Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 1262-19 in L.C.SUIT no.4119-10
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 1262 OF 2019
(CNR no. MHCC010032512019)
(HIGH COURT NOTICE OF MOTION NO. 2922 OF 2010)
IN
LONG CAUSE SUIT NO. 4119 OF 2010
(CNR no. MHCC010045952010)
(HIGH COURT SUIT NO.1990 OF 2010)
1. Shree Gagangiri Cooperative ]
Housing Society Ltd. ]
registered under No.MUM/WN/HSG/TC/ ]
8653/20022003 having their registered office at ]
S.No. 236A, C.T.M. No.194, Plot No.42, ]
Ghatkopar (East), Mumbai400 070. ]
2. Bharat Agavane ]
President of the plaintiff no.1 residing at ]
1/7, Worli Police Camp, Sir Pochkhanwalla ]
Marg, Worli, Mumbai 400 030. ]
3. S. N. Bhoomkar ]
Residing at B601, Sonigara Park, ]
Dange Chowk, Thergaon, Chinchwad, ]
Pune 411033. ]
4. Nitin Jadhav ]
Residing at 51/10, Worli Police Camp, ]
Sir Pochkhanwalla Marg, Worli, Mumbai400 030 ]....Plaintiffs
V/s
1. The Municipal Corporation of Gr. Mumbai, ]
having their Head office at Mahapalika Bhavan, ]
Mahapalika Marg, Fort, Mumbai400 001 ]
2. Ganesh Enterprizes ]
Partnership Firm registered under the ]
Indian Partnership Act, 1932 having its ]
registered office at 12, Samant Wadi, ]
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2 NM no. 1262-19 in L.C.SUIT no.4119-10
Dixit Road, Behind Parle College, ]
Vile Parle (East), Mumbai 400 057. ]
3. S. B. Rasam ]
Member of the plaintiff no. 1 ]
Residing at 24/11, Worli Police Camp, ]
Sir Pochkhanwalla Marg, Worli, Mumbai 400 030. ]
4. M. B. Wadekar ]
Member of the plaintiff no. 1 ]
Residing at 3/7, Worli Police Camp, ]
Sir Pochkhanwalla Marg, Worli, Mumbai 400 030. ]
5. Rakesh Sakpal ]
Member of the plaintiff no. 1 ]
Residing at 1/5, Worli Police Camp, ]
Sir Pochkhanwalla Marg, Worli, Mumbai 400 030. ]....Defendants
Appearances:
Ld. Advocate Mr. Rakesh Pathak for the Plaintiff.
Ld. Advocate Mrs. Patil for defendant no. 1/MCGM.
Ld. Advocate Mr. M. A. Shah for defendant no.2.
None for defendants no. 3 to 5.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 22nd October, 2019
O R A L O R D E R
1. In the course of arguments, Ld. Advocate for the Plaintiff/Society
states that he is not pressing for prayer clauses (a) and (b) of the Notice
of Motion. Therefore, the instant Notice of Motion is considered for
prayer clause (c) thereof which reads as under :
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3 NM no. 1262-19 in L.C.SUIT no.4119-10
(c) For an order pending the hearing and final disposal of the suit
for an appointment of Architect/Commissioner with liberty to the
Plaintiffs to keep their Architect present to carry out survey to
(i) To decide the quantum of usurped FSI of the suit plot by
the Defendant No.2.
(ii) To carry out the survey of the work already done by the
Defendant No.2 on the plot situate at S. No. 236A,
C.T.M., No. 194, Plot No.42, Ghatkopar (East), Mumbai
400 070 to decide the cost of the construction in terms of
agreement Exhibit "B" and submit their report regarding
the factual position in respect thereof.
(iii) For an order pending the hearing and final disposal of the
suit restraining the Defendant No.2 from selling and/or
giving possession of the flats to any outsiders other than
the members of the Plaintiff No.1.
From the above said prayer clause (c), the instant Notice of
Motion is now for issuing a commission to architect for submitting his
report on the aforementioned issues no. (i), (ii). After perusal of the
plaint allegations, it can be seen that the Plaintiff no.1/Society is
alleging that the flats with less areas are constructed by Defendant No.2
even though the latter had agreed for larger flats. By instant Notice of
Motion, the Plaintiff/Society seeks appointment for Commissioner to
take measurements, carry out survey of the said work done by
Defendant No.2 and to find out the quantum of usurped FSI of the suit
flats.
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2. The purpose of issuing a commission is to elucidate matter in
dispute or the purposes given in the provisions of Order XXVI Rule 9 of
Code of Civil Procedure, 1908. It is settled law that Court Commissioner
cannot be appointed for collecting evidence. The plaintiff/society wants,
by this application, to gather evidence by appointment of commissioner
in support of their case which is not permissible. Therefore, the instant
application is not tenable.
3. The Plaintiff/Society has also prayed for temporary injunction
restraining the Defendant No.2 from selling and/or giving possession of
the flat to any outsiders other than the members of the Plaintiff/Society.
In this respect, it is to be noted that the instant Notice of Motion is filed
in 2010. The plaintiff has argued on the said Notice of Motion after 9
years. No details of proposed transactions with third persons by
Defendant No. 2 are given in the plaint as well as in the affidavit in
support of the Notice of Motion. Therefore, after lapse of such a huge
period of 9 years, the instant prayers also cannot be considered. For all
the above reasons, Notice of Motion fails and following order :
ORDER
1. Notice of Motion No.1262 of 2019 (High Court Notice of Motion
No.2922 of 2010) is dismissed.
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2. Costs in cause.
(C. V. Marathe)
Judge,
Date : 22.10.2019 City Civil Court, Gr. Mumbai.
Dictated on : 22.10.2019
Transcribed on : 22.10.2019
Signed by HHJ on : 22.10.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 23.10.2019 at 1.19 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
22/10/2019
JUDGMENT/ORDER signed by
P.O. on
22/10/2019
JUDGMENT/ORDER uploaded
on
23/10/2019
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