Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 C/H No.811/2019 in L.C.Suit No.015/2013
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 811 OF 2019
(C.N.R.No. MHCC010013422019)
IN
SHORT CAUSE SUIT NO. 915 OF 2013
(C.N.R.No. MHCC01009022013)
Janata Market Welfare Association ]
and 5 others ]..Plaintiffs.
V/s.
Prakash Chandrakant More
and 4 others ]..Defendants.
and
Mr. Kudalkar ]..Respondent
Advocate Mr. Sandeep Bane for plaintiffs.
Advocate Mr. Redekar for respondent in Ch/s.
Advocate Mr. Kudalkar for defendant nos.1 to 4.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 23rd AUGUST 2019
ORAL ORDER
This Chamber summons has been taken out by the plaintiffs
for permitting them to amend the plaint in terms of Schedule annexed
with the Chamber Summons and also prayed for adinterim order
during the pendency of Chamber Summons vide prayer clause (a).
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2 In support of Chamber Summons plaintiff No. 2 Pratap
Bagaram Bane has filed his affidavit. It is averred that Plaintiff No. 1 is
Association of 23 shop owners on the suit plot. The said 24 shop
owners, who are dealing in retail sale of consumer goods from their
respective shops. All 24 shops owners are the tenants of MHADA and
regularly paying rent to the said authority.
3 It is further averred that huge plot, to the center of said
plot of the MHADA has constructed building, tenanted out to several
tenants. There is a vacant plot between the said tenanted building and
the Plaintiffs suit shops and distance between the said tenanted building
and the 24 shops is about 45 to 50 feet. The shops of the members of
the plaintiffs and above vacant plot is reserved by Defendant No. 5
MHADA. Even one of the shops owned by Plaintiff No. 1, there are two
doors. Front door is for serving sale of items to the general public.
There is also a back door to each shop. The tenants of the said tenanted
building of MHADA planted small mini plants, just taking rear door of
each shop, so as to prevent ingress and egress of the shop owners. The
said tenants started preventing shop owners from using rear side of the
compound to use as a passage. The shop owners used to bring business
items, in bulk, for retail sale from the aforesaid rear door of the suit
shops.
4 It is further averred that now the developer aforesaid has
been appointed to make shop owns survival difficult. Open Land is a tit
bit area for which the Plaintiffs have applied for allotment of the said
titbit area. Their application is still under consideration. The said titbit
area is the open land reserved for shops. The said titbit area has not
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been assigned to the Respondent. The respondent has no right to put
any iron barricade on any portion of the said open land.
5 During the pendency of the suit, the said tenants of
MHADA building appointed the respondent for redevelopment. The
said respondent possibly at the instance of the said tenants dug pits just
close to the rear wall of the respective shops of the plaintiffs to put the
patra (tin) barricade. It was wholly wrong to do so when there is a
large vacant plot. The respondent could have done so leaving 15 to 20
metres from the rear wall of the suit shop. The respondent is not
entitled to prevent the said shop owners free ingress and egress from
rear door of the shops or to prevent the plaintiff to get their business
materials via lorries. The plaintiffs objected to the construction of iron
sheet barricades. The plaintiffs are advised to implead the respondent
and seek preventive orders to prevent the respondent from putting up
the said barricades. Hence, prayed for allowing the Chamber Summons.
6 The respondent has filed reply by filing affidavit of Nilesh
Laxman Kudalkar. It is contended that he has not done any act or taken
any steps whereby the plaintiffs have any cause of action to file or move
this application. The plaintiffs are trying to put the facts in such a
distorted manner with sole object to mislead the Court. The plaintiffs
are not entitled to any of the reliefs as prayed and it is be dismissed
with compensatory cost. If the relief as prayed for the same is granted
to the plaintiffs, the present proposed defendants would suffer
irreparable loss and harm and the plaintiffs will succeed in his vendetta
against the defendants. The plaintiffs have not approached the Court
with clean hand, as and suppressed the material facts, correspondence
and documents from this Court.
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7 It is contended that the plaintiffs are taking advantage of
their own wrong. There is no whisper about any resolution passed by
plaintiff no.1 in respect of present Chamber summons and moreover
there is discrepancy about the number of shops in their own statements.
All the shops owners are tenants of MHADA i.e. defendant no.5, but
there is not a single document annexed to the plaint showing clear title
and actual measurements of the said shops allotted to the plaintiffs.
The plaintiffs were allotted only 80 sq. feet shops by defendant no.5,
which are illegally extended by all the members of the plaintiffs and
almost reached to plot of defendant nos.1 to 4 society premises, without
any permission from MHADA being the owner of the land. The
plaintiffs on their own illegally opened back door, when there is no road
available for them.
8 Further, it is contended that he has not been appointed as
developer of defendant nos.1 to 4 society. Therefore, any reliefs cannot
be sought against him. The present plaintiffs' members have sufficient
access from front side big road to have their business activities and as
far as development of the society is concerned, then the defendant
society are entitled to develop their land, which is only allotted to them.
Therefore, the present Chamber Summons cannot be granted. Hence,
prayed for dismissal of Chamber Summons with costs.
9 On behalf of defendant nos.1 to 4, the secretary of
defendant no.4 Sujit Jagannath Redkar has filed his affidavit and he has
denied each and every statements made in the Chamber Summons. It is
contended that he is not aware of that whether plaintiff no.2 is the
Chairman of plaintiff no.1 Association of 23 shop owners of the suit
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plot. As per record in the office of defendant no.5, there are total 22
pitch was allotted to the plaintiffs respectively. The said 24 shop
owners, who deal in retail sale of consumer goods from respective
shops.
