Final Order 1

Order Details: Other
Pdf Text: 1 T. A. 66/19
IN THE BOMABY CITY CIVIL COURT AT BOMBAY
Transfer Application No.66of 2019
In
L.C. Suit No.526 of 2015
Shyamnarayan Sursati Saroj ..Applicant/Plaintiff
V/s.
The Municipal Corporation of
Gr.Mumbai ..Respondent/Defendant
Coram : H.H.THE PRINCIPAL JUDGE
SHRI V.G. BISHT
Dated : 25th April,2019
(C.R.No.19)
Advocate Mr.S.B. Singh for applicant.
Advocate Mr.Vikrant Parshurami for respondent.
O R A L O R D E R
Read application supported by affidavit. Read affidavit in
reply (Exh.2) of the respondent/defendant. Perused.
2 It appears that the applicant/plaintiff has filed L.C. Suit
No.526/15 against respondent/defendant which is pending in C.R. no.8.
On 26th February,2015The Learned Judge passed the injunction order in
his favour and directed the respondent/defendant not to demolish the suit
structure. However, the respondent/defendant demolished the suit
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structure on 16th October,2018. The applicant therefore, filed Notice of
Motion No.9874/18 on 20th October,2018 for compensation. Again, the
Learned Court passed an order on 20th October,2018 in his favour and
protected the suit premises from the respondent/defendant and the said
order continued till 13th February,2019.
3 The applicant/plaintiff alleges that the court of C.R. No.8
came to be manipulated by the MMC and neighbouring builders. Even a
contempt Notice of Motion came to be filed by him against the MMC and
others on 24th October,2018. The concerned court so far has not passed
any order in the said contempt Notice of Motion against the defendant and
its officers.
4 According to the applicant, the concerned court is not working
with clean hands and therefore, the applicant would not get any further
relief from the said court. Hence this application.
5 The respondent/defendant, on the other hand, vehemently
opposed the contentions and contended that the concerned court passed
order on 22nd October,2018 directing the applicant/plaintiff to remove his
belongings and further directed respondent/defendant not to stop the
applicant/plaintiff from removing his belongings from the suit premises.
The said directions are abided by the defendant. On 13th February,2019,
during the course of arguments, when it was pointed out to the court that
the applicant/plaintiff has not complied with the order of the court dated
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22nd October,2019 and till date has not removed his belongings from the
suit premises and has stalled the road widening project in the area, the
court further gave eight days time to remove the belongings from the suit
premises and also directed respondent/defendant not to prevent the
applicant/plaintiff from doing so. The interim protection was continued
upto 21st February,2019. Despite that the applicant/plaintiff failed to
comply the directions. The court did not extend the interim protection any
further.
6 Since the application is misconceived, untenable and
unsustainable, the same is liable to be dismissed with heavy compensatory
costs, concluded respondent.
7 Mr.S.B. Singh, learned counsel for the applicant/plaintiff,
submitted that the respondent/Corporation has acted arbitrarily in
defiance of the court order and illegally demolished the suit structure
thereby causing applicant irreparable loss. The learned counsel then
assailed the approach of the court wherein the suit is pending and pointed
out that despite the Notice of Motion pending in respect of damages and
contempt, the respondent/Corporation and others interested builders
manipulated the court and even sufficient time was not given to the
applicant by the concerned court, which is apparent from the court. In
such circumstances, according to learned counsel, the applicant
apprehends that he would not get justice from the court and, therefore, the
suit deserves to be transferred to any other court.
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8 Mr.Vikrant Parshurami, learned counsel for the respondent, on
the other hand, invited my attention to the roznama filed on record and
vehemently submitted that the learned court has acted in accordance with
law and there being no merit in the application, the same deserves to be
dismissed with costs.
9 I have gone through the copies of roznama filed on record by
applicant. It is clear from the roznama dated 26th February,2015 that by
way of an adinerim injunction, the respondent/defendant was restrained
from demolition of suit structure till next date and this order continued
upto 19th October,2018. However, it appears that during the course of
operation of interim order, the respondent/defendant allegedly flouted the
order of interim injunction and therefore, the applicant filed Notice of
Motion 3965/18. This is apparent from the roznama dated 20th
October,2018. On the said date, the learned Judge further directed
defendant/Corporation not to obstruct the plaintiff from taking his
belongings alongwith coal material from the area where the suit premises
is situated.
10 Roznama dated 13th February,2019 is very much relevant for
the purposes of present application. The learned Judge observed that the
plaintiff was given sufficient opportunity of more than three months to
take away his belongings but that was not done so and therefore, learned
Judge thought it proper not to extend the said order dated 20th
October,2018 for a long time. Still the learned Judge granted eight days
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time to plaintiff to take away his belongings and the matter came to be
posted on 21st February,2019. It appears that on 21st February,2019 the
learned counsel filed an application (Exh.17) seeking direction that he be
not dispossessed with articles from the suit premises space. The learned
Judge rejected the application by observing that the sufficient opportunity
was given to the applicant to remove his articles.
11 From the above, it is more than clear that the learned Trial
Judge had given more than sufficient opportunity to the applicant to
remove his articles from the suit premises inasmuch as the defendant had
already demolished the suit structure. A separate Notice of Motion
regarding damages and contempt are already pending. In the
circumstances, it cannot be said that the learned Trial Judge acted in a
biased manner.
12 The other grievance of the applicant is that the defendant/
Corporation with the help of neighbouring builders has managed the court.
Except bald allegations, there is nothing on record to substantiate the
same. No concrete material is brought on record to draw adverse inference
about functioning of the court in question.
13 In view of above, in my considered view, the application lacks
bonafide and is therefore, not acceptable.
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14 For the aforesaid reasons, I pass following order:
O R D E R
T.A. No.66/19 stands rejected.
25/04/2019 (V. G. BISHT)
Principal Judge,
Gr. Bombay.
Dictated on : 25/04/2019
Transcribed on : 25/04/2019
Signed by HHJ on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 26/04/2019 (3.00 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 25th April,2019
Order signed by P.O. on 26th April,2019
Order uploaded on 26th April,2019
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