Final Order 2

Order Details: Notice of Motion
Pdf Text: 1
MHCC010029632021
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 928 OF 2021
IN
L.C. SUIT NO. 664 OF 2021.
Mohd. Salim Javed Akhtar Siddiqui. … Plaintiff
Versus.
The Municipal Corporation of Greater Mumbai. ...Defendant
CORAM : JAYDEO Y. GHULE
AD-HOC ADDL. SESSIONS JUDGE,
CITY CIVIL COURT,
COURT ROOM NO. 11.
DATED : 24.07.2026
Appearances :
Ld. Adv.Mr. Rajesh Singh for the plaintiff.
Ld. Adv. Mr. Botlawar for the defendant/MCGM.
CLAIM:- FOR TEMPORARY INJUNCTION U/S. 39 RULE 1 AND 2 OF
THE CIVIL PROCEDURE CODE.
ORDER
1. In the notice of motion plaintiff has sought temporary relief of
injunction restraining the defendant from demolishing/pulling
down/removing the property viz. Gala no.2, area adm. About 1500 sq.
ft. ground plus mezzanine, lying and situate at Nandijyot Industries
Estate, old CTS No.770(Part), MTNL, Kurla -Andheri Road, Sakinaka,
Kurla (West), Mumbai 400072, is owned and possessed by the plaintiff
(suit premises).
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2. The plaintiff further submitted that the suit property was
originally owned and possessed by the legal heirs of erstwhile owner
Domnic Mathes Borges (Duming). The suit premises has conveyance
the larger portion area adm. About 220 sq. mtr. The previous occupier
Smt. Shakeela Nasibdar Ansari, who has sold and assigned the suit
premises has conveyed the larger portion area adm. About 220 sq. mtr.
Thereafter vide indenture of conveyance deed dated 28.12.2007 the
plaintiff and his brother Mohd. Asim Javed Aktar and Mohd. Salim
Javed Aktar have acquired the ownership of the said suit property. As
per the ownership they acquired the property for business. Accordingly
the 7/12 extract of the suit property were also reflect the name of
plaintiff. The plaintiff also obtained the establishment certificate,
received the electric bills, water bills. Thus, they have possessed the suit
property as a owner and possessor without interference of third party.
3. Plaintiff further state that, since the part portion of larger
property was affected in road widening and accordingly the MMRDA,
pursuant to the notice under section 299 of the MMC Act, 1888, dated
21.04.2006, has issued on the name of previous occupier, and
accordingly by possession letter dated 15.06.2006. The MMRDA has
taken the possession of the part portion of the larger property with
agreeing to grant benefit of FSI/TDR in lieu of possession handed over
to MMRDA.
4. The plaintiff has been served with the impugned notice dated
02.02.2021 issued u/s. 354-A of MMC Act, alleging therein
unauthorized extension of the suit premises. The plaintiff has replied
the same on 03.02.2021. However, without considering the said reply,
the defendant has passed in impugned order dated 05.02.2021
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5. The plaintiff submitted without any previous intimation the
defendant issued notice under section 354A of the MMC Act. The notice
is against the law. On the basis of illegal notice the defendant is trying
to demolish the suit property . Therefore, there is an apprehension of
causing irreparable loss which cannot be count in money. The plaintiff
has balance of convenience and prima facie case in his favour. Hence
they lastly submitted that the interim injunction be granted in his
favour by directing the defendant to restrain pulling down demolishing
or removing the suit property.
6. The defendant filed their reply and submitted that the plaintiff
has served the copy of notice within time. As per the law, the statutory
notice prior to filing the suit is must. The plaintiff has not given notice
under section 527 of the MMC Act, to the defendant, without intimation
suit is filed. The suit is filed which is not maintainable in the eye of law.
The act of the defendant is within the preview of law as per section
354(A) of the MMC Act. The plaintiff has no any prima facie case and
balance of convenience in their favour. Therefore, the claim of the
plaintiff is against the law, it is not maintainable. The defendant follow
the due process of law. The speaking order was also passed on
05.02.2021 and 17.02.2021. Therefore the notice of motion for interim
order is not maintainable.
7. Heard, both the sides. Perused the documents filed alongwith the
suit and notice of motion. The notice was also given to the plaintiff, the
speaking orders were also passed on 05.02.2021 and 17.02.2021.
8. Considering the record and proceeding, the point for
determination, along-with my findings and the reasons therefore, are as
under :
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Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out prima
facie case in his favour? No.
(ii). Whether balance of convenience lies in
favour of the plaintiff? No.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted? No.
(iv). What Order? As per final Order.
9. Plaintiff relied upon list of documents and affidavit in support of
his prayer. The defendant has also relied upon list of documents and
affidavit in support of his pleading.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
(These points are interlinked to each other. Hence discussed together.)
10. The Ld. Advocate for the plaintiff has filed synopsis alongwith
oral arguments.