10 Further, he has denied that all the 24 shops owners are the
tenants of MHADA and regularly paying rent to the said authority.
Defendant no.5 MHADA had allotted pitch admeasuring about 8' X 8” to
the plaintiffs and at present the plaintiffs have encroached upon the
open land belongs to them as conveyed by defendant no.5 MHADA. It is
denied that between said tenanted building and the plaintiffs suit shop
there is vacant plot and distance is 45 to 50 feet. By letter dated
18.09.2018, defendant no.5 has demarcated the plot boundary as site
measurement of defendant's building no.85, known as “Kannamwr
Nagar” Omkar CHS Ltd., on plot bearing CTS No.356 (Pt) S. No.113
(Pt) of Village, Hariyali. Defendant no.5 has also prepared lay out plan
in respect of the suit property owned by defendant no.4 society The tit
bit area of the plot of land is conveyed by defendant no.5 with their
society.
11 It is further contended that one of the shops owned by
plaintiff no.1, there are two doors. He has stated that no rear door is
meant for use or to keep open by the plaintiffs as per pitch allotted to
them. To grab the open place belongs to their society behind the
plaintiffs' shop, the plaintiffs illegally encroached upon the defendant's
open plot of land. It is contended that pitch granted by defendant no.5
at around 8' X 8' and there were no back door as alleged in the affidavit.
It if further denied that the tenants of the said building of MHADA
planted small mini plants, just near rear door of each shops, so as to
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prevent ingress and egress of the shop owners. It is contended that the
shops are opening to the front side road and not from rear side. The
said tit bit area is the open land, for shops including suit shops
belonging to MHADA. Thus, prayed for dismissal of Chamber Summons
with Costs.
12 Heard the learned advocate for the plaintiffs and the
respondents and the learned advocate for defendant nos.1 to 4.
13 Perused suit plaint and relief claimed. At the time of filing
of the suit, the plaintiffs have made prayer of permanent mandatory
injunction by giving directions to defendant nos.1 to 3 to shift the trees
and/or saplings installed just abutting the back side of the suit premises
and also dismantle the brick work, constructed around the saplings
and/or trees, for free access, to their shops from behind and restraining
defendant nos.1 to 4 from making any construction of the nature
temporary or permanent on the said open compound of plot.
14 It appears prima facie that nothing discloses as to when
alleged pits were dug in the open space, in the rear side of the shops of
the plaintiffs. Further, it appears from the plan submitted alongwith the
Chamber Summons shows that front side entrance to the shops of the
plaintiff are opening towards the BMC road and not towards the open
space. Primafacie it appears that the plaintiffs are using common
passage, which is said as open land, around the suit premises and it also
known as TitBit area, which belongs to defendant no.5 MHADA.
Nothing discloses that the said open area belongs to the plaintiffs.
15 It appears that the plaintiffs made request to release titpit
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area to them. Primafacie nothing discloses that the said open area is
exclusively in use and possession of the plaintiff. Further, the plaintiffs
have claiming tenants of respective shops, but they have not filed any
documents to prove their tenancy over the respective 180 feet area of
respective shops. Further, from the documents on record nothing
discloses that the business activities of the plaintiffs like loading and
unloading of commercial goods by truck or some vehicle is from back
side of their respective shops.
16 Further, the plaintiffs have tendered letter issued by the
Assistant Estate Manager to the Ward Officer, “S” Ward, Bhandup
(West), Mumbai to show that all the stalls holders have been issued
pitch cards and are paying their compensation to their department, but
it is of no use to show their rights from rear side of the respectiveshops.
The plaintiffs have not filed primafacie evidence to show that the
respondent has been appointed for redeveloping the said tenanted
building and the respondent has dug pits, just close to the rear wall of
the respective shops of the plaintiffs to put the patra (tin) barricade.
17 I would like to mention that in the present suit there is
prayer for permanent mandatory injunction in respect of shifting of the
trees and saplings installed just abutting the back side of the suit
premises. Thus, it is to be decided on merits and it is not by the
respondent as alleged, in view of prayer at the time of filing of this suit.
18 In this background, the respondent has denied that he has
been appointed as developer of defendant nos.1 to 4 society. Defendant
nos.1 to 4 have filed on record letter dated 18.09.2018 to show that
defendant no.5 has demarcated the plot boundary as site measurement
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of building no.85 known as “Kannamwar Nagar Omkar CHS Ltd” on
plot bearing CTS No.356 (pt)S.No.113(pt) of Village Hriyali. Further,
defendant nos.1 to 4 have filed copy of lay out plan prepared by
defendant no.5 in respect of suit property owned by defendant no.4
society. Thus, it appears that in the absence of proof of appoint of
respondent by defendant nos. 1 to 4 and further want of prima facie
proof in respect of alleged rights, the respondent is not necessary and
proper to the present suit under orderI Rule 10 of the Code of Civil
Procedure.
19 Thus, in view of reliefs claimed in the suit against the
defendants on the basis of alleged right regarding use of backside open
land of the suit shops, the respondent is not necessary and proper party
in the present suit. Therefore, Chamber Summons is to be dismissed.
With this, I proceed to pass the following order:.
ORDER
Chamber Summons No. 811 of 2019 is hereby dismissed
with costs.
2 Chamber Summons No.811 of 2019 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 23/08/2019. City Civil Court,
Gr. Bombay.
Dictated on : 23/08/2019
Transcribed on : 30/08/2019
Signed on : 31/08/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
31/08/2019 At 5.10 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
30/08/2019
Judgment/Order signed by P.O. on 31/08/2019
Judgment/Order uploaded on 31/08/2019
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