Interim Order 1

Order Details: Notice of Motion
Pdf Text: ..1..
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
DRAFT NOTICE OF MOTION NO................./2020
IN
STAMP NO. 5221 OF 2020
Priyadarshini Dasharath Mitna
Age: 51 years, Occ: Housewife,
Res: Room No. M/3125/C-196/CENSUS No.1571,
Shankar Temple, Anik Village,
Mahul Road, Chembur, Mumbai 400074. .. Plaintiff.
Versus
1. Sunanda Deepak Mhatre
Age: 42 years, Occ: Housewife
2. Jyoti Jitendra Mhatre
Age: 43 years, Occ: Housewife
3. Jyotsna Janardhan Mhatre
Age: 38 years, Occ: Housewife
4. Prerna Gavan Patil.
Age: 30 years, Occ: Housewife
All are resident address at Mhatre
House, Anik Gaon, Shankar Temple,
Mahul Road, Chembur,
Mumbai 400074. .. Defendants.
Advocates
Anil Kharatmol for the plaintiff.
Yogesh Keny for defendant no.2 to 4.
Defendant no.1 absent hence proceeded ex-parte.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(Court No.: 2)
DATED : 29th October, 2020
-- 1 of 10 --
..2..
ORAL ORDER
Heard both parties on notice of motion filed on behalf of the
plaintiff for grant of temporary injunction in terms of prayer clause (a)
thereby restraining defendants or anybody on their behalf from
disturbing and/or dispossessing the plaintiff from suit premises i.e.,
Room no.M/3125/C-196/Census no.157/1, Shankar Temple, Anik
Village, Mahul Road, Chembur, Mumbai -4000 74 without following due
process of law.
2. Defendant no.1 remained absent in spite of service of notice
hence proceeded ex-parte. Perused the notice of motion supported by
affidavit, plaint, documents, affidavit in reply of defendant no.2 to 4 to
the notice of motion.
3. Relevant facts to decide notice of motion are that plaintiff is in
use and possession of suit premises since the year 1995. Plaintiff is
residing in suit premises alongwith her family. Defendant no.1 to 4 are
neighbours of the plaintiff. Suit premises is situated on plot no.342
which belongs to the State of Maharashtra. Ganpat Bechar Patel, father-
in-law of the plaintiff was in possession of suit premises since prior to
1963. Suit premises was in the name of father-in-law of the plaintiff. He
transferred all rights of suit premises in favour of the plaintiff vide
Indemnity Bond and Affidavit-cum-Declaration dated 06.12.1999.
Plaintiff's husband Dashrat and father-in-law Ganpat Patel had changed
their surname from Patel to Mitna vide Gazette Notification of
06.02.1992 and 02.01.2003.
4. Suit premises was in dilapidated condition and required
immediate repair. Hence the plaintiff applied to MCGM for permission
-- 2 of 10 --
..3..
to repair suit premises. After due process of law, office of MCGM issued
permission to repair suit premises vide letter dated 17.02.2020. Then
Deepak Mhatre, husband of defendant no.1 given complaint to the
office of MCGM about construction of suit premises by the plaintiff.
Then MCGM issued notice dated 19.03.2020 under section 354(A) of
the MMC Act to the plaintiff. Plaintiff immediately produced all relevant
documents to the office of MCGM. Hence office of MCGM issued letter
dated 25.07.2020 to the office of Addl. Collector, Chembur as the land
on which suit premises is situated belongs to the Government. Then
office of MCGM issued letter dated 02.09.2020 to the husband of
defendant no.1 informing that notice under section 354(A) of the MMC
Act is withdrawn.
5. On 11.10.2020 at about 9.30 am, husband and son of defendant
no.3 alongwith anti social elements given threat of life to the plaintiff
not to conduct repair work of suit premises. Hence plaintiff lodged
report but police issued receipt of Non Cognizable offence.
6. Then Deepak Mhatre, husband of defendant no.1 instituted Long
Cause Suit No.1156/2020 in the Bombay City Civil Court against the
MCGM and the plaintiff & her husband (Now pending in Court Room
No.8) for injunction restraining plaintiffs from carrying out repairing
works in suit premises and claimed ad-interim relief. After hearing
advocates for the parties, presiding officer of Court no.8 rejected ad-
interim relief against defendants on 21.10.2020.
7. Again nn 22.10.2020 at about 9 am, plaintiff brought 5 to 7
labours and started repair work of suit premises. At that time,
defendant no.1 to 4 alongwith one old lady named Narmada Ankush
-- 3 of 10 --
..4..
Mhatre entered into suit premises and called 10-15 persons. They taken
bricks in their hand and threatened the plaintiff and workers to stop
repairing work in suit premises. They given threat of life to the plaintiff
if she will not leave suit premises immediately. Then a plaintiff called
police. Defendants also called police. Police brought all of them to R.C.F.
Police Station and without taking action, police allowed defendant
nos.1 to 4 to leave police station. Hence