11. The plaintiff further submitted that the suit property was
originally owned and possessed by the legal heirs of erstwhile owner
Domnic Mathes Borges (Duming). The suit premises has conveyance
the larger portion area adm. About 220 sq. mtr. The suit premises was
previously occupied by Smt. Shakeela Nasibdar Ansari, who has sold
and assigned. The suit premises has conveyed the larger portion area
adm. About 220 sq. mtr. Thereafter vide indenture of conveyance deed
dated 28.12.2007 the plaintiff and his brother Mohd. Asim Javed Aktar
and Mohd. Salim Javed Aktar have acquired the ownership of the said
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suit property. As per the ownership they acquired the property and do
the business. Accordingly the 7/12 extract of the suit property were also
reflect the name of plaintiff. The plaintiff also obtained the
establishment certificate, received the electric bills, water bills. Thus,
they have possessed the suit property as a owner and possessor without
interference of third party.
12. Plaintiff further state that, since the part portion of larger
property was affected in road widening and accordingly the MMRDA,
pursuant to the notice under section 299 of the MMC Act, 1888, dated
21.04.2006, has issued on the name of previous occupier, and
accordingly by possession letter dated 15.06.2006. The MMRDA has
taken the possession of the part portion of the larger property with
agreeing to grant benefit of FSI/TDR in lieu of possession handed over
to MMRDA.
13. The plaintiff has been served with the impugned notice dated
02.02.2021 issued u/s. 354-A of MMC Act, alleging therein
unauthorized extension of the suit premises. The plaintiff has replied
the same on 03.02.2021, however, without considering the said reply,
the defendant has passed in impugned order dated 05.02.2021
14. The plaintiff further submitted without any previous intimation
the defendant issued notice under section 354A of the MMC Act. The
notice is against the law on the basis of illegal notice. The defendant is
trying to demolish the suit property. Therefore, there is an apprehension
of causing irreparable loss which cannot be count in money. The
plaintiff has balance of convenience and prima facie case is in favour.
Hence he lastly submitted that the interim injunction be granted in his
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favour by directing the defendant to restrain pulling down demolishing
or removing the suit property. Plaintiff proved balance of convenience
and prima facie case in his favour.
15. During the course of argument advocate for the plaintiff relied upon the
following ratio laid down by the Hon’ble Supreme Court and the Hon’ble High
Court which are given below.
1. Sopan Maruti Thopate & Anr. Versus Pune Municipal Corporation & Anr. (AIR
1996 Bom. 304)
2. Goverdhan Ramnaresh Singh V/s. The MCGM (Appeal from Order No.257 of
1999, Order dated 15/04/1999)
3. M/s. Shah & Company V/s. The MCGM (Appeal from Order No. 99 of
2013 with Civil Application No.127 of 2013, Order dated 31/01/2013)
4. Muni Suvrat Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad and Ors.
(2006 AIR SCW 5192)
5. Lily P. Pandit Versus The MCGM and Ors.(MANU/MH/0546/2014) (Order dtd.
16.01.2014)
16. The defendant advocate argued and submitted that the defendant
filed their reply and submitted that the plaintiff has served the copy of
notice within time. As per the law, the statutory notice prior to filing the
suit is must. The plaintiff has not given notice under section 527 of the
MMC Act, to the defendant, without intimation suit is filed. The suit is
filed which is not maintainable in the eye of law. The act of the
defendant is within the preview of law as per section 354(A) of the
MMC Act. The plaintiff has no any prima facie case and balance of
convenience in their favour. Therefore, the claim of the plaintiff is
against the law, it is not maintainable. The defendant follow the due
process of law. The speaking order was also passed on 05.02.2021 and
17.02.2021. Therefore the notice of motion for interim order is not
maintainable. Plaintiff failed to prove prima facie case and balance of
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convenience.
17. During the course of argument advocate for the defendant relied upon the
following ratio laid down by the Hon’ble Supreme Court and the Hon’ble High
Court which are given below.
1. 2013 SCC online Bom 1198 (2014) 2 Mah LJ 313, Shivashankar Swami V/s
Municipal Corporation of Greater Bombay and another.
2. 2020 SCC online Bom 2780 N.H Harsora Pvt. Ltd. and Another V/s.
Designated Officer, Assistant Engineer (B. & F.) and another.
3. Public Interest Litigation No. 67 of 2017, Tushar Guru Salien V/s. The State
of Maharashtra and others.
4. (2006)5 Supreme Court Cases 282, Seema Arshad Zaheer & ors. V/s. The
Municipal Corporation of Greater Bombay others.
5. A.O. No.8 of 2018, James Cyryl Lobo V/s. The Municipal Corporation of
Greater Mumbai.
