Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO : MHCC010033292020. Notice of Motion No. 1198/2020.
in L.C. Suit No. 95/2017.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1198 OF 2020.
IN
L.C. SUIT NO. 95 OF 2017.
Devman Hariram Bind. .........………….………. ….. PLAINTIFF.
V/s.
MCGM......................……………………………. …. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 05th December, 2023.
APPEARANCES :
Mr. Mukesh S. Dubey, Ld. Advocate for the Plaintiff.
Mr. G.O. Giri, Ld. Advocate for the Defendant/MCGM.
*****
01. The plaintiff has taken out the Notice of Motion (‘the NM’),
to restrain the defendant from enforcing the notice of dtd. 05.01.2017,
issued U/s. 354-A of the MMC Act, and the Orders dtd. 06.01.2017 and
13.01.2017. Perused the NM, supporting affidavit, the defendant's reply
and written submissions of the plaintiff. Heard.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a 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.
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CNR NO : MHCC010033292020. Notice of Motion No. 1198/2020.
in L.C. Suit No. 95/2017.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are inter-connected, to maintain the brevity,
I am taking the same for a joint discussion. Since inception, the plaintiff
came with a specific case that he is in occupation of the suit premises -
Room No.2, which is wrongly shown as Room No.7, admeasuring about
10’ X 12’ sq. ft., situated at Kadri Compound CHS, Mathuradas Vasanji
Road, Safed Pool, Sakinak, Mumbai. The suit premises is old one and it
existed even prior to 01.01.1995/01.01.2000. He acquired the same in
the year 2016 from one Sanju Nair. It was assessed to taxes since 1962.
He also had documents like Agreement of sale, Power of Attorney, etc.,
pertaining thereto. However, as the suit premises was old one, he only
carried white wash to it and hence, the defendant issued the notice on
05.01.2017. He replied it on 08.01.2017. Still, without considering his
reply, the defendant passed the Speaking Order on 13.01.2017. Further,
as he threatened to demolish the suit premises, he filed this suit, along-
with this NM for the aforesaid reliefs. At this juncture, he supported his
claim by filing documents, more precisely, General Power of Attorney,
Agreement for Sale, Affidavit, the notice, his reply, the Speaking Order,
etc... The defendant objected this NM mainly on the counts that while
carrying the inspection, on receipt of the complaint from the said Kadri
Compound CHS, on 04.01.2017, he found such construction in progress
and therefore, the notice was issued. As the plaintiff failed to show the
authenticity of this structure, the Speaking Order followed. To support
his contentions, he relied upon the copies of the said inspection report,
the notice, photographs, etc.. The plaintiff filed written submissions and
re-iterated his contentions and the defendant orally argued this matter.
04. Having considered the rival submissions, at the outset, it is
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CNR NO : MHCC010033292020. Notice of Motion No. 1198/2020.
in L.C. Suit No. 95/2017.
notable that it is nowhere the plaintiff’s stand that the notice structure
was brought into existence only after securing due permission from the
defendant or as per the sanctioned plan. On the contrary, he is trying to
justify this structure mainly on the counts that it is 'wrongly' mentioned
as room No.7, which was in fact room No. 2. Moreover, he only carried
white wash of the suit premises. In this reference, it is pertinent to note
that the notice as well as the Speaking Orders clearly referred the notice
structure as room No.7. The record further shows that having received
complaint of the said Kadri Compound CHS, where the suit premises is
situated, as against the plaintiff’s construction, the defendant inspected
the site. Simultaneously, barring the plaint averments, there is nothing
on record to conclude that the defendant 'wrongly' mentioned room No.
2 as room No. 7 and therefore, his very action was unjustified. True that
the plaintiff could place the said Power of Attorney, Agreement of Sale,
and the Affidavit. However, bare perusal thereof shows that they did not
bear reference of the notice structure i.e. room No. 7, but are relating to
the suit premises of room No. 2.
05. Continuing my discussions, the record further goes to show
that upon receiving the said complaint, the defendant inspected the site
on 04.01.2017 and found that on-going construction of an independent
structure of room No. 7, at the said Kadri Compound CHS. Accordingly,
he filed photographs of the structure, bearing date of the inspection. On
its bare look, it is clarified that the said structure was in the form of a
new construction and not the only white wash of the structure. Even the
construction material seems to lie adjacent to this site, suggesting that it
was in progress. It is, thus, clear that the plaintiff hasn’t come before the
Court with clean hands and couldn’t justify the notice structure on this
open land, having no relevance with the suit premises. Consequently, I
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CNR NO : MHCC010033292020. Notice of Motion No. 1198/2020.
in L.C. Suit No. 95/2017.
am of the opinion that the plaintiff failed to establish authenticity of the
notice structure and the fact that the notice was 'wrongly' issued against
room No.7. None of the documents of his reliance is concerned with the
notice structure. Moreover, the defendant followed due process of law.
This way, the plaintiff could not present a prima facie case in his favour
and balance of convenience also doesn’t not tilt in his side. Further, as
he could not substantiate his propriety on the notice structure, he would
not suffer any irreparable loss even if the interim relief, as asked for, is
not granted. Hence, I answered point Nos. 1 to 3 in the negative and in
answer to point No. 4, I pass the following Order;
-: O R D E R :-
(i). Notice of Motion No. 1198/2020 stands dismissed.
(ii). Notice of Motion No. 1198/2020 is, accordingly,
disposed of.
Sd/-
{A.G. Santani}
Mumbai. Judge,
Dated : 05.12.2023. City Civil Court, Mumbai.
Dictated on : 05.12.2023.
Transcribed on : 08.12.2023.
Checked and Signed on : 12.12.2023.
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CNR NO : MHCC010033292020. Notice of Motion No. 1198/2020.
in L.C. Suit No. 95/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
13.12.2023. at 5.45 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 05.12.2023.
Judgment/Order signed by P.O. on 12.12.2023.
Judgment/Order uploaded on 13.12.2023.
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