Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 141718 in Suit No.226583
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1417 OF 2018
IN
SUIT NO. 2265 OF 1983
(CNR NO.MHCC010044692018)
M/s. Zorastrain Radih Society & Others ….Plaintiff
Versus
Mr. Gunjan Avadu Rajabhar & Others ... Defendants
And
Mrs. Kalavati Rambali Yadav & Others ….Obstructionists
Appearance:
Advocate Shri. Mirza for plaintiff.
Advocate Shri. Kevin Gala for Original defendant No. 1 and 3.
Advocate Shri. Ashutosh Kaushik for obstractionist No. 13.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 01/03/2019
ORAL ORDER
1) Notice of Motion is filed by obstructionist Nos. 10
and 11 to carryout requisite tentable repairs of the premises
admeasuring 10'X40' including open space admeasuring 10'X10'
situated at Patral Chawl, Parsi Compound, near Islamia Madras
and Patel chalw, Behrambaug, Jogeshwari West, Mumbai 400
102 on the land bearing Survey No.42(part), CTS No.321 of
Village Oshiwara, Taluka Andheri, District Mumbai Suburban.
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2) The Notice of Motion is supported by Mr. Anand
Chandra Uppari. He on oath stated that he has filed S.C. suit
No.1232/10 against the plaintiff and defendants at City Civil
Court,Borivali division, Dindoshi Goregaon, Mumbai challenging
the decree which is the subject matter of present execution
proceeding. In the affidavit reply dated 27/01/11 and his
additional affidavit dated 17/10/12 he has raised specific
objections under Order 21 Rule 104 r/w Rule 101 of Code of
Civil Procedure. They are in exclusive use, occupation, possession
and enjoyment of the residentialcumcommercial premises. He
has constructed the premises prior to 1986 and since then he is in
use, occupation and possession of the suit premises. The suit
premises is in inhabitable condition. Obstructionist No.10 has
undergone a severe brain hemorrhage on 29/01/18. As a result,
the obstructionist was severely impacted leading to acute
paralysis of the right portion of his body. The obstructionist is
facing severe physical deformity that he is not able to stand on
his own and perform his usual movements answering nature
calls. In the rainy season due to sewage overflow the rain water
entered into the said premises which cause grave harm to the
obstructionist to reside in the premises. It is inhabitable.
Therefore, this Notice of Motion is filed to carryout certain
repairs which will enable obstructionist to reside in the premises
till decision of the obstruction in the execution proceeding.
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3) DH filed reply and has strongly objected for carrying
out the repairs. The reply is through affidavit of Mr. Khodayar
Irani. This application is to prolong the hearing of the objection
which is on the of written arguments. The obstructionist is trying
to repair the same without any right, title and interest in the suit
premises. The DH has further denied that there is construction
and related debris around the said premises and that due to
increase in density of debris the suit premises is low lying by 3 ft.
4) The DH contended that in the year 2010 when the
said obstructionist was expanding his room by putting bricks and
morter he had taken photographs of the extension being carried
out by him and had filed suit in Dindoshi for mandatory orders to
demolish the said extension. The said obstructionist withdrew the
suit with liberty to file a fresh suit and thereafter, filed fresh suit
No.1323/10 challenging consent decree in suit No.2265/83.
Unless and until the right of the parties are decided,
obstructionist has no right to carryout repairs and the loss shown
ion Exh.D of his affidavit in support. Hence, prayed to reject the
Notice of Motion.
5) Heard advocate Shri. Ashutosh Kaushik for
obstructionist and advocate Shri. Mirza for plaintiffs. Perused
contents of the Notice of Motion supported by affidavit and reply
of plaintiff in support by affidavit.
6) The decree is pending since 2008. The obstructionist
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has filed the objection claiming to have right, title and interest in
the premise. The parties have adduced evidence and said
objection which is to be decided as the suit is now for final
arguments.
7) This Notice of Motion is filed on the ground that
obstructionist No.10 has suffered brain hemorrhage. Therefore,
the suit premises required some repairs so that obstructionist
reside in that. The certificate of doctor is dated 03/03/18 (Exh.C)
Anand Chandra Uppari is suffered from brain hemorrhage was
treated in Holy Family hospital, Bandra on 29/01/18 and was
discharged on 16/02/18 for acute hemorrhage due to which he
has left side weakness and under the treatment for the same. He
is unable to attend the natures call. Photograph is also annexed
to show that suit premises is inhabitable conditions.
8) There is consent decree between the parties which is
under execution and now the objection raised by the
obstructionist is for final arguments. This Notice of Motion is filed
on 05/04/18 and now we are in 01/03/19. Almost one year has
been lapsed, there is nothing on record to show that
obstructionist has not yet recovered during the period of one
year. As obstructionist's application is for final argument. Hence,
no ground made out to carryout any repairs in the suit premises
wherein obstructionist is residing. The parties are directed to
argue the obstructionist's application as the same is expedited.
Considering the stage of the objection of obstructionist Notice of
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Motion is not tenable. Hence, pass following order:
ORDER
1. The Notice of Motion is rejected .
2. No order as to costs.
(S.S. Nagur)
Date : 01/03/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 01/03/2019
Transcribed on : 15/03/2019
Signed on : 15/03/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
15.03.2019 & 11.07 a.m. : Mrs. S.A. Shekade (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 01.03.2019
Order
Judgment/Order signed by the P.O. on : 15.03.2019
Judgment/Order uploaded on : 15.03.2019
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