Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1547-2019 IN SU 1045-19
CNR NO.MHCC01-004124-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1547 OF 2019
IN
L.C. SUIT NO.1045 OF 2019
Smt. Sheela Ramdhyan Chauhan ]....Plaintiff.
Versus
1. The Municipal Corporation for ]
Greater Mumbai & Ors. ]... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 20th June, 2019.
Mr. V.T. Dubey, Advocate for plaintiff.
Ms. Mhatre, Advocate for Defendant No.1./ MCGM.
Mr. Pratap Singh, Advocate for defendant No.2.
O R D E R
1. By this Notice of Motion the plaintiff has sought temporary
injunction to restrain defendant No.2 from taking forcible possession,
entering into the suit premises and dispossessing the plaintiff from the
suit premises i. e. Room /Zopada No.1, at Amrut Harjivandas chawl,
Opp. D.K. Mistry chawl No.5, Halav Pool, Masrani Lane, Kurla (W),
Mumbai 400 070. Temporary injunction is also sought against the
defendant No.1 MCGM to restrain it from further demolishing the suit
premises and interfering into plaintiff's possession on the above
mentioned suit premises.
-- 1 of 7 --
2 NM 15472019 IN SU 104519
2. In brief, the Affidavit in support of Notice of Motion states
that, a suit challenging Notice under Section 354A of the MMC Act
is pending. The plaintiff has taken out a Chamber Summons to
amend the suit and bring on record subsequent event. She relies on
the plaint/ Chamber Summons and the Affidavit in its support.
Initially the plaintiff had filed Suit Stamp No.17022 of 2018 in
which the statusquo order was passed and was continued till
2.4.2019. On 8.4.2019 the plaintiff applied for withdrawal of the
suit on account of formal defect in the suit, however, it was rejected
by this Court on 10.4.2019 at 1.00 p. m. At the same time
defendant No.1 and the Officers of defendant No.2 partly
demolished the suit premises, and defendant No.2 attempted to
take forcible possession of the suit premises. Defendant No.2
attempted to throw away plaintiff's articles. There is sudden and
grave apprehension that the plaintiff may be dispossessed by
defendant No.2. The plaintiff has got all the documents revealing
her possession on the suit premises and therefore the injunction as
sought is necessarily to be granted.
3. Defendant No.2 opposed the Notice of Motion on the ground
that on 10.4.2019 defendant No.1 has demolished entire suit
premises and thus the suit is rendered infructuous. The plaintiff had
illegally encroached upon the open plot of land opposite the room
of Shivmuni Chauhan. The documents relied upon by the plaintiff
are of another premises. In absence of relief granted by the Court,
defendant No.1 had demolished the entire suit premises allegedly
claimed by the plaintiff. The land beneath the suit premises belongs
to defendant No.2. The plaintiff cannot claim any relief beyond the
-- 2 of 7 --
3 NM 15472019 IN SU 104519
plaint pleadings. The Notice of Motion is thus not maintainable. No
injunction can be granted against the true owner. Adinterim relief
granted by the Court needs to be recalled. Plaintiff is misleading
the Court and is misusing the process of law.
4. Following points arise for determination against which
findings are recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Does plaintiff prove a prima facie case
in her favour?
In the Negative.
2. Whether the balance of convenience lies
in plaintiffs favour?
In the Negative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as sought
is refused?
In the Negative.
4. What Order ? Notice of motion is
dismissed with
costs.
REASONS
5. Perused. Heard.
As to point Nos.1 to 4.
6. The Advocate for plaintiff and defendant No.2 have argued in
the light of the pleadings of Motion and reply. They have also
argued on the documents produced by the plaintiff and defendant
No.2 with lists Exh.9 and 10.
7. Before adverting to the submissions advanced and the
documents placed on record in support of present Notice of Motion,
-- 3 of 7 --
4 NM 15472019 IN SU 104519
it is necessary to see whether the suit premises as described by the
plaintiff in the prayer Clause of Notice of Motion is in existence.
