Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1990 OF 2019
IN
S.C.SUIT NO.1119 OF 2019
1. Smt.Samruddhi Dilip Sawant,
2. Ms.Kashhmira Dilip Sawant ... Plaintiffs
Versus
1. Mr.Jayant Dinkar Patil,
Prop. of Asha Warehousing Agency,
2. Mrs.Tejashree PatilPradhan,
3. Mrs.Harshala Jayant Patil
Prop. of Laxmi Warehousing Aency ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 30th JANUARY, 2020
Mr.Amey Mahajan, ld. adv. for plaintiffs.
Mr.A.J.Jadhav, ld adv. for defendants.
O R D E R
1. This notice of motion is taken out by plaintiffs for
temporary injunction restraining defendants from unlawfully entering
and/or using the washroom of Gala no.10 i.e. suit premises as more
particularly shown in Exh.G colly. annexed to the plaint i.e. map at page
no.32 of the plaint. Plaintiffs have also prayed for temporary mandatory
injunction for directions to defendants to reerect the wall at the costs of
defendants, which was common wall between the washroom of Gala
no.10 and Gala no.9 which has been allegedly demolished by
defendants and to restore said wall to its original position with
plastering and tiling. Plaintiffs have also prayed for temporary
injunction for restraining defendants from using said washroom and
from making structural modification, alteration and changes in between
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gala nos.9 and 10 situated below Mahalaxmi Bridge, Racecourse side
Dr.E.Moses Road, Mahalaxmi, Mujmbai34. Plaintiff no.2 Ms.Kashmira
Dilip Sawant has filed her affidavit in support of notice of motion
contending that she is intending to rely upon the contentions raised in
the plaint. It is further contended that if the reliefs as prayed in notice
of motion will not be granted she will suffer from grave and irreparable
loss and injury, balance of convenience lies in their favour. According to
plaintiffs, no harm or prejudice will be caused to defendants if those
reliefs will be granted.
2. Plaintiffs have contended in the plaint that they are
carrying on business namely Mahalaxmi Warehousing Agency at Gala
nos.10, 11 and 12 below Arch of Mahalaxmi Bridge, Racecourse side
Dr.E.Moses Road, Mahalaxmi, Mujmbai34. They have claimed
perpetual injunction against defendants for restraining them from
entering into washroom situated in gala no.10 from those galas.
Defendant no.1 is the proprietor of Asha Warehousing Agency.
Defendant no.2 is the daughter of defendant no.1 and defendant no.2 is
his wife. Defendant no.1 is proprietor of Laxmi Warehousing Agency
and defendant nos.1 to 3 are carrying out business at Gala nos.8 and 9
below Mahalaxmi Bridge, Racecourse side Dr.E.Moses Road,
Mahalaxmi, Mujmbai34.
3. It is contended that originally Mr.Dilip Sawant, the
proprietor of Mahalaxmi Warehousing Agency, was a lawful subtenant
of above referred galas. He has obtained subtenancy from M/s.Oriental
Metal Pressing Works Pvt.Ltd. formed by Mr.Dadoba K.Thakoor who
died in 1957 and who was tenant of BMC in respect of Gala nos.8 to 16.
According to plaintiffs, Mr.Dilip Sawant was lawful subtenant of gala
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nos.10, 11 and 12 and in possession of gala no.10 and 11. Plaintiffs are
paying monthly rent to M/s.Oriental Metal Pressing Works Pvt.Ltd.
Plaintiffs have annexed to the plaint copies of documents about such
rent payment. Mr.Dilip Sawant was husband of defendant no.1 and he
died in the year, 2015. He was father of plaintiff no.2. Plaintiff no.1 is
suffering from paralysis since 2010 and plaintiff no.2 is Constituted
Attorney of plaintiff no.1 who is suffering from Epilepsy since 2015.
Since Dilip Sawant was occupying of Gala nos.10, 11 and 12 he was
carrying on his business in those galas. Copy of BMC notice dated
22/03/1991 is annexed to the plaint. In 1995 Mahalaxmi Warehousing
Agency had applied with Assistant Commissioner of Food and Drug for
permission for selling for medicines. Copy of said permission is annexed
to the plaint. Copy of letter dated 20/07/1995 along with copy of
sanctioned map issued by Asst.Commissioner, F & D clearly
demonstrates that the washroom in question was part of gala nos.10
and 9 has no access to said washroom. Reference of two suits between
plaintiffs and defendants in respect of gala no.12 is also given in the
plaint.
