Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-003536-2019. 1 Notice of Motion No. 1379/2019
in L.C. Suit No. 699/2019.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1379 OF 2019.
IN
L.C. SUIT NO. 699 OF 2019.
Sayyed Hussain Chowdhary. ......…………. ….. PLAINTIFF.
V/s.
MCGM. .……............................................. ….. DEFENDANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 06th March, 2023.
APPEARANCES :
Mr. Suraj S. Kudalkar, Ld. Advocate for the Plaintiff.
Mrs. Smita G. Chavan, Ld. Advocate for the Defendant.
*****
01. The plaintiff has taken out this Notice of Motion (for short
‘the NM’), to restrain the defendant from removing or pulling down any
portion of the structure in pursuance of the notice of dtd. 21.12.2018,
issued U/s. 354-A of the MMC Act. Perused the NM, the accompanying
affidavit of his CA – Matin Ahmad Chaudhary and the defendant’s reply-
cum-written statement (Exhibit 5). Heard both the sides.
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 ? …..............................
Common Finding :
Yes, till the
defendant follows
the due process of
law.
(ii). Whether balance of convenience lies in
favour of the plaintiff ? …........................ ...
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
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CNR NO. : MHCC01-003536-2019. 2 Notice of Motion No. 1379/2019
in L.C. Suit No. 699/2019.
prayed for, are not granted ?....................
(iv). What Order ? …..............…..................... …As per final Order.
-: 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. By this suit, since beginning,
the plaintiff challenged the notice issued U/s. 354-A of the MMC Act, as
the suit premises is old one and to safeguard the same, the compound
wall is necessary. Moreover, as per the DC Rules 1991, no permission for
the said cause is required. He also referred to Regulation 38 (27) of the
said Rules. Above all, he denied to have constructed the said compound
wall and the fact that it was ‘in-progress’. Further, no speaking Order is
passed in the matter. The defendant resisted this NM on the count that
in view of the inspection report of dtd. 21.12.2018, the said compound
wall was found ‘in-progress’ and hence, this notice came to be issued. As
the plaintiff failed to reply the notice, along-with certain documents, the
demolition process was arranged on 02.01.2019. Be that as it may, the
fact remained that the plaintiff duly replied this notice on 11.03.2019,
filed at Exhibit ‘G’ of the plaint compilation. And, admittedly, till today,
no Speaking Order is passed in this matter. Simultaneously, the record is
silent to conclude the ‘on-going’ status of the alleged compound wall on
the day of inspection. True it is that the defendant filed the photographs
as per list at Exhibit 2 and 4. However, they are falling short to assume
that the said construction was in progress. Even this was the position of
the record, when this Court passed the earlier Order of dtd. 16.03.2019.
At that time, it was observed that the said construction was completed
and as the plaintiff disowned the said compound wall, no interim Order
was so passed. Since then, there had been no 'change' is reported on the
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CNR NO. : MHCC01-003536-2019. 3 Notice of Motion No. 1379/2019
in L.C. Suit No. 699/2019.
record. That apart, as referred earlier, the Speaking Order is awaited till
date. On this background, it is clear that the defendant has not followed
the principles/ guidelines, laid in the matter of Sopan Maroti Thopte V.
Pune Municipal Corporation, AIR 1996 Bom. 304. In the circumstances,
this Court is of the view that till he follows the due process of law, the
notice structure is to be protected. Hence, I answered point Nos. 1 to 3
accordingly and in answer to point No.4, I pass the following Order:
-: O R D E R :-
(i). Notice of Motion No. 1379/2019 is partly allowed.
(ii). The defendant, its agents, its servants and anybody
else claiming through him are hereby restrained from
proceeding against the notice structure, in pursuance
of the suit notice dtd. 21.12.2018, except by following
the due process of law.
(iii). Notice of Motion No. 1379/2019, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 06.03.2023. City Civil Court, Mumbai.
Dictated on : 06.03.2023.
Transcribed on : 08.03.2023.
Checked and Signed on : 09.03.2023.
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CNR NO. : MHCC01-003536-2019. 4 Notice of Motion No. 1379/2019
in L.C. Suit No. 699/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10.03.2023. at 5.45 p.m. 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 06.03.2023.
Judgment/Order signed by P.O. on 08.03.2023.
Judgment/Order uploaded on 09.03.2023.
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