Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.979/20 (L.C.S. No.871/20)
MHCC010026732020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.979 OF 2020
IN
LONG CAUSE SUIT No.871/2020
Ramalingam s/o. Narayan Padiachi … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai & 2 Ors. ... Defendants
Appearance :-
Mr. B. P. Shukla, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendant No.1/M. C. G. M.
None for defendants No.2 and 3.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 06/02/2024.
O R D E R
. This is suit for declaration that defendant No.3 is a
trespasser and has no right, title and interest over shop No.4, situated at
plot No.9, road No.K, Shivaji Nagar road No.2, more particularly
described in paragraph No.1 of the plaint and for perpetual injunction
restraining defendant No.3 from creating third party interest or parting
with possession in favour of any person and the plaintiff has taken out
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2 N/M. No.979/20 (L.C.S. No.871/20)
this Notice of Motion under Order-XXXIX Rule-1 of The Code of Civil
Procedure (in short the C. P. C.) for temporary injunction.
2] In short, it is case of the plaintiff that he is in use,
occupation and possession of suit structure since 1980. The plaintiff was
using suit structure as a public library in the name and style “Anna
Public Library” and the plaintiff is its secretary. It is further stated that
during the census carried out in 2000 application for issuance of photo-
pass and census certificate has been issued in the name of plaintiff. The
suit structure is in existence prior to the datum line of 2000. However,
on the basis of some false and frivolous complaints, Assistant Engineer,
M/East ward issued notice under Section 3Z-1 of The Maharashtra
Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971
on 19/9/2018. The plaintiff was not aware about necessity of filing
reply. Therefore, on 29/10/2018 Assistant Commissioner, M/East ward
of B. M. C. passed order of demolition of suit structure. The plaintiff
received the order and he immediately approached M/East office ward
and showed relevant documents and after going through it, concerned
officer assured that notice will be withdrawn and, accordingly, no action
is initiated.
3] The structure was old and required urgent renovation,
therefore, the plaintiff approached defendant No.2, a civil contractor
and after negotiation defendant No.2 agreed to carry out renovation of
suit structure. The plaintiff has paid Rs.3,40,000/- to defendant No.2.
The plaintiff is a senior citizen and was not keeping well hence as per
advise of doctor he had been to his native place. The plaintiff returned
in January 2019 and found that defendant No.3 alongwith one other
person was carrying on business in suit premises. The plaintiff
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3 N/M. No.979/20 (L.C.S. No.871/20)
questioned defendant No.3 as to how he is occupying suit premises, at
that that time, defendant No.3 told him that he is owner of suit
premises.
4] It is further stated that defendant No.2 without permission
and knowledge of the plaintiff inducted defendant No.3 in suit premises
though suit premises was entrusted to the defendant No.2 for carrying
out repairs. Then, the plaintiff lodged F. I. R. against defendants No.2
and 3 under Sections 420, 465, 467 and 471 read with Section 34 of
The Indian Penal Code for cheating and forgery. Defendant No.3 is a
trespasser and he has no right and interest over suit structure and there
is strong apprehension that he may create third party interest in suit
structure, therefore, defendant No.3 be restrained from creating third
party interest and Court receiver be appointed.
5] Defendant B. M. C. opposed Notice of Motion by filing
reply dated 3/10/2023 and denied contentions in Notice of Motion. It is
contended that the Civil Court has no jurisdiction to try and entertain
suit challenging order passed by Competent Authority under the Slum
Act as per the provisions of Section 42 of The Slum Act. It is further
stated that as per the Government of Maharashtra resolution dated
16/5/2015 defendant No.3 has applied for issuance of new photo-pass
and he has submitted application in respect of hut No. 9/K/4, Shivaji
Nagar, Govandi alongwith necessary documents and affidavit.
Therefore, after obtaining necessary approval from Assistant
commissioner, M/East ward a fresh photo-pass has been issued on the
name of defendant No.3. Defendant has followed due process. The
plaintiff is not entitled for any relief. Hence Notice of Motion be
dismissed.
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6] Defendant No.3 opposed Notice of Motion by filing reply
stating that the plaintiff has no right over suit structure. This defendant
is legal occupier and photo-pass has been issued by the Competent
Authority. Thus, defendant No.3 is a protected occupier. Defendant No.3
is carrying on business in suit premises. The allegations made by the
plaintiff are false and baseless. Photo-pass has been issued by
competent authority as per the Government resolution. Therefore,
Notice of Motion deserves to be dismissed with costs.
7] Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
8] Learned advocate for the plaintiff submitted that the
plaintiff is secretary of Anna Public Library and notice structure is in
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existence much prior to 1980. The plaintiff is having electricity bills,
census receipt, application for photo-pass to prove possession of
plaintiff and existence of structure. It is further submitted that structure
was very old and there was need to repair it, therefore, the plaintiff
approached defendant No.2, who is a civil contractor and after
negotiations defendant No.2 was assigned the work of renovation and
the plaintiff has paid Rs.3,40,000/-. It is further submitted that the
plaintiff was at his native place due to health problem and he returned
to Mumbai in January 2019 and noticed that defendant No.3 is
unauthorizedly occupying suit structure. Defendant No.3 told that he is
owner of structure and photo-pass is in his name. It is submitted that on
the basis of false and fabricated documents defendant No.2 inducted
defendant No.3 in suit premises. The plaintiff has lodged complaint at
Shivaji Nagar police station for cheating and forgery against both
defendants. However, there is possibility of creating third party interest
by defendant No.3 hence till decision of suit defendant No.3 be
restrained from creating third party interest and parting with possession
9] Learned advocate for the B. M. C. submitted that the
defendant No.3 applied for issuance of photo-pass in respect of suit
premises. It is further submitted that the Corporation has followed due
process and after approval issued photo-pass to defendant No.3. It is
further submitted that defendant No.3 was found in possession of suit
structure and, therefore, photo-pass has been issued as per the
Government policy. It is further submitted that the plaintiff has no right,
title and interest over suit structure.
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10] Neither the defendant No.3 nor his advocate remained
present when Notice of Motion was called for hearing, therefore, Notice
of Motion is decided without arguments of defendant No.3.
11] The plaintiff has taken out this Notice of Motion for
temporary injunction restraining defendant No.3 from creating third
party interest. The plaintiff came with a case that he was in use,
occupation and possession of suit structure since prior to 1980. In
support of this contention, the plaintiff has produced on record
photocopies of electricity bills issued by B.S.E.S. for 1983-84, 1988,
1991, 1998. These bills are in the name of Secretary, Anna Public
Library, plot No.9/K/4. It is important to note here that the plaintiff is
claiming that he is secretary of library but he has not produced
registration certificate of library or resolution of managing committee
showing that he is secretary of said library.
12] The plaintiff has produced on record letter dated 4/2/2020
issued by the Senior Colony officer, M/West ward to the plaintiff. In the
said letter, it is stated that the land on which suit structure is situated is
allotted Pitch Colony and suit structure was never allotted to the
plaintiff by the Colony Officer and record of allotment of suit premises
to the plaintiff is not available. Furthermore, since 1970 rent of hut has
not been paid and the plaintiff has not produced residence proof as per
the Government resolution dated 16/5/2015 and, therefore, the
plaintiff is not entitled for photo-pass as the plaintiff is not in
occupation of suit structure.
13] Defendant B. M. C. has produced on record correspondence
in respect of issuance of photo-pass to defendant No.3 alongwith
electricity bills, photographs, affidavits executed by the earlier occupiers
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of structure. On perusal of documents filed by defendant B. M. C., it
reveals that the Assistant Commissioner, M/East ward sanctioned
transfer of hut in the name of defendant No.3 on payment of transfer
fee and, accordingly, defendant No.3 has paid transfer fee and rent.
14] The plaintiff has not document showing payment of
Rs.3,40,000/- to defendant No.2 towards repair charges. On the
contrary, documents produced by defendant B. M. C. show that photo-
pass of suit structure has been issued in the name of defendant No.3.
The plaintiff has not produced a single document on record showing his
legal right and interest over suit structure. On the contrary, it appears
that photo-pass has been issued by the Competent Authority in the
name of defendant No.3. The plaintiff has alternate remedy by way of
appeal before the Competent Authority. The plaintiff without
challenging the order sanctioning transfer of suit structure filed suit and
seeking the equitable relief of injunction.
15] There is no pleading as to emergency or danger to property
or loss. The Court has discretion to appoint Court receiver if it is found
to be just. However, in absence of pleadings as to damage,
mismanagement and loss or without showing that there is urgent need
to take necessary steps to preserve and protect property the relief of
appointment of Court receiver cannot be granted. In the case on hand,
there is no pleading as well as material on record showing that
defendants No.2 and 3 are mismanaging the property or causing
damages to it. Thus, I hold that the plaintiff has not made out
prima
facie case. Balance of convenience does not tilt in his favour.
Accordingly, I answer points No.1 to 3 in the negative and in answer to
point No.4 pass following order :-
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O R D E R
Notice of Motion is dismissed.
Date : 06/02/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
12/02/2024 05:15 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 06/02/2024
ORDER Typed on 08/02/2024
ORDER signed by P. O. on 09/02/2024
ORDER uploaded on 12/02/2024
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