Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.862-2018 L.C.SU no.598-2018
CNR MHCC01-002966-2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.862 OF 2018
IN
L.C. SUIT NO.598 OF 2018
Shantokben Mitalal Sanghvi ]...Plaintiff.
Versus
The Mumbai Municipal Corporation ]
of Greater Mumbai. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 28th February, 2018.
Mr. Barot, advocate for plaintiff.
Mrs. Patil, advocate for BMC.
ORDER
1. Heard respective advocates. The plaintiff has taken out this
notice of motion seeking preventive relief for restraining the defendant
from acting in pursuance of the impugned notice and order to demolish
the notice structure.
2. According to the plaintiff, she was the tenant in the suit
premises bearing flat no.301 admeasuring about 1089 sq.ft. of area. The
said premises was purchased by plaintiff upon execution of a deed of
apartment dated 12.2.1988. The entire building was firstly assessed on
31.3.1961.
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2 NM no.862-2018 L.C.SU no.598-2018
3. Earlier notice dated 12.9.2017 under Section 351 of the
Mumbai Municipal Corporation Act (in short, “MMC Act”) was issued.
Further by an order dated 10.11.2017 the plaintiff was directed to
remove the notice work within 15 days. The plaintiff challenged the
same by filing S.C. Suit no.2590 of 2017, the Learned Predecessor of
this Court had been pleased to dispose of the said suit by directing the
defendant to consider the reply and documents and pass speaking
order.
4. Accordingly, the plaintiff again submitted reply on
27.11.2017 alongwith various documents. On 21.2.2018 an order has
been passed by the defendant by holding that the documents produced
by the plaintiff are not sufficient to show that the notice structure is
authorized or tolerated one. Thereafter, the present suit and notice of
motion are filed.
5. The defendant has filed a reply reiterating that the plaintiff
has failed to show the authorization of notice structure or even to show
that, it is tolerated structure. The defendant has filed copies of
inspection report etc. on record.
6. The copy of deed of apartment dated 12.2.1988 prima facie
shows a recital that the floor plan was annexed to the same indicating
the number and dimensions of the apartment and depicting the layout
of the apartment showing its locations, dimensions, approximate area,
main entrance, common areas and facilities to which it has access. The
Learned Advocate for the plaintiff submits that the original copy of the
deed of apartment is missing and therefore, the plaintiff has obtained a
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3 NM no.862-2018 L.C.SU no.598-2018
certified true copy from the concerned Subregistrar. Under such
circumstances, prima facie the fact remains as it is that there is no copy
of layout plan of the suit premises showing its dimensions and outer
limits. The Learned Advocate for the plaintiff submitted that the area of
the suit premises is 1089 sq.ft. A Commissioner may be appointed to
measure the suit premises which will show that the notice structure is
part and parcel of the suit premises. However, it is well settled position
of law that a Court Commissioner cannot be appointed to collect
evidence. The plaintiff could have appointed an architect to measure
the suit premises and bring on record her contention that the notice
structure forms the part of the suit premises.
7. The impugned notice shows that there is unauthorized
encroaching on the common passage admeasuring 400 meters x 1.50
meters x 3.20 meters (height) by constructing brick masonry wall with
door at flat no.301 i.e. the suit premises. Prima facie it appears that the
plaintiff has taken the common passage to her restricted use. Nothing
has been placed on record to show prima facie that the said passage i.e.
notice structure is part and parcel of the suit premises or it is raised by
seeking permission from the Defendant Corporation, or at least from the
condominium of apartment owners or cooperative housing society.
8. At this juncture, the Learned Advocate for the plaintiff
prays for the stay of the order for four weeks. The Learned Advocate
for the defendant strongly objected to grant such stay. The order
rejecting the notice of motion itself is not executable one. However,
considering the dismissal of the notice there is possibility that the
defendant Corporation may initiate action for demolish of the notice
work. In order to facilitate the plaintiff to approach the Hon'ble High
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Court, it is expedient to direct that the earlier adinterim protection
should be continued till 12.3.2018. The adinterim protection granted
by order dated 24.11.2017 is extended till 12.3.2018 with a direction
that in any event it will not be extended further on any ground.
15. Under such circumstances, the plaintiff is not entitled for
adinterim reliefs. Therefore, following order is passed:
ORDER
1. Adinterim relief is rejected.
2. Atinterim protection granted to the notice structure is continued
till 12.3.2018.
3. Notice of motion no.862 of 2018 is disposed off accordingly.
Sd/
(M.S. Deshpande)
Judge,
City Civil Court, Mumbai.
Dated: 28.02.2018
Dictated on : 28/02/2018.
Transcribed on : 03/03/2018
Signed by HHJ on : 05/03/2018
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5 NM no.862-2018 L.C.SU no.598-2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.03.2018 At 02.00 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
28.02.2018
JUDGMENT/ORDER signed by
P.O. on
05.03.2018
JUDGMENT/ORDER uploaded
on
05.03.2018
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