Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1280-19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1280 OF 2019
S.C. SUIT NO.523 OF 2019
CNR NO.MHCC01-003313-2019
Ramesh Babaji Kadam … Plaintiff
Vs
Maharashtra Housing And Development
Authority (MHADA) & Ors.
… Defendants
Appearances:
Ld. Adv Archana Gaikwad for the plaintiff.
Ld. Adv Kadam for defendant No.1.
Ld. Adv Trivedi for defendant No.2.
Ld. Adv Ajit Rajgole for defendant No.3.
Ld. Adv Lata Vadhwani for defendant No.4.
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATED : 24th FEBRUARY 2021
ORDER
The plaintiff has taken out this notice of motion under
Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (CPC).
2. The plaintiff has alleged that defendants No.3 and 4 have
blocked his way to his house which is described in para 1 of the plaint
by constructing a wall (hereinafter referred to as “the suit premises”).
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He has, therefore, sought temporary mandatory injunction directing
them to open the way by removing the wall.
3. Admittedly, defendant No.3 has constructed Snehsadan
Sahagari Gruhnirman Society and defendant No.4 constructed Sawali
Sahakari Gruhnirman Society and the boundary walls under the Slum
Rehabilitation Scheme (in short “the SRA”). It is also admitted fact that
the suit premises was not included in the Slum Rehabilitation Scheme
for Sawali Sahakari Gruhnirman Society and Snehsadan Sahagari
Gruhnirman Society. Under these circumstances, the plaintiff could
have ventilated his grievance before the Competent Authority or
Appellate Authority or Grievance Redressal Committee under the
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment)
Act, 1971 (in short “
the Act”) or the High-Power Committee constituted
vide the Government Resolution No. याचचका-२००७/प.क.३६१/झोपसुु -१
dated 15.11.2007 as the case may be.
4. Section 42 of the Act bars the jurisdiction of the civil court
to determine any matter which the Appellate Authority, Competent
Authority, Grievance Redressal Committee or Tribunal is empowered by
or under the Act. It further provides that no injunction shall be granted
by any court in respect of any action taken or to be taken in pursuance
of any power conferred by or under the Act.
5. From the record, it prima facie appears that after obtaining
the occupation certificate, defendants No.3 and 4 have handed over the
rehabilitation buildings to defendants No.7 and 8. Considering the said
fact and the embargo contained in Section 42 of the Act, no temporary
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mandatory injunction can be issued against defendants No.3 and 4 for
the removal of the boundary wall of the buildings constructed under the
SRA Scheme.
6. It is to be highlighted that the plaintiff has not given the
description of the suit premises sufficient to identify it. In the plaint,
only the boundaries of the suit premises. However, he has not
mentioned the City Survey number or locality of the suit premises as
provided under Rule 3 of Order VII of CPC. The said fact, to my mind,
militates against the plaintiff.
7. Admittedly, the plaintiff had filed Suit No.1213 of 2013
against defendants No.3 and 4 and the Chief Promoters of Shneh Sadan
CHS Ltd and Savali CHS Ltd. The notice of motion taken out by him in
that suit for a temporary injunction restraining the defendants from
obstructing his easementary right of way to the road was dismissed by
the order dated 24.04.2015.
8. From the copy of the noting dated 20.12.2018 in Suit
No.1213 of 2013, it is clear that the plaintiff had withdrawn that suit
with liberty to file a fresh suit subject to the law of limitation.
Thereafter, the plaintiff filed the suit on 13.02.2019.
9. It cannot be gainsaid that a suit for injunction is governed
by the residuary article, Article 113 of the Limitation Act, 1963 which
provides for a limitation of three years from the date when the right to
sue accrues.
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10. Section 9 in The Limitation Act, 1963 provides that where
once time has begun to run, no subsequent disability or inability to
institute a suit or make an application stops it. In Avanish Chandra
Varma Vs. M/s Berger Paints India Ltd. (2020(1) J.C.R. 215), it has
been held that once the period of limitation starts, it cannot be stopped
by any litigating party even by mutual agreement between the parties.
11. As stated
supra, the plaintiff had filed Suit No.1213 of 2013
which he had withdrawn with liberty to file a fresh suit subject to the
law of limitation. In the plaint, the cause of action for filing the suit is
shown to have been arisen on 20.04.2015. the plaintiff has filed the suit
belatedly on 13.02.2019. The suit, thus,
prima facie appears to be
barred by law of limitation.
12. It cannot be gainsaid that the relief of temporary injunction
being equitable and discretionary, a party who seeks such relief must
approach the court without any delay.
13. In the case in hand, the cause of action is shown to have
been arisen on 20.04.2015. However, the plaintiff has filed the suit
belatedly on 13.02.2019. This delay on the part of the plaintiff in
approaching the Court for discretionary and equitable relief of
temporary injunction is sufficient to deny it on the maxim “
delay
defeats equity”.
14. The plaintiff has, thus, failed to make out a
prima facie
case. The balance of convenience is also not in his favour. Considering
the said facts and for the reasons enumerated in the foregoing para, I
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hold that the plaintiff is not entitled to the relief of temporary
mandatory injunction. Consequently, the notice of motion is liable to be
dismissed and proceed to pass the following order:-
ORDER
1. Notice of Motion No.1280 of 2019 is dismissed.
2. Costs shall be costs in the cause.
3. Notice of Motion No.1280 of 2019 is disposed of.
Sd/-
R. S. PAVASKAR
Judge,
Dated : 24/02/2021 City Civil Court, Gr. Bombay
Dictated on : 24/02/2021
Transcribed on : 24/02/2021
HHJ signed on : 24/02/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
25.02.2021 3.36 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Shri. R.S. PAVASKAR (CR 12)
Date of Pronouncement of
JUDGEMENT /ORDER
24.02.2021
JUDGEMENT /ORDER signed by
P.O. on
24.02.2021
JUDGEMENT /ORDER uploaded
on
25.02.2021
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