4. It is contended that on 21/08/2018 when renovation of
gala nos.10 and 11 was going on at 4.30 p.m. defendant no.2 visited
those galas and asked plaintiffs to immediately stop said work saying
that otherwise he will break open the washroom from other side.
Defendant no.2 said that said place belongs to him. Again on same date
at 6.00 p.m., defendant no.2 again visited gala nos.10 and 11 and told
the employees of plaintiffs that he will see that those employees will not
get a drop of water from next day. It is alleged that on 21/08/2018 at
about 11.00pm. in the night, defendant no.1 illegally break the common
wall between washroom of gala no.10 and gala no.9. Said wall was
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removed with the help of 34 labours under the directions of defendant
no.1. The debris of said demolition was loaded in a Tempo.
Photographs of alleged broken wall are annexed to the plaint.
Allegations about stopping water supply are also made by plaintiff.
Reference of the complaint filed by plaintiff no.2 with police on
22/08/2018 is also given in the plaint. It is alleged that on 26/08/2018
defendant nos.1 and 2 made cement frame to broken wall of gala no.9
and they are in the process of fitting new bracket for door between
washroom of gala nos.9 and 10 for using the washroom and for
usurping plaintiff. Complaint to that effect was filed by plaintiffs on
22/08/2018 with concerned police station and reference to that effect is
given in the plaint. It is alleged that on 03/09/2018 defendant nos.1
and 2 fixed the door with transparent glass on the cement frame of the
broken wall. Its photograph is annexed to the plaint. According to
plaintiffs, on 09/09/2018 at 10.30 a.m. security guard informed
plaintiffs that defendant no.1 was doing construction activity in the
washroom of gala no.10, again plaintiffs lodged complaint with Tardeo
Police Station. Hence, according to plaintiffs, the reliefs as prayed in
the plaint are necessary to be granted.
5. Reference of the construction of wall at indoor entrance of
gala nos.1 and 12 is also given in the plaint. Allegations about
restraining plaintiffs from dispossessing defendant no.1 from gala
nos.12 and 13 and restraining plaintiffs from demolishing the wall
between gala nos.11 and 12 is also given in the plaint. Plaintiffs have
given reference about suit filed for recovery of possession of gala no.12.
Reference of suit no.273/2019 filed before Hon'ble High Court is given
in the plaint. According to plaintiffs, they are maintaining gala
nos.10,11 and 12 and they are paying maintenance charges as well as
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assessment taxes etc. for those galas. It is alleged that defendant no.1
has engaged plaintiffs in multiple proceedings. Hence, according to
plaintiffs the reliefs claimed in plaint and notice of motion are necessary
to be granted.
6. Defendant no.1 has filed his affidavit of reply to resist the
notice of motion contending that he had also filed one suit
no.1677/2018 against plaintiffs in respect of gala nos.12 and 13. Said
suit is for declaration and injunction. It is alleged that notice of motion
no.3345/2018 filed by plaintiffs of this suit in suit no.1677/2018 is
already dismissed by the Judge of Court room no.1 of City Civil Court
on 10/04/2019. It is admitted that plaintiffs are carrying on their own
business in the name and style shown in the plaint. It is specifically
contended that the washroom is situated in gala no.9 which is occupied
by defendant nos.2 and 3. Defendant no.3 daughter of defendant no.1
is doing the business of pottery and defendant no.2 is carrying on the
business of Laxmi Warehousing Agency. It is further contended that
since inception washroom in question is situated in gala no.9 and
defendants have no concern in any way with gala no.10. Defendants
have annexed the copy of sanctioned plan dated 01/12/1944 issued by
BMC and it is annexed to the affidavit of reply at Exh.B. It is admitted
that plaintiffs are subtenants of Dadoba Thakoor who was tenant of
BMC in respect of gala nos.8 to 6 but it is specifically denied that
plaintiffs are lawful subtenants in respect of gala no.10. It is contended
that defendants do not know that in 1995 plaintiffs applied with
Asst.Commissioner of F and D, BMC for permission for selling the
medicine. It is contended that the plan of the year, 1995 which is
produced by plaintiffs is the plan prepared individually and it is not the
sanctioned plan but the sanctioned plan is of 01/12/1944 which clearly
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demonstrates that the washroom is the part of gala no.9. It is denied
that on 21/08/2018 renovation of gala nos.10 and 11 was going on and
on that date defendant no.2 has asked plaintiffs to stop said work
immediately saying that otherwise he will break open washroom door
from other end. It is contended that gala nos.8 and 9 stands in the name
of defendant no.2 who is carrying on her business in it. At the costs of
repeatation it is contended that the washroom is situated in gala no.9.