It is a matter of record that the plaintiff has taken out
Chamber Summons No.898 of 2019 seeking amendment to the
plaint. The same is made absolute by this Court by an Order dated
18.6.2019. In the Affidavit in support of Notice of Motion the
plaintiff has asserted that she relies upon the contents of Affidavit
filed in support of Chamber Summons. She also relies upon the
contents of the Chamber Summons. A bare look to the Affidavit
filed in support of Chamber Summons No.898 of 2019 reveals that,
the plaintiff has stated that on 10.4.2019 at 1.00 p.m. the
defendants jointly have demolished the suit premises. This
amendment is allowed by the Court. Thus the plaintiff has come
with a case that the suit premises is demolished. No case of partial
demolition is pleaded by the plaintiff while taking out the Chamber
Summons as well as in the Affidavit filed in support of the Chamber
Summons.
8. Learned Counsel for plaintiff relied upon the photographs
placed on record and claimed that there is only partial demolition of
the suit premises.
9. It needs to be mentioned that in Civil Proceedings the
evidence without pleadings cannot be looked into. The plaintiff has
come with a case that the suit premises is demolished i. e. in other
words, the plaintiff has not come with a case of partial demolition.
Hence, she cannot rely upon the photographs and claim that the
-- 4 of 7 --
5 NM 15472019 IN SU 104519
suit premises is partially demolished. If this course is allowed, this
Court will be acting upon the evidence without pleadings or
contrary to the pleadings. Thus, plaintiff cannot be allowed to
contend in the Notice of Motion that the suit premises is partially
demolished when it is seeking the amendment in the plaint that the
suit premises is demolished.
10. Considering the amendments sought and allowed by this
Court, the plaintiff's case is that suit premises is demolished. In such
circumstances, no injunction can be granted to protect plaintiff's
alleged possession on the suit premises which is already
demolished.
11. Bare perusal of the Notice of Motion taken out by the
plaintiff reveals that plaintiff is not seeking injunction from
dispossessing her from the open plot of land but the injunction is
sought against her dispossession from the suit premises which is a
room / Zopada. If the room itself is not in existence, as claimed by
the plaintiff herself, no question of granting any injunction as
sought will arise.
12. Here it also needs to be mentioned that on one hand, in the
affidavit in support of Chamber Summons, the plaintiff claims that
the suit premises is demolished however, on the other hand the
plaintiff's case, in the present Notice of Motion, is that the suit
premises is partially demolished. These contrary stands taken by the
plaintiff also is a reason not to grant an injunction to the plaintiff as
sought, since it raises serious doubt about the conduct of the
-- 5 of 7 --
6 NM 15472019 IN SU 104519
plaintiff. Consequently, I hold that no prima facie case is made out
by the plaintiff. Hence, I record negative finding on point No.1.
13. Considering the circumstances, the balance of convenience
does not lie in favour of plaintiff. In absence of existence of
structure i.e. suit premises the plaintiff cannot claim irreparable
loss, if the injunction is refused.
14. Advocate for defendant No.2 had relied upon Maria
Margardia Sequeria Fernandes Vs. Erasmo Jack De Sequeria's
case.
15. As already discussed the existence of suit room itself is not
established. The plaintiff is not seeking injunction in respect of the
open plot of land. Therefore, the arguments advanced with respect
to the ownership of defendant No.2 on the open piece of land and
the authority cited above need not be discussed. Hence in response
to point no.4, I pass the following Order:
ORDER
1. Notice of Motion 1547 of 2019 is dismissed with costs.
Sd/
(A.N. MARE)
Judge,
20/06/2019 City Civil Court, Mumbai.
Dictated On : 20.06.2019
Transcribed on : 20.06.2019
HHJ Signed on : 20.06.2019
-- 6 of 7 --
7 NM 15472019 IN SU 104519
“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
21.06.2019 4.15 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
20.06.2019
JUDGEMENT /ORDER signed by
P.O. on
20.06.2019
JUDGEMENT /ORDER uploaded
on
20.06.2019
-- 7 of 7 --