Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1398/2020 ..1.. L.C. Suit No.1115/2020
CNR NO.MHCC01-004324-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No. 1398 OF 2020
IN
L.C. SUIT NO. 1115 OF 2020
Smt. Darshana Narendra Worlikar )
Aged about 66 years, of Bombay, adult, )
Indian Inhabitant Residing at House )
No.509 & 509 A B.K. Worlikar House, )
Kesharinath Buva Bhayre Marg, Worli )
Koliwada, Mumbai – 400 030 )...Plaintiff
Vs.
The Mumbai Municipal Corporation of )
Gr. Mumbai, A body incorporated under the)
provisiona of M.M.C. Act having their office)
situated at Mahapalika Bhavan, Mahapalika)
Marg Mumbai – 400 001 )
Through Asst. Municipal Commissioner )
G/South Ward office, N.M. Joshi Marg, )
Mumbai – 400 013. )....Defendant.
APPEARANCE:-
Ld. Adv. Mr. Ashok M. Sarogi for the plaintiff.
Ld. Adv. Mrs. Dipali patil for the defendant/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 14th October, 2020.
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O R D E R
Read Notice of Motion, reply filed by defendant MCGM.
Heard both the learned advocates. Perused the file.
2. This notice of motion is moved by plaintiff praying to
restrain defendant from causing obstruction to plaintiff for carrying out
tenantable repairs to premises bearing House No.509 and 509 A
situated at B.K. Worlikar House, Keshrinath Buva Bhaye Marg, Worli
Koliwada, Mumbai – 400 030.
3. Learned advocate for plaintiff argued that plaintiffs want
to carry out the tenantable repairs in suit premises as per the rules of
BMC. If the repairs carried out are not as per rules, the defendant
MCGM can take action.
4. Learned advocate for defendant MCGM has vehemently
submitted that the property described in the plaint and notice of
motion are different. Plaintiff has not properly described the suit
premises thereby has not complied Order 7 Rule 3 of Civil Procedure
Code. Plaintiff had applied vide letter dated 11.02.2020 for carrying
out repairs to MCGM. MCGM had replied the aforesaid letter of
plaintiff by their reply letters dated 29.02.2020 and 09.03.2020
directing plaintiff to make compliance of some documents failing which
it will be assumed that plaintiff is not interested in carrying out repairs
and her application will be filed. Despite their letters, plaintiff has not
complied till this time. Plaintiff has concealed the aforesaid fact from
this court. Therefore, plaintiff is not entitled to seek any relief as is
prayed in notice of motion. The aforesaid corrospondence has been
pleaded and referred in their reply cum written statement. For
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aforesaid reasons, she has requested for dismissing the notice of
motion.
5. In reply arguments, learned advocate for plaintiff has
strenously submitted that defendant MCGM cannot rely upon the
aforesaid documents dated 11.02.2020, 29.02.2020 and 09.03.2020 as
they are not tendered by way of affidavit. He relied upon the
observations in
Kamala Maria Bari V/s. MCGM in Appeal No.760/2015
decided on 05.06.2017.
6. I have given anxious consideration to arguments of both
the learned advocates. As regards the objection of learned advocate for
defendant with respect to difference in the description of suit premises
in plaint and notice of motion, on perusal of plaint, it prima-facie
appears that plaintiff has knocked the doors of the court with respect to
the suit premises i.e. House No.509 and 509 A. This description of suit
premises is found in paragraph-13 as well as in prayer clause-26 a, b
and c of plaint. According to plaintiff, she is also lawful owner of
premises situated at House No.82/C Worli Koliwada, Worli Mumbai-
400 025, which she has described in paragraph-1 of plaint. However,
from the entire body of the plaint it appears that plaintiff is not
claiming any relief with respect to House No.82/C Worli Koliwada but
she is claiming the relief with respect to suit premises bearing House
No.509 and 509 A situate at B.K. Worlikar House. Learned advocate for
defendant MCGM appears to be misguided on account of the
description of premises mentioned in paragraph-1 of plaint. The notice
of motion is also having prayer with respect to premises bearing House
No.509 and 509 A situate at B.K. Worlikar House. Therefore, there is
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no difference in description of suit premises in plaint as well as notice
of motion. The arguments of learned advocate for plaintiff on this
factum deserves to be accepted as against the arguments of learned
advocate for defendant MCGM.
7. Coming to the second set of arguments advanced by
learned advocate for defendant MCGM, on perusal of the pleadings and
written statement, it prima-facie appears that defendant MCGM has
specifically pleaded in paragraph-8 C and D of reply cum written
statement that plaintiff had applied vide application dated 11.02.2020
for permission of repairs to her House No.509 and 509 A situate at B.K.
Worlikar House (hereinafter referred as “suit premises” in short).