18. After going through the submissions of both parties and
documents relied upon it reveals that for the same suit of property the
LC suit no.1388 of 2021 was filed before this Court which was
withdrawn on 10.02.2021, considering the reply of the defendant. For
the same property the another notice has been issued by the defendant
by passing speaking order dated 17.02.2021 and the said speaking
order and notice was challenged by defendant stating that the action of
defendant is illegal and bad in law which is not binding on plaintiff.
19. Originally the suit is filed for permanent injunction and the
interim injunction is part and parcel of the same suit. As per order 39
Rule 1 and 2 of the CPC the Court should consider the case of plaintiff
whether his entitled for interim relief. The injunction prayer are depend
upon the best principal of equity, balance of convenience, hardship,
prima facie case. The plaintiff should prove that he is came with equity
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having balance of convenience, hardship caused to him, prima facie
case. Then and then the interim injunction must be granted in favour of
plaintiff otherwise the greater hardship will be considered.
20. The ratio relied by the plaintiff in Sopan Maruti Thopate & Anr.
Versus Pune Municipal Corporation & Anr., Goverdhan Ramnaresh
Singh V/s. The MCGM, M/s. Shah & Company V/s. The MCGM, Muni
Suvrat Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad and Ors.
and Lily P. Pandit Versus The MCGM and Ors., it reveals that the Court
should consider the theory depend upon theory of equity and using
discretion as well as specific direction were given in the said cases to
consider the cases for illegal demolition. As per the said ratio the
concerned commissioner should be act upon otherwise the action of the
commissioner is against the law which needs to interference of the
Court.
21. The ratio relied by the defendant it reveals that when there is an
unauthorized construction and illegal act of the plaintiff is going on.
They should not be protected by the law. The ratio of Seema Harshad
Jahir also reveals that in cases of demolition of buildings where the
plaintiff failed to make out a prima facie case for grant of injunction.
When there is no material on record to show the hardship as well as
prima facie case then the Court should not exercised his discretion to
protect the illegal construction.
22. After going through the all above ratio cited by both the parties
and the factual aspect of this case it reveals that the plaintiff has filed
first suit no.1388 of 2021 on the basis of notice dated 02.02.2021. the
said suit was withdrawn by the plaintiff and after passing the speaking
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order dated 17.02.2021 the present suit is filed. It clearly reveals that
the partly suit structure was acquired by the MMRDA. Accordingly the
notice has been issued by the MMRDA. As per the notification of
municipal Corporation and MMRDA the acquisition was going on and
illegal construction was also going on. At that time the defendant has
right to remove the construction. When there is question of MMRDA
then there is an Kurar Pattern is also applicable. As per the Kurar
pattern the whole property is acquired then the plaintiff is entitled for
alternative accommodation or alternative prayer if upto 30 or 40 % the
property is acquired. Then the plaintiff is entitled for additional FSI and
other related scheme. When there is question of MMRDA acquisition at
that time the provision of specific relief act section 21-A is applicable
relating to infrastructure projects. When there is question of
infrastructure project then the civil Court has strictly prohibited to
grant interim or ad- interim injunction in favour of plaintiff.
23. In the case in hand it reveals that the first suit was filed and the
total argument of plaintiff is depend upon numeric defects in the notice
and other. The defendant are relied upon the inspection note,
panchanama and affidavit in reply.
24. After going through the documents filed on record the permission
of construction the action plan and other documents were also not
placed on record.
25. To show the prima facie case and greater hardship there should
be a prima facie evidence if no injunction will not be granted. Then the
party will suffer irreparable loss which is cannot be count in money.
Then and than only the Court can grant the injunction in favour of the
plaintiff.
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26. After going through the contentions of the plaintiff failed to prove
prima facie case balance of convenience and he is entitled to grant
interim injunction as prayed. Hence I answer the point no.1 to 3 in the
negative.
AS TO POINT NO.4:-
27. The plaintiff failed to prove that he has prima facie case, balance
of convenience in his favour. The plaintiff also failed to prove that the
hardship will be caused to him if injunction is not granted in his favour.
Hence, I answer point no.1 to 3 in the negative. Plaintiff failed to prove
his notice of motion for granting injunction. Hence I hold that the
notice of motion is liable to be rejected. Accordingly I answer the point
no.4 and pass following order.
ORDER
The Notice of Motion no.928 of 2021 is hereby rejected.
(Jaydeo Y. Ghule)
Judge
Dated : 24.07.2026 City Civil Court
Mumbai Mumbai.
Dictated on : 24.07.2026
Transcribed on : 24.07.2026
Checked on : 24.07.2026
Signed on : 24.07.2026
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
DTD.24.07.2026, (V. N. Rajgole)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Jaydeo Y. Ghule
C.R. No.11.
Date of Pronouncement of
JUDGMENT/ORDER
24.07.2026
JUDGMENT/ORDER signed by
P.O. on
24.07.2026
JUDGMENT/ORDER uploaded
on
24.07.2026
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