Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1330/2020 in S.C.Suit No. 2294/12. 1 Order.
MHCC010043752020
Presented on : 05-10-2020
Registered on : 05-10-2020
Decided on : 24-01-2025
Duration : 4 years, 3 months, 19 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1330 OF 2020
IN
S. C. SUIT NO. 2294 OF 2012
Jitendra Ochhavlal Shah )...Plaintiff
Versus
Mayur Jyoti Co-operative Housing Society Ltd. )...Defendant
Shri Ramchandran Narayanan, Advocate for the plaintiff.
Shri Vijay Vaghela, Advocate for the defendant.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 20th JANUARY, 2025.
ORDER
This notice of motion is moved by the defendant to appoint
the Court Commissioner and it be ordered that debries of collapsed
garage be removed. During the pendency of suit, original plaintiff is
expired, hence his legal representatives are brought on record. However
for the sake of convenience legal representatives are collectively
referred as the plaintiff.
-- 1 of 5 --
N/m No. 1330/2020 in S.C.Suit No. 2294/12. 2 Order.
2. The defendant contends that the plaintiff has no right and
interest over the suit garage. This Court has rejected his notice of
motion seeking permission to repair the suit garage. The plaintiff
preferred appeal vide Appeal From Order No. 1141/2015 before the
Honourable High Court. The Honourable High Court vide its order
directed this Court to dispose off the suit as earlier as possible within
one year from 17/08/2019. However no relief is granted in favour of
the plaintiff.
3. The defendant specifically submits that it had applied to
Assistant Municipal Commissioner on 29/07/2020 to remove debries of
collapsed part of suit premises or allow it to remove the same.
Thereafter again it filed same application-cum-letter dated 18/08/2020,
11/08/2020. However no permission is granted by Commissioner of
Municipal Council. Hence this notice of motion.
4. In reply, the plaintiff submitted that the defendant has not
approached to the Court with clean hand. There was dispute in between
the then Secretary of the defendant and the original plaintiff. Therefore
defendant did not allow plaintiff to carry out repairs to the suit garage
no.2. Therefore the plaintiff instituted this suit to prevent the defendant
from restraining the plaintiff to access the suit garage. The plaintiff is
and was ready to remove the demolished part of the suit garage at their
cost.
5. The plaintiff further states that there is no notice issued by
Municipal Corporation against the collapsed structure of the suit
premises. The suit premises belongs to the plaintiff. Therefore it is for
the plaintiff to take effective steps to remove such debris. Hence he be
-- 2 of 5 --
N/m No. 1330/2020 in S.C.Suit No. 2294/12. 3 Order.
permitted for the same. Therefore prayed to restrain the defendant or
direct it to allow the plaintiff to remove such debris. Hence prayed to
reject the notice of motion.
6. Learned advocate for the defendant argued that if reply of
the plaintiff is taken into consideration, it is seen that plaintiff is not in
possession of the suit garage. This Court has appointed Court
Commissioner which has filed report dated 27/04/2013. If documents
alongwith notice of motion and report are taken into consideration, it is
seen that entire suit garage is collapsed and it is dangerous to the
person residing within its vicinity. Therefore the defendant being lawful
owner of suit garage be directed to remove the debris. Hence prayed to
allow notice of motion.
7. On the contrary, learned advocate for the plaintiff submits
that there is ample evidence on record to say that the defendant treated
mother of plaintiff as a member of defendant society. If the plaintiff is
permitted to remove the debris, no loss will cause to the defendant. On
the contrary, if the defendant is permitted, it will remove entire
structure. Hence prayed to reject the notice of motion.
8. At the outset, it is necessary to note that the plaintiff in his
reply have specifically stated that he be permitted to access the suit
garage to remove the debris. It impliedly suggests that plaintiff is not in
possession of the suit garage. The report of Court Commissioner and
documents appended to the notice of motion prima facie show that the
suit garage is collapsed and it has become dangerous to the person
living in the society of the defendant. It is needless to state that it is for
the Municipal Corporation to issue notice to the lawful occupier of the
-- 3 of 5 --
N/m No. 1330/2020 in S.C.Suit No. 2294/12. 4 Order.
building which has become dangerous to demolish it or repair it. In
such circumstances, there was no occasion to appoint the Court
Commissioner to inspect the suit building.
9. However now it is brought on record that Court
Commissioner is appointed and through Court Commissioner it is
brought on record that suit garage is collapsed and plaintiff is out of
possession. Whether the plaintiff has right or interest over the suit
garage is matter of trial and enquiry to be adjudicated at the time of
final hearing of the suit. Both parties to the suit are ready to remove the
debris. The plaintiff seeks access to the suit garage to remove the debris.
In such circumstances, when it is brought on record that plaintiff is out
of possession of suit garage, if he is permitted to remove debris of suit
garage, there is every possibility that he may restore possession under
the pretext of order of this Court. In such circumstances, it is just and
proper to direct the defendant being the society of suit garage to
remove the debris. It will serve the purpose of notice of motion and will
also serve the interest of justice.
10. At the cost of repetition, it is apt to note that there is no
dispute that the suit garage belongs to the member of the society
defendant and it was in existence. Who is lawful entitled to share right
and interest thereupon is matter of trial and enquiry. In the result,
following order is passed :
- ORDER -
1. Notice of Motion No. 1330/2020 is allowed and the defendant is
directed to remove the debris of the suit garage keeping its reord of
expenses and submit affidavit in compliance on record within three
months of the order.
-- 4 of 5 --
N/m No. 1330/2020 in S.C.Suit No. 2294/12. 5 Order.
2. Accordingly N/m No. 1330/2020 is disposed off.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 20/01/2025. Mumbai.
1. Dictated on : 20/01/2025.
2. Transcribed on : 24/01/2025.
3. Placed for correction on : 24/01/2025.
4. Checked on : 24/01/2025.
5. Correction carried on : 24/01/2025.
6. Signed on : 24/01/2025.
7. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
24/01/2025. 5.45 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 20/01/2025.
Judgment/Order signed by P.O. on 24/01/2025.
Judgment/Order uploaded on 24/01/2025.
-- 5 of 5 --