Further the fact of defendant MCGM replying through their reply letters
dated 29.02.2020 and 09.03.2020 to the aforesaid application of
plaintiff is also specifically pleaded. Though there is reference of
annexing the copies of these letters along with the reply cum written
statement, same do not appear to be annexed. However, later on, on
08.02.2020 defendant MCGM has tendered on record the aforesaid
documents along with the list of documents and the copy is served to
other side. The matter was argued by both sides. Learned advocate for
plaintiff had requested time for giving citation which was granted to
plaintiff. Plaintiff had opportunity to make submissions on the
documents relied upon by the defendant. It is further pertinent to note
that plaintiff has not sought time to rebut or counter the aforesaid
documents relied upon by defendant. It is also equally important to
note that the documents which defendant relied upon are the
corrospondences initiated by plaintiff herself. Therefore, if defendant
MCGM has filed those documents, plaintiff will not be taken by
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surprise. On the contrary, plaintiff has filed the application dated
11.02.2020 in another suit namely L.C. Suit No.181/2020. However, in
that suit, plaintiff has concealed fact of receiving reply from MCGM and
with respect to directions of compliance from MCGM. Neither at that
time the then advocate for defendant had pointed out that reply was
given by defendant MCGM and that plaintiff has concealed the said
fact. The application was not seriously objected by the then learned
advocate for defendant in L.C. Suit No.181/2020. Therefore, it was
allowed.
8. What I want to point out is that plaintiff has knowledge
about her application dated 11.02.2020, the letters received by
defendant MCGM dated 29.02.2020 and 09.03.2020. However, plaintiff
has concealed these facts from court. On the contrary, learned advocate
for plaintiff has relied upon the observations in the case of
Kamala
Maria Bari cited supra. It is important to note that in this citation
observations are made by Hon’ble High Court giving guidelines to
accept the documents on record by way of affidavit. The Hon’ble High
Court was deciding the appeal against the ad-interim order passed by
the City Civil Court. Why Hon’ble High Court has made such
observations is important to my mind before applying them.
9. On going through the cited judgment, it clearly reveals
that, off hand the documents if placed on record, they do not become
part of record of the case. Such documents relied upon by party off
hand, do not become part of record. They are not entered in the
appeal, paper book or compilation which create inconvenience and
contraversy in further proceedings. In nutshell, if parties rely upon any
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document, they should become part of record of court so that it
becomes convenient or does not create any contraversy in further
proceedings.
10. In present case as discussed above, defendant MCGM in
reply had challenged the case of plaintiff on this ground by specifically
pleading in paragraph-8 C and D of their written statement. Though
such letters were not annexed with the written statement, they were
subsequently tendered on record by list of documents thereby
becoming part of record. I have already discussed above that this
corrospondence which is relied upon by defendant was intiated by
plaintiff herself. Therefore, it cannot be said that plaintiff will be taken
by surprise if such documents come on record. Furthermore, if plaintiff
needed time to counter these documents he could have sought time
which as discussed above was not asked by plaintiff. Therefore, in my
opinion, plaintiff cannot take shelter of these observations in the cited
judgment relied upon by him. We are not at ad-interim stage. When the
documents were amply pleaded in reply cum written statement which
is on oath in the form of affidavit and had become part of record of this
suit by way of the list of documents, the observations in this citation
will not help plaintiff.
11. In the application dated 11.02.2020, plaintiff had clearly
stated that her house is in completely dilapidated condition and she
wants to reconstruct by making tenantable repairs and for same she
had applied for permission by this application. In the reply given by
MCGM by their letters dated 29.02.2020 and 09.03.2020, plaintiff was
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asked to make compliance of some documents within 15 days failing
which her application would be filed.
12. There is nothing on record that the plaintiff has complied
the aforesaid directions given by defendant MCGM. Neither learned
advocate for plaintiff has made any submissions with respect to these
documents. In such circumstance, why the arguments of learned
advocate for defendant MCGM should be disbelieved prima-facie at this
stage that plaintiff failed to comply the directions given by the
defendant MCGM and without compliance and concealing these facts
has rushed to court to get interim relief.
13. When plaintiff in her application states that her house is in
completely dilapidated condition, and when further plaintiff is
declining to comply the directions given in the aforesaid reply letters,
regarding authenticity of structure etc. it smells something fishy. It
prima-facie appears that plaintiff is trying to conceal some things and
get orders from court. The conduct of plaintiff do not appear to be
clean.
14. It is settled legal postion as on today that a party seeking
equitable relief from court, must come in court with clean hands and
with all cards open. I have already discussed above that in L.C. Suit
No.181/2020 plaintiff got order concealing about the reply letters
given by defendant MCGM dated 29.02.2020 and 09.03.2020. Even in
present case, despite filing the aforesaid reply letters of defendant
MCGM, plaintiff kept mum on these reply letters. The silence of
plaintiff speaks volume. One who seeks equitable relief must come in
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court with clean hands. Prima-facie it appears that plaintiff has not
approached the court with clean hands. Prima-facie it appears that
plaintiff is avoiding to comply the aforesaid reply letters and has
chosen easy way to get interim relief from this court which is abuse of
process of law.
15. For all aforesaid discussion, I cannot conclude that plaintiff
has made out prima-facie case to get interim relief as is prayed. Both
the other factors i.e. irrepairable loss and balance of convenience also
cannot tilt in favour of plaintiff. Therefore, plaintiff is not entitled to
equitable relief as is prayed. Accordingly, I proceed with following
order-
ORDER
1. Notice of Motion No.1398/2020 is hereby dismissed.
2. Costs in cause.
3. Notice of Motion No.1398/2020 is disposed of accordingly.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 14.10.2020 City Civil Court, Gr. Bombay
Dictatly dictated on computer : 14.10.2020.
Checked on : 15.10.2020.
Signed on : 17.10.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 19.10.2020, 10.54 am.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
14.10.2020
JUDGMENT/ORDER signed by P.O.
on
17.10.2020
JUDGMENT/ORDER uploaded on 19.10.2020
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