKANTH
(C.R. No.02)
Date of Pronouncement of JUDGMENT/
ORDER
04.05.2018.
JUDGMENT/ORDER signed by P.O. on 08.05.2018.
JUDGMENT/ORDER uploaded on 08.05.2018.
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