Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1067 OF 2019
MHCC010027942019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.1067 OF 2019
IN
IN L.C. SUIT NO. 1805/2017
M/s. Traffic Lite Business Park Premises
Cooperative Society Ltd. … Plaintiff
Versus
Mrs. PushpaJivraj Shah and others. ... Defendants
Appearance :
Adv. Mr.Sameer Bhandari for plaintiff.
Adv. Sunil Mishra for defendant no.1 to 9
Adv. Mrs.Rawade for MCGM/Defendant no.10.
CORAM : H. H. J. SHRI. S. H. SALUNKHE
Court Room No. 4.
DATED : 23/06/2022.
O R D E R
The plaintiff has taken out this notice of motion under Order XXXIX
Rule 1 of the Code of Criminal Procedure, 1908 (in short 'C.P.C.')
2. Brief facts of the case as under :
Plaintiff is a Cooperative Housing Society registered under the
provisions of Maharashtra Cooperative Societies Act. The plaintiff society
compromises of 33 members and it is located on plot of land bearing C.T.S.
No. 2739 to 2753, situated at M.G. Road, near Bank of Baroda, Ghatkopar
(West), Mumbai 400 086.
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3. Defendants nos.1 and 3 are members of the plaintiff society and having
shop no.1 and 2 respectively on the ground floor facing to the main road i.e.,
M.G. Road. Defendant no.10 is MCGM. Defendant no.2 is the occupying shop
no.1 and defendant no.4 to 9 are the partners of the defendant no.3 firm.
Defendant no.2 is carrying on business of Imitation Jewelery and Ladies
Purses in the name and style M/s. M/s. Jodia NX and defendant no.3 is
carrying on business in the name and style of M/s. Shivraj Shopping Mall in
their respective shops. Further it is contended that defendant no.1 and 3
encroached upon the open space in front of their shops i.e., common area,
belonging to plaintiff society. Due to the said illegal acts of the defendant no.1
to 9 the entire front of the building has been blocked and it causes hindrance
for smooth ingress and egress of the member of society and other public.
Defendant no.1 to 9 encroached open common passage and thereby causing
inconvenience to the members of the society.
4. Defendant no.1 to 9 have no right/authority to store/sell their goods,
stock and material etc., on common open space of the society. They have no
right to obstruct ingress and egress of other members of the society. The
plaintiff society has made efforts to remove goods and materials of the
defendants from common passage but its effort were futile. Therefore plaintiff
filed this suit for permanent injunction restraining defendant no.1 to 9 from
storing/selling their material/goods/articles in common space of the suit
premises and restraining defendant no.10 for granting permission for
monsoon shed and storing goods. The plaintiff taken out this notice of motion
for temporary injunction restraining defendants no.1 to 9 from storing/selling
goods/material/articles open common space/common area of the plaintiff
society and restraining defendant no.10 Corporation MCGM from granting
any permission for putting monsoon shed in the common space passage
outside the shop of premises of the defendant no.1 to 9. If the temporary
injunction is refused plaintiff society will suffer irreparable loss or damages,
which can not be compensated in terms of money. The balance of conveyance
is in favour of the plaintiff society. Therefore, notice of motion be made
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absolute.
5. Defendant nos.1 to 9 opposed the notice of motion by filing written
statement cum reply to notice of motion. They denied contention in the plaint
as well as notice of motion. It is contended that cars of the members of the
plaintiff society are parked in the open space in front of their shops. There are
two separate gates for ingress and egress which are guarded by security
guard/watchman. As such, there is no question of any objection or obstruction
on the part of defendants to ingress and egress the members of plaintiff
society. The entrance and exist of society is narrow and both lanes should be
kept vacant. However Chairman of the plaintiff society parks his car in
narrow lane and made false allegations against defendants. Open space
required for purpose of fire brigade, vehicle and/or ambulance is locked by
illegal parking of the customers, clients and society members. The defendants
are carrying out their lawful business in their respective premises. The
defendants are not claiming exclusive rights over open and common space.
Defendants requested plaintiff for permission to use part of open space and
they are ready to pay lawful charges. However plaintiff kept harassing
defendants with view to extort money from them. The open space is used for
purpose of loading and unloading goods and for purposes permitted under
law. The entry to other members of upper floor is from lobby at backside of
the building.
6. It is denied that defendants blocked entrance of the building. It is
denied that defendants blocked compulsory open space/passage. They have
not blocked open space and caused any in convenience for smooth ingress
and egress of the society members. False and baseless allegations are made
by the plaintiff. The defendants have not restricted movements of any
members of the plaintiff society and also have not made encroachment upon
open space/compulsory open space. The defendants are using area
appurtenant to the said shops for loading and unloading of the products. The
balance of conveyance is in favour of defendants and no harm or prejudice
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would be caused to the plaintiff, if they are permitted load and unload their
products. If the temporary injunction has prayed is granted, irreparable loss or
harm will cause to the defendants. On these grounds defendants prayed for
dismissal of notice of motion.
7. On the basis of pleadings, following points arises for my determination,
I have recorded my findings thereon for reason to follow:
Sr.
No.