7. The alleged incidents of 21/08/2018 are denied by
defendants and it is contended that washroom from gala no.9 which is
occupied by defendant no.2 was demolished by defendant no.1
However, said washroom is not situated in the premises of plaintiffs and
plaintiffs have no concern in any way with it. It is denied that
defendants have illegally stopped water supply of gala nos.10 and 11.
It is contended that defendants are not aware about complaints filed by
the plaintiffs, however defendant no.1 has also lodged complaint
against plaintiffs. It is denied that on 26/08/2018 defendants have
installed the cement frame to the broken wall and on 03/09/2018 they
have fixed the door with transparent glass on said broken frame. It is
contended that the construction activities were done by defendants in
washroom of gala no.9 and not in gala no.10. According to defendants,
they are not doing any illegal activities and it is contended that
plaintiffs are not entitled to the reliefs as prayed for. Allegations made
in respect of gala nos.11 and 12 are denied by defendants. However,
filing of the suit by plaintiffs against defendants in Hon'ble High Court
is admitted by defendants but it is contended that contentions raised in
the said suit are false and frivolous. According to defendants said suit is
filed to harass defendants. It is denied that plaintiffs are maintaining
three galas but they are in possession of two galas i.e. gala nos.10 and
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11. It is alleged that plaintiffs have filed false complaint against
defendants. It is denied that on 21/08/2018 defendant no.1 had broken
the common wall between washroom of gala nos.10 and 9. It is
contended that plaintiffs have not made out prima facie case for
granting the reliefs as prayed in the notice of motion. Hence, according
to defendants the notice of motion is necessary to be dismsised.
8. I have heard plaintiffs advocate Mr.Mahajan on
17/09/2019 when he has argued for adinterim reliefs. It is submitted
that the disputed washroom is part of gala no.10 and defendants have
broken the wall between gala no.9 and said washroom, initially
defendants installed cement frame and later on fixed a door in said
frame. Plaintiffs' advocate argued that now defendants are causing
obstruction in plaintiffs' use of said disputed washroom. According to
plaintiffs' advocate, plaintiffs are possessing said washroom. It is argued
that on 22/08/2018 the wall between gala no.9 and disputed
washroom was broken by defendants therefore plaintiffs have filed
notice of motion no.3345/2018 in Suit no.1677/2018 pending before
the Court room no.1, City Civil Court, Mumbai. Said notice of motion is
disposed off by said Court on the ground that washroom of gala no.10
was not subject matter of suit no.1677/2018 and thereafter plaintiffs
have filed this suit because the order in notice of motion no.3345/2018
was passed by Court room no.1 on 10/04/2019. According to plaintiffs'
advocate, defendants are causing obstruction into plaintiffs use of
disputed washroom. The plan which is annexed at page no.32 of the
plaint was referred by plaintiffs' advocate along with photographs of
disputed washroom which are filed at page no.33, 58 and 64 of the
plaint. Plaintiffs' advocate argued that due to obstruction caused by
defendants, plaintiffs have also filed report with police.
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9. On said date defendants' advocate argued and placed
reliance on the xerox copy of the sanctioned plan dated 11/12/1944
which was sanctioned by BMC and which was submitted for getting
construction permission of disputed premises. However, said plan was
not legible, hence Court has directed defendants to produce the legible
copy of said plan so that Court can ascertain the fact that exactly where
the disputed washroom is situated. It is pertinent to note here that on
said date Court has observed that unless the Court peruses the said
legible copy of plan submitted to BMC for construction of the premises
in which gala no.9 and 10 are situated, it will not be better on the part
of the court to grant any adinterim relief.
10. On 10/10/2019 defendants' advocate produced coloured
legible copy of approved plan of gala no.9 which is showing that the
washroom exists in said gala. On said date plaintiffs' advocate
submitted that he will file on next date the copy of approved plan
showing that washroom is also existing in gala no.10. However, from
the record it becomes clear that plaintiffs' advocate was not able to
produce any approved plan showing that the disputed washroom exists
in gala no.10. On perusal of the copy of approved plan it becomes clear
that disputed washroom is situated in gala no.9 and not in gala no.10.
In respect of the plan which is annexed with the plaint at page no.32, it
can be said that it was the plan got prepared by plaintiffs for submitting
it before Asst.Commissioner, F and D Department, BMC for getting
permission for selling medicine in plaintiffs' premises. The plan at page
no.32 of the plaint which is prepared by the plaintiffs cannot have
legitimate value against the approved plan sanctioned by BMC while
giving permission for the construction of the premises in which gala
nos.9, 10 and 11 or 12 etc. are situated. I remember very well that
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plaintiffs' advocate has strongly argued that the sanctioned plan was
granted long back in the year, 1944 and thereafter much changes have
taken place. Therefore, according to plaintiffs' advocate, the disputed
washroom is not existing in gala no.9 as shown in sanctioned plan.
