Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.794 OF 2020
(CNR No. MHCC010021922020)
IN
LONG CAUSE SUIT NO. 2319 OF 2017
Shiromani “A”Wing CHS Ltd. ...Applicants/
original defendants
In the Matter between
Veera Education Pvt Ltd. ... Plaintiffs
V/s.
(1) Municipal Corporation
of Greater Mumbai and Anr. ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI. RAJESH K. KHOMANE
CITY CIVIL COURT
GR. BOMBAY ( C.R.NO.06)
DATE : 12/07/2022
Adv. Mr. Rajesh Dedhia for the plaintiff.
Adv. Mr. Sandeep R. Jalan for the defendant no.2
Adv. Ms Meena Dhuri for the defendant/MMC.
ORAL ORDER
1. The defendant No.2 has taken out this notice of motion
under Order VII Rule 11 (a) of the Code of Civil Procedure for rejection
of plaint.
2. It is the contention of the defendant no.2 that this suit has
been filed in respect of the premises being garage admeasuring 10.07 X
8 meter made up of B.M. walls and slabs situated in Shiromani Tower
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''B'' wing, Rajkamal Studio Compound, Parel, Mumbai. Now, the
plaintiff has been using the same for its business purpose. The suit
premises is a garage/ parking space so, it constitutes the common area
of the Shiromani housing society. However, the plaintiff converted it in
to commercial purpose and running his business in it. The plaintiff has
claimed to be the absolute owner of the suit premises, purported to
have obtain the same from the developer of the Shiromani Building.
The suit premises is parking area /garage so, it cannot be lawfully
transferred to any person and law does not recognize any such transfer.
Therefore, the plaintiff can not acquire right in the suit premises.
So,the plaintiff has no cause of action to file the present suit. Hence,
this notice of motion has taken out by the defendant No. 2 for rejection
of plaint.
3. The plaintiff has failed to file reply to the notice of motion.
Hence, it has been proceeded without reply of the plaintiff.
4. The following points arise for my determination. I record my
findings thereon with reasons.
Points Findings
1. Whether the plaint disclose cause of action? Yes
2. What order? Notice of Motion
is dismissed.
5 Heard both the sides advocates. Learned advocate for the
defendant no.2. submits that the suit premises is parking space/garage.
Parking space constitutes the common area of the housing society. It
cannot be lawfully transferred to any person. However, the plaintiff is
claiming his ownership over the suit premises. But, the law doses not
confer any right on the plaintiff in respect of suit premises. The plaintiff
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has not placed on record any document to show his ownership over the
suit premises. Except, his bald statement there is nothing on record to
show the plaintiff's ownership over the suit premises. In support of his
argument he has relied on the case of K. S. Dhondy vs. Her Majestry
the Queen of Netherlands and anr. Reported in (2011 Vol3
Mh.L.J.128), in which the Honorable Bombay High Court has observed
that ''the cause of action can be ascertained on the basis of material
produced before the Court in the nature of documents as well as
averments in the plaint''. He has further placed his reliance on the case
of Tushar Guru Salien v/s. State of Maharashtra and Ors (Public
Interest Litigation No. 67/2017 decided on 28.08.2019), wherein it
has been observed by the Honorable Bombay High Court that
''concerning a property a suit to enforce or protect an interest in the
property which is governed by a Municipal Statute, the interest
protected has to be with respect to a plea that primfacie, the structure
which is being targeted is an authorized structure. Meaning thereby, the
plaint must make an averment of the sanction obtained from the
Corporation and must make an averment that the structure targeted is
primafacie governed by the sanction''.
6. I have considered the arguments of both the sides advocates, also
gone through the application and averments in the plaint. While
deciding application under Rule VII Order 11 of the Code of Civil
Procedure, the Court has to look into the averments of the plaint and
averments in the written statement. Order VII Rule 11 of the CPC deals
with the rejection of the plaint. For convenience, I reproduce the same
as under:
“Rejection of plaint: The plaint shall be rejected in the
following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued and the
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plaintiff , on being required by the Court to so correct
the valuation within a time to be fixed by the Court,
fails to do so;
(c) where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped
and the plaintiff, on being required by the Court to
supply the requisite stamppaper within a time to be
fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) whether the plaintiff fails to comply with the
provisions of rule9:”
7. From the plain reading of the above provisions it makes clear that
plaint does not disclose a cause of action, the relief claimed is under
valued and not rectified within time fixed by the Court, insufficient
stamped and not rectified within time fixed by the Court, barred by any
law, failed to enclose the required copies and plaintiff fails to comply
the provisions of Rule 9, the Court has no other option except to reject
the same. The court can exercise this power at any stage of the suit.
8. In the present suit, the plaintiff has challenged the validity of
notice dated 03.08.2017 issued by the defendant no.1/ MCGM under
section 351 of the MMC Act and speaking order dated 29.10.2017
passed by the Designated officer of the defendant/MCGM. It is pleaded
by the plaintiff that prior to development of the Shiromani Tower ''B''
wing the suit structure was in existence and formed the part of the
authorized and legal construction of Rajkamal Compound. M/s. Veera
and Gala Developers had acquireed suit structure under the
development agreement entered in to and executed by and in between
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M/s. Veera and Gala Developers and Rajkamal Kalamandir. Without
demolishing the suit structure Shiromani Building ''B'' wing was
constructed. M/s. Veera and Gala developers transferred the suit
structure to the plaintiff. Thereafter he became owner of the suit
premises. Thus,he is owner and in use, occupation and possession of the
suit premises. But defendant no.1/MCGM has issued notice u/s. 351 of
MMC Act alleging there in that the plaintiff has commenced
construction in the suit premises or change its user without the
permission of the competent authority.
9. From perusal of the pleading of the plaintiff it appears that the
plaintiff is challenging the validity of notice dated 03.08.2017 issued by
the defendant no.1/ MCGM under section 351 of the MMC Act. Thus,
the controversy around the user of the suit premises or its construction .
10. From the averments of the plaint it can be inferred that the
plaintiff is in possession of the suit premises. The defendant has not
challenged this contention of the plaintiff. The impugned notice and
speaking Order are under challenged. The plaintiff has specifically
contended in the plaint that the impugned notice and speaking orderis
not legal. Hence, from the such averments made in the plaint what it
appears that the cause of is issuance of notice dated 03.08.2017 and
impugned speaking order. Therefore, objection of the defendant no.2
that there is no cause of action to institute the present suit is not
convincing.
11. Next submission of the defendant no.2 that the suit premises is a
garage/parking space, it cannot be converted to business purpose and it
cannot be lawfully transferred. So far as this allegation is concerned, the
plaintiff has specifically contended in his pleading that he has sanction
plan. He is having documents relating to his ownership over the suit
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premises. The question about the legality of the construction of the suit
premises is a triable issue. This notice of motion has taken out for
rejection of plaint on account of no cause of action to file the present
suit. Thus, objection inrespect of legality of the impugned notice can not
be decided in this notice of motion.Therefore, the present notice of
motion deserves to be rejected. Hence, I pass the following order
ORDER
1. The Notice of Motion No.794/2020 is dismissed.
2 The Notice of Motion No.794/2020 is disposed off.
(Rajesh K. Khomane)
Date12/07/2022 AdhocJudge,City Civil Court,
Gr. Bombay .
Dictated on :12/07/2022
Typed on : 12/07/2022
Signed on : 22/07/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26/07/2022 03.00 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. K. Khomane (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
12/07/2022
JUDGMENT/ORDER signed by
P.O.on
22/07/2022
JUDGMENT/ORDER uploaded on 26/07/2022
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