Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1061/20 (L.C.S.No.1352/20)
MHCC010030192020
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION No.1061 OF 2020
IN
LONG CAUSE SUIT No.1352/2020
Naeem Khan s/o. Banne Khan
& 4 Ors. … Plaintiffs
- Versus -
1] Municipal Corporation of
Greater Mumbai
2] Rajgor Empire Premises
Co-op-society Ltd. ... Defendants
Appearance :-
Ms. Bushra Sayyed, Advocate for plaintiffs.
Mrs. Metakari, Advocate for defendant No.1/M. C. G. M.
Mr. D. N. Mishra, Advocate for defendant No.2.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 01/08/2024.
O R D E R
. This suit is for declaration that the circular/notice dated
6/10/2018 issued by the defendant No.2-society is illegal, bad-in-law
and mandatory injunction against defendants for removal of
obstruction, encroachments of the hawkers in front of plaintiff's shop
-- 1 of 9 --
2 N/M. No.1061/20 (L.C.S.No.1352/20)
and the plaintiff has taken out present Notice of Motion under Order-
XXXIX Rule-1 of The Code of Civil Procedure for temporary injunction
restraining encroachment of two and four wheelers in the open space
on the ground floor in the compound of society and mandatory
injunction directing the defendant/B. M. C. to take action as per the law
that there should not breach of the peace or nuisance and obstruction
should not be caused to the plaintiffs.
2] The plaintiffs are the owners/occupiers of five shops on the
ground floor of the defendant No.2-society building. The plaintiff is
aggrieved by the nuisance and obstructions to their business activities
by the officer bearers of the defendant No.2-society in the form of
permitting illegal two/four wheelers parking on the ground floor of the
society-building and encroachment by the hawkers permitted by the
society in front of the shops of the plaintiffs.
3] The plaintiffs are the members of the defendant No.2-
society and they are running shops on the ground floor. On 20/9/ the
plaintiff made complaint to the society and requested it to restrain its
members/visitors from parking vehicles in the open space on the
ground floor as shown in red hatch line in the plan. However, in stead
of resolving the grievance the society issued impugned notice/circular
whereby the society decided to allow the visitors/tenants to park their
vehicles on the ground floor of the society building.
4] The plaintiffs have raised objection about said notice with
the society as well as Deputy Registrar, Cooperative Societies regarding
change in user in violation of the provision of Section 51 (1) of The
Maharashtra Regional And Town Planning Act. It is informed that the
parking arrangement on the ground floor is illegal and it is adversely
-- 2 of 9 --
3 N/M. No.1061/20 (L.C.S.No.1352/20)
affecting the business and causes inconvenience to the customers. The
plaintiffs also made complaint to the B. M. C., but no action was taken.
Hence the plaintiffs constrained to file present suit and took out Notice
of Motion.
5] It is further stated that the society has allowed to park the
vehicles as well as hawkers in open space on the ground floor of the
building, which causes obstruction and nuisance to the smooth business
of the plaintiffs. Therefore, temporary injunction as prayed may kindly
be granted.
6] Defendant B. M. C. opposed Notice of Motion by filing a
short affidavit in support of the documents. It is stated that defendant
B. M. C. already produced documents showing removal of
encroachment on municipal road and footpath. There is dispute
between the plaintiffs and the defendant No.2-society. This defendant is
regularly taking action against encroachment as such suit against
defendant B. M. C. is not tenable.
7] The defendant No.2-society filed reply on 8/12/2020
through its secretary and denied contentions in Notice of Motion as well
as suit. It is stated that the society has made complaint against
unauthorized work carried out by the plaintiffs and with a view to
pressurize the society they have filed present suit. The plaintiffs have
filed this suit and Notice of Motion on false and frivolous grounds,
therefore, they are not entitled for relief of temporary injunction.
8] It is further stated that the plaintiffs are keeping/storing
their materials and goods in huge quantity outside their respective
shops by blocking front entrance of the building and covered entire
-- 3 of 9 --
4 N/M. No.1061/20 (L.C.S.No.1352/20)
compulsory open space of the building. The plaintiffs have covered both
entrance and exist gates of the society with fixed grills. So also they
covered West side in front of shop No.1 and blocked the basement entry.
The plaintiffs have enclosed both the common toilets. They have
removed internal walls between the shops without permission. They
have constructed Otlas illegally. They are keeping goods and materials
besides the main gate of the building.
9] It is further stated that as far as parking of vehicles in the
society is concerned, the society has permitted to park vehicles within
compound of the society as builder has not completed work of parking
place in the basement and, therefore, vehicles cannot be parked there.
