Order 2

Order Details: Notice of Motion
Pdf Text: MHCC010028632018
Presented on : 23-02-2018
Registered on : 23-02-2018
Decided on : 31-01-2026
Duration : 07 Y, 11 M, 08 D
IN THE BOMBAY CITY CIVIL COURT AT GR. BOMBAY
NOTICE OF MOTION No.759 OF 2018
IN
L.C. SUIT No.559 OF 2018
Mohammed Yahya Yusuf Sayani @ M.Y.
Sayani
)
) .. Plaintiff
V/s.
The Municipal Corporation of Greater
Bombay and Anr.
)
) .. Defendants
Appearance :
Ld. Adv. S.S. Redekar for plaintiff.
Ld. Adv. Sangita Honmane, for defendants/MCGM.
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE R. S. ARADHYE
CITY CIVIL COURT, GR.
BOMBAY (C.R. No.05)
DATE : 31/01/2026.
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O R A L O R D E R
By this notice of motion plaintiff has asked for the relief of
temporary injunction against defendants/MCGM that they be restrained
from acting upon the impugned notice Dtd.25/01/2018 issued under
Section 351 of MMC Act, 1888 and consequent speaking order
Dtd.05/02/2018 in respect of demolition/removal of notice
structure i.e. (i) 2.9m x 4.25m x 2.65m (height), (ii) 2.51m x 2.26m
x 2.65m (height), (iii) 3.60m x 2.40m x 2.65m (height) which is
part and parcel of the office of plaintiff situated at the Care of A. A.
Shah's IAS Institute, Unit No.10-A Gurukripa, Bahubali Building,
Cawasji Patel Street, Fort, Mumbai 400 001. I have gone through the
affidavit in support filed by the Constituted Attorney of plaintiff namely
Mohd. Mudassir Bootwala and reply as well as additional affidavit in
reply of the defendants/MCGM to this notice of motion.
2. It is the case of plaintiff that he is an advocate by profession
and doing it in the office situated at A.A. Shah's IAS Institute, Unit
No.10A, Gurukripa, Bahubali Building, Ground Floor, 17-G, Cawasji
Patel Street, Fort, Mumbai-400 001 which originally belongs to landlord
namely Jain, Shah and Purohit. However, the said office Unit No.10A
obtained by his first degree cousin namely Ahmed Terai and his son
Esmail Terai on monthly tenancy basis. It is further the contention of
plaintiff that his cousin and his son both have allowed him to use and
occupy the said office for the professional work and in that regard
executed an affidavit in the month of April, 2013 in his favour for
producing the same before the Hon'ble High Court in support of the
affidavit in reply to be filed by the plaintiff in Writ Petition
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No.3571/2013. The said suit was filed by one Mr. Govind V. Naidu and
Sampat Naldu in respect of their hut situated just outside of the office
premises of the plaintiff and he was allowed to be implicated as a party
defendant in the said suit vide order passed in Chamber Summons
No.651/2013. It is therefore, the submission of plaintiff that what are
the changes he made in the office premises that is the glass partition
and thereby created three small chambers for the smooth professional
working and nothing else. The legal submission is concerned as per the
plaintiff Section 337 and 342 of MMC Act, 1888 does not prescribe any
permission which is to be obtained from the Municipal Corporation for
such a tenantable repairs. In this scenario lastly plaintiff has prayed that
notice of motion be allowed in view of clause (a) of the motion.
3. Defence of defendants/MCGM is that in view of Section
515-A and 527 of MMC Act, 1888 suit is not tenable in eyes of law for
want of issuance of notice under said Section and lack of jurisdiction to
this Court to try and entertain this suit. Besides this, one more legal
objection is taken by the defendants/MCGM that in view of Order 7
Rule 3 of Civil Procedure Code, 1908, in the plaint plaintiff has failed to
give detail description of the property sufficient to identify it, so on this
count also suit is liable to the dismissed with costs.
4. The officers of defendants/MCGM have inspected the site
on 25/01/2018 and found unauthorized erection of three numbers of
cabins using plywood/glass partition and therefore, notice was issued
under Section 351 of MMC Act, 1888 to the plaintiff for showing its
legality and authorization. However, by considering the reply and
documents placed by the plaintiff, reasoned speaking order was passed
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on 05/02/2018 and same is binding upon the plaintiff. In nutshell it
is the contention of defendants/MCGM that whatever the changes
have been made by plaintiff in the office premises Unit No.10-A does
not come under the category of tenantable repairs because in the
name of partition he has changed the overall structure of the
premises and made permanent division. At last defendants/MCGM
by producing the photographs on record tried to show that
Corporation has already initiated action of demolition and
completed it partly. With this defendants/MCGM have asked for the
dismissal of notice of motion with costs.
5. The following points arise for consideration and my
findings thereon with the reasons are as under;
Sr. No. POINTS FINDINGS.
