Order 1

Order Details: Notice of Motion
Pdf Text: N/M 662.18 in C.C. in Su 90/18 1/3 Date : 7.12.2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CNR No. : MHCC010025122018
NOTICE OF MOTION NO.662/2018
IN
COUNTER CLAIM
IN
SUIT NO.90/2018
Ashok Manibhai Patel ]...Plaintiff (org. defendant)
V/s.
Shardaben Purshottam Patel & Anr. ]… Defendants (org. plaintiffs)
Adv. Vaid for plaintiffs in suit.
Adv. Bhadang for defendant in suit.
CORAM : HHJ Shri G. R. Agrawal
C. R. No.03
DATE : 7.12.2018
ORDER
(Dictated in open court)
By this notice of motion, the plaintiff in Counter claim is seeking
appointment of Court Receiver with direction to remove original
plaintiffs from the suit rooms together with their articles and belongings
to facilitate the demolition of suit building. The defendants in Counter
claim/original plaintiffs have filed their reply to the motion.
2. Heard Ld. Counsel for parties. Perused the record.
3. It is urged on behalf of the plaintiff in Counter claim that the suit
building was constructed some time prior to 1950 and it requires
reconstruction. It is urged that the building is not in sound and
habitable condition. The plaintiff in Counter claim proposes to
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demolish the building and he has submitted the plans to Corporation for
approval. The plaintiff can apply for Commencement Certificate only
upon demolition of building. He further submitted that the plaintiff is
ready to provide temporary accommodation to the defendants in
Counter Claim subject to the result of the present suit. It is therefore
submitted that the appointment of Court Receiver is just and necessary
in the Counter claim.
4. As against this, the Ld. Counsel for defendants in Counter claim
has urged that there is no material on record to show that the suit
building is in dilapidated condition. He submitted that the plan was
got sanctioned from Corporation without obtaining NOC of defendants.
He invited my attention to the photographs filed by him and submitted
that the suit premises is in good condition. He therefore, prayed that
the motion be rejected.
5. Considered the submissions made by both sides. The main prayer
in the Counter claim is for permanent injunction to restrain the
defendants from entering upon and / or remaining upon the suit
property and for mandatory injunction against defendants to remove
themselves from the suit rooms along with their articles and belongings.
A perusal of the prayer made in the present motion shows that it is
identical to the prayer made in the Counter claim. Granting the prayer
made in the present motion would tantamount to grant of final relief in
Counter claim at interim stage. On this ground alone, the motion is
liable to be rejected.
6. The Ld. Counsel for defendants in Counter claim has rightly
submitted that there is no material on record to primafacie show that
the suit building is in dilapidated condition and that it requires urgent
repairs. Merely because the building was constructed some time prior to
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1950, that itself cannot be a ground for demolition of the suit building.
It is pertinent to note here that in the original suit, the plaintiffs have
prayed for permanent injunction to restrain the plaintiff in Counter
claim from forcibly dispossessing them from the suit premises without
following due process of law. The photographs filed by defendants in
Counter claim primafacie show that the suit building is in good
condition.
7. It is well settled that the power to appoint Court Receiver has to
be exercised sparingly and in extraordinary circumstances. In the case of
Mulji Umershi Shah vs Paradisia Builders, AIR 1998 Bom 87, Hon'ble
Bombay High Court has considered the issue of appointment of court
receiver and held thus :
“In my view, in suitable cases, the Court is not powerless to pass
appropriate order for appointment of receiver without any
application by any of the parties while rejecting the application
for temporary injunction. Such power of course has to be
exercised sparingly and in exceptional cases where dismissal of
an application for grant of temporary injunction may lead the
parties to take law in their own hands and use their own
devices either for protection of unlawful possession of recent
origin or for gaining possession or such like circumstances.
There is no impediment put by the Code of Civil Procedure in
passing such order to prevent the ends of justice being defeated.
Such order may be imminently required to be passed also so
that possession may be made over to that party who is prima
facie entitled to possession but is deprived by unlawful conduct
or illegal act of the other party...”
In the present case, the plaintiff in Counter claim has himself made a
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statement before the Hon'ble High Court in Appeal from Order
no.482/2018, that he does not intend to remove the original plaintiffs
from suit premises by using illegal force and would not obstruct them,
without following due process of law. Therefore the plaintiff in counter
claim cannot take advantage of order dated 2.5.2018 passed in Notice of
motion no. 4489/2017 by this Court.
8. In the facts and circumstances of the case, there is no ground to
appoint Court Receiver and direct original plaintiffs to vacate the suit
premises. Hence, following order.
ORDER
Notice of motion no.662/2018 is dismissed.
(G. R. Agrawal)
Judge
City Civil Court,
Date : 7.12.2018 Gr. Bombay.
Dictated on : 7.12.2018
Transcribed : 11.12.2018
Signed on : 11.12.2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
11.12.2018 at 5.30 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
7.12.2018
JUDGMENT/ORDER signed by
P.O. on
11.12.2018
JUDGMENT/ORDER uploaded
on
11.12.2018
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