Therefore, the society members are using the space of the society
compound for parking their cars. The plaintiffs are also parking their
vehicles in the compound of the society building. The basement area for
the parking is not available and, therefore, members are parking their
cars on the open space available in society. No member or tenant of
society parks vehicle in front of shops of plaintiffs. The plaintiffs have
put shutters by breaking permanent wall of shop No.1 and now they
want to use said open space in front of shop. The shop No.1 is opening
on J. V. Road (Khot late). The plaintiffs themselves have put heavy
materials and articles in front of their shops and no member is parking
vehicle in front of shop No.1. In the circumstances, the plaintiffs are not
entitled for relief claimed.
10] Points for determination alongwith findings thereon for the
reasons are as under :-
-- 4 of 9 --
5 N/M. No.1061/20 (L.C.S.No.1352/20)
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiffs have made out
prima facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiffs ? . . . No.
3) Whether plaintiffs 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 :-
11] Heard learned advocates for the parties. Perused the plaint,
Notice of Motion, affidavit, reply filed by the defendants.
12] It is not in dispute that the plaintiffs are the owners/
occupiers of shops No.1 to 5 situated on the ground floor of the
defendant No.2-society building and are carrying on business. It is
allegation of the plaintiffs that the defendant No.2-society by notice
dated 6/10/2018 decided to allow parking of vehicles of its members,
tenants and visitors in open space on the ground floor. It is further case
of the plaintiffs that due to parking of vehicles by the members, tenants
and visitors, hawkers are doing business in front of their shops it causes
nuisance as well as inconvenience to the plaintiffs and their customers.
The plaintiffs have produced on record sanctioned plan of the ground
-- 5 of 9 --
6 N/M. No.1061/20 (L.C.S.No.1352/20)
floor. It is their contention that society allowed its members, tenants
and visitors to park their vehicles in front of their shop in compulsory
open space. On the other hand, it is alleged by defendant No.2 that the
plaintiffs have carried out unauthorized alterations/additions in the
shops. It is alleged by the defendant No.2-society that the plaintiffs have
covered compulsory open space and common compound. They have
demolished wall of shop No.1 towards J. V. Road, Khot lane. They are
putting business articles in front of shops and blocked entrance and exit
of society. Thus, there is words against words allegations by the
plaintiffs and defendant No.2-society.
13] Defendant B. M. C. produced on record photographs and
submitted that the Corporation is regularly taking action against
hawkers and they have removed hawkers on the public road. It is
grievance of the plaintiffs that society has allowed the parking in open
space of the compound of society. It is contention of defendant No.2-
society that builder has not completed that work of basement for car
parking as per sanctioned plan. Hence it decided to allow parking of
vehicles of members and tenants in the compound of the ground floor.
Admittedly, the building is a commercial structure. The whole building
is controlled by the defendant No.2-society. It is contention of the
defendant No.2-society that builder has not completed work of
basement and no space for parking is available to the members and
tenants of society and, therefore, it has allowed them to park vehicles
on the ground floor. This appears to be a temporary arrangement to
park vehicles for convenience of members of society including the
plaintiffs.
-- 6 of 9 --
7 N/M. No.1061/20 (L.C.S.No.1352/20)
14] The plaintiffs have taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C. P. C. Plaintiffs
are seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a
prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
15] The entire building is commercial and it is controlled by the
society. It appears that due to non-completion of basement work, there
is no space for parking of vehicles. Hence the society as a whole allowed
its members, including the plaintiffs, to park their vehicles in open
space. The open space is meant for common use of its members.
Therefore, it cannot be said that due to such decision of society the
plaintiffs are causing irreparable loos. In the case at hand, it is
contention of the defendant No.2-society that society made complaint to
defendant/B. M. C. against the plaintiffs for unauthorized construction
and in order to pressurize the society the plaintiffs have filed this suit.
The defendant No.2-society has produced on record copies of
complaints made to defendant/B.M.C. There are serious allegations of
unauthorized constructions, alterations and additions by the plaintiffs.
Thus, I find substance in the submission of learned advocate for the
defendant No.2-society that due to complaint by society the plaintiffs
have filed this suit. In the circumstances, it appears that the plaintiffs
-- 7 of 9 --
8 N/M. No.1061/20 (L.C.S.No.1352/20)
have not come to the Court with clean hand. It is well settled that a
person who seeks equitable relief of injunction shall come to the Court
with clean hand and do equity. However, as stated earlier, the plaintiffs
have not come to the Court with clean hand, therefore, they are not
entitled for the reliefs claimed. The plaintiffs have failed to make out
prima facie case. Balance of convenience does not tilt their favour. The
points No.1 to 3 are, accordingly, answered in the negative and in
answer to point No.4 I pass following order :-
O R D E R
Notice of Motion is dismissed.
Date : 01/08/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
-- 8 of 9 --
9 N/M. No.1061/20 (L.C.S.No.1352/20)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
20/08/2024 03:00 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 01/08/2024
ORDER Typed on 14/08/2024
ORDER signed by P.O. on 19/08/2024
ORDER uploaded on 20/08/2024
-- 9 of 9 --