1. Whether the plaintiff proves that he has
made out a prima facie case as alleged? -No-
2. Whether the plaintiff proves that balance
of convenience is also lies in his favour as
alleged?
-No-
3. Whether the plaintiff proves that if the
interim relief of temporary injunction is
refused, he will suffer irreparable loss?
-No-
4. What Order ? Notice of Motion
is dismissed.
REASONS
As to Point No.1 to 3:-
6. The rent receipts placed on record by the plaintiff clearly
shows that his cousin namely Ahmed Terai and his son Esmail Terai are
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the tenants of premises Unit No.10-A. On the basis of rent receipts
issued in their names for the period April, 2016 to March, 2017
accordingly, their names come on the record of electricity bills. The
status of plaintiff is concerned, it is his contention that their cousins
Ahmed Terai and his son Esmail Terai have allowed him to use and
occupy the said office premises for professional work. It means plaintiff
is neither the landlord nor tenant of the premises Unit No.10-A. It is
pertinent to note that on the ground of locus standi of plaintiff the
Predecessor of this Court by taking the base of circular of Municipal
Corporation of Mumbai Dtd.20/12/1986 ad-interim relief was rejected.
Against which plaintiff has knocked the doors of Hon'ble High Court by
filing Appeal From Order No.136/2018 (Appeal From Order Stamp
No.4974/2018) with Civil Application No.182/2018 (Civil Application
Stamp No.4987/2018 in (Appeal From Order Stamp No.4974/2018. By
considering the structure means creation of three cabins by using the
glass partitions order of refusal of ad-interim protection
Dtd.14/02/2018 was pleased to set-aside and ad-interim protection is
granted in favour of the plaintiff.
7. Plaintiff has also relied upon the Judgment in a case Radha
Vithal Shetty, through PoA Vishwanath V. Shetty Vs. Municipal
Corporation of Greater Mumbai & Ors., Appeal From Order St.
No.18832/2017 with Civil Application St. No.18834/2017 in which the
Hon'ble Parent High Court has granted interim protection in a similar
type of case by observing that “
notice only refers to the internal
partitions. These partitions do not add to the built up area and have no
impact whatever on the FSI consumption. The proviso to Section 43 of
the MRTP Act, 1966 will also apply, making it unnecessary to seek
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permission for such non-load bearing internal partitions, which are
meant only to optimise the existing internal space usage. If the plaintiff
has attempted a horizontal extension, however, that is another matter
altogether”.
8. I have gone through the circular Dtd.20/12/1986
No.CL/82966/Buildings issued by Bombay Municipal Corporation
having the sub-title as permission for putting up partitions necessary
where separate tenancy to be created. I re-produced the entire contents
of that circular as it is for the reference “
It was decided by M.C. at a Co-
ordination Committee meeting that in case where premises are in the
occupation of one owner and where the said premises are used for
office purpose only there would be no objection to internal dividing
partition or partitions being construction with glazed shutters so as to
form a cabin or cabins for office use. No permission/plan in such cases
would be necessary. In cases, however, where separate tenancy or
tenant are to be created and / or where accommodation is to be used
for non-office purposes, necessary permission for such partition /
partitions would be necessary and the required plans will have to be
demanded from the parties concerned”.
The photographs of the notice structure placed on record
evidently shows that in the name of glass partition plaintiff has
erected or changed the entire structure which divided into 2-3
rooms or chambers. Some photographs further shows that
defendants/MCGM have initiated the action of demolition and took
some portion of the unauthorized structure. Therefore, taking into
consideration the scope of circular referred above, it is the fact that
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plaintiff is simply occupied the premises for his professional work
without acquiring any legal status and whatever the structure
created, I think it is in permanent nature not comes under the
category of tenantable repairs, so come to the conclusion that there
is total failure on the part of plaintiff to establish the prima facie
case and balance of convenience lies in his favour and when this is so
there will be no question sustaining of any irreparable loss. With this I
have answered point No.1 to 3 in the negative and for point No.4, in the
result following order is passed.
O R D E R
Notice of Motion No.759/2018 is hereby dismissed and stands
disposed of accordingly.
(Pronounced in open Court)
Date : 31/01/2026. (R. S. Aradhye)
Judge, City Civil Court,
Gr. Bombay (CR.5)
Dictated on : 31/01/2026
Transcribed on : 31/01/2026
Checked on : 31/01/2026
Signed on : 02/02/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
03/02/2026 01.50 p.m. Sanjay Baliram Kaskar
(Stenographer Grade-I)
Name of the Judge H.H.J. Shri. R.S. Aradhye
(C.R. No.5)
Date of Pronouncement of
Judgment/Order.
31/01/2026
Judgment/order signed by P.O on 02/02/2026
Judgment/order uploaded on 03/02/2026
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