P O I N T F I N D I N G S
1. Whether the plaintiff has made out
prima facie case ?
. . .
Yes.
2. Whether the balance of conveyance
lies in favour of the plaintiff ?
. . .
Yes.
3. Whether the plaintiff would suffer
irreparable loss if the temporary
injunction is refused ?
. . .
Yes.
4. What Order ? . . . Notice of Motion is
partly allowed.
REASONS
AS TO POINT NO.1 TO 3:
8. The learned counsel for the plaintiff submitted that the plaintiff is
Commercial Cooperative Society and defendant no.1 and 3 are
occupiers of shop no.1 and 2, which are situated at the front side of the
building attaching to the main road. Defendant no.1 and 3 are running
business in their respective shops. However they made encroachment
open common passage/ common area as shown in rough sketch Exh.B
attached to the plaint and thereby causing obstructions or nuisance to
the members of society and public. Ld. counsel further submitted that
the common areas shall be compulsorily kept open and it cannot be
used by any individual member. Learned counsel further submitted that
the defendants stored or kept articles goods in open areas and thereby
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causing nuisance and obstructions. Therefore they may be restrained
from storing/keeping goods and material in common passage.
9. Per contra learned counsel for the defendants submitted that
defendants are not keeping or storing articles, goods in open space and
not causing any disturbance or nuisance. The office bearers of the
plaintiff society are parking their vehicles in the narrow gate of the
society and causing obstructions. The defendants requested the plaintiff
society for permission to use open space adjacent to their shops and
ready to pay the charges. However defendants society refused for the
same. Learned counsel for the defendants submitted that plaintiff filed
false suit and notice of motion. The plaintiff has no case hence notice of
motion may be dismissed.
10. The plaintiff has taken out this notice of motion under Order
XXXIX Rule 1 of the C.P.C. for temporary injunction. It is well settled
that the grant or refusal to grant injunction is covered by three well
establishment principle i.e., (i) Whether plaintiff has made out prima
facie case. (ii) Whether plaintiff would suffer irreparable injury AND
(iii) The balance of conveyance lies in his favour
11. Burden to prove these three requirements is one the person
seeking injunction. For granting injunction the plaintiff has make out
prima facie case. It is the contention of the plaintiff that defendant no.1
to 9, who are running their business in their respective shops are
causing obstructions to the common passage or common areas i.e.,
defendants are causing obstructions to their right of way or causing
obstructions for ingress and egress of the member of society by
keeping/storing goods and articles in common space at the front side of the
building. In support of this allegations, the plaintiff has produced on record
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photographs at Exh.C and rough sketch Exh.B. It is not disputed that
defendant no.1 to 9 are occupiers of shop no.1 and 2 and running their
business. It is grievance of plaintiff that due to storing or keeping
goods/material in the open space, they are causing obstructions to the
plaintiff and their members. The defendants have denied the allegations
against them. The plaintiff and their members of the society have right to use
the common passage. The common passage shall be kept open for use of the
members of the society. No any member of the society cause any obstructions
by keeping goods or material in the common areas or open space. The
common areas are compulsorily kept open for the use of members of the
society and common people. The individual member or occupier cannot be
allowed to cause any obstructions to the member of the society by keeping
any goods/material/articles in common areas. On perusal of the documents
i.e., rough sketch Exh.B and photographs at Exh.C, it prima facie appears that
the defendants are keeping their goods/articles in common area/common
space in front of their shops. The act of defendants keeping the goods in
common passage certainly causes obstructions to the members of the society.
12. The plaintiff society is seeking temporary injunction against defendant
no.10 MCGM restraining it from granting permission to defendant no.1 to 9
for putting monsoon shed or storing articles. It is not case of the plaintiff
society defendant no.10 Corporation has illegally granted permission for
putting monsoon shed or storing articles to defendant no.1 to 9 in violation of
the rules. In such circumstances temporary injunction as prayed cannot be
granted against defendant no.10.
13. In view of discussions above made I hold that plaintiff has made out
prima facie case. Thus balance of conveyance lies in favour of the plaintiff. If
the temporary injunction is refused plaintiff and its members would suffer
irreparable loss. The plaintiff has made out case for grant of temporary
injunction as prayed. Accordingly answer point no.1 to 3 in the affirmative
and in answer to point no.4 I pass following order.
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ORDER
1. Notice of Motion No. 1067 of 2019 is partly allowed and made
absolute in terms of prayer clause (a) to the notice of motion.
2. Defendant no.1 to 9 or their agents, servants and representative or any
person on their behalf are temporarily restrained from storing
/keeping/goods/material/articles in front of their respective shops which will
caused obstructions to the right of way of the plaintiff members for ingress
and egress from the suit building to main road, till decision of suit.
3. Prayer (b) of the Notice of Motion is rejected.
4. Notice of Motion No.1067 of 2019 is disposed of accordingly.
5. Costs in cause.
Date : 23/06/2022 ( S. H. SALUNKHE )
Adhoc Assistant Sessions Judge,
Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
24/06/2022 01:25 p.m. V.N. Rajgole.
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 23/06/2022
ORDER signed by P.O. on 24/06/2022
ORDER uploaded on 24/06/2022
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