According to plaintiffs' advocate, the sanctioned plan cannot be
considered after 70 years for ascertaining the situation of disputed
washroom. I am unable to accept said submission made on behalf of
plaintiffs mainly because sanctioned plan has got its own validity and
legal value. If at all some changes are made in the construction which
was made as per original sanctioned plan or some changes if they are
made contrary to the sanctioned plan, such changes or such
construction can be called illegal construction or illegal changes but
such illegal construction and illegal changes cannot change the validity
and legal value of the sanctioned plan of 1944. On the contrary, the
sanctioned plan of 1944 has much more value because in1944 the BMC
officers may not have the heavy work as like the heavy work load as on
today and at the time of sanctioning approved plan in 1944, the then
officers of BMC have taken much care than the care which is expected
to be taken as on today. In such circumstances, the sanctioned plan of
01/12/1944 has not only got legal sanctity but it has the value of
historical document also. In that sense the plan prepared by plaintiffs
in the year, 1995 cannot be considered at all. Actually, in 1995 also
plaintiffs were expected to prepare and submit the plan as like the copy
of sanctioned plan, however, it seems that some different plan is
prepared by plaintiffs in the year, 1995 and it seems that Asst.
Commissioner, F and D of BMC has considered said plan of 1995
prepared by plaintiffs without comparing it with original sanctioned
plan. Thus, the plan of 1995 cannot have the value as against the
sanctioned plan of 1944. On the contrary, it can be said that the then
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Asst. Commissioner, F & D of BMC has carelessly granted permission in
1995 in favour of plaintiffs. Anyhow, said permission granted by Asst.
Commissioner of F and D of BMC to plaintiffs for selling medicine in
plaintiffs' premises is not the subject matter of this suit but as plaintiffs
are intending to rely upon the plan annexed to the said permission,
Court was required to consider the said plan carefully and said
permission was required to be criticized by the Court. In such
circumstances, as the washroom in question as per sanctioned plan of
1944 is existing in gala no.9 and not in gala no.10, I find that plaintiffs
have failed in making out prima facie case for granting the reliefs as
sought in notice of motion as the washroom in question is shown in gala
no.9, as per approved plan of the construction, I find that, if the reliefs
as prayed by plaintiffs in notice of motion will be granted it will cause
inconvenience to the defendants because the reliefs in notice of motion
are contrary to the approved plan. Considering the aspect of
inconvenience which may be caused to defendants on granting the
reliefs as prayed, I find that balance of convenience lies in favour of
defendants and it does not lie in favour of plaintiffs. Further if this
Court will grant reliefs as prayed in notice of motion, it will amount to
give gobye to the approved plan which is the basis of the construction
of gala nos.9 to 12 or gala nos.8 to 16 or other galas and thereby
defendants valuable rights in respect of disputed washroom which is
shown in gala no.9 will get affected and thereby defendants may suffer
from loss. At this juncture, as the approved plan is not supporting
plaintiffs' case, I find that plaintiffs will not suffer from any loss on
rejection of the prayers as claimed. From all above discussion, it
becomes clear that plaintiffs have failed in proving prima facie case,
balance of convenience does not lie in favour of plaintiffs and plaintiffs
will not suffer from any loss on rejection of the reliefs prayed for. As
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such plaintiffs have failed in making out all the three essential
ingredients for granting temporary injunction as prayed by the
plaintiffs.
11. Plaintiffs have further prayed for temporary mandatory
injunction against defendants if such temporary mandatory injunction
will be granted against defendants without giving the opportunity to the
parties to prove their rival contentions, it will amount to grant the
decree without giving opportunity to parties to prove their own case
and own defences. Hence, I find that the reliefs for temporary
mandatory injunction as prayed in notice of motion also cannot be
granted. For all above reasons, I conclude that notice of motion is
necessary to be dismissed. Hence, I proceed to pass the following order.
O R D E R
Notice of Motion no.1990 of 2019 stands disposed off/dismissed.
Sd/
(K.P.NANDEDKAR)
30/01/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 30/01/2020
Transcribed on : 31/01/2020
Signed by HHJ on : 03/02/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
04/02/2020 02.20PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 30/01/2020
Judgment/order signed by P.O on 03/02/2020
Judgment/order uploaded on 04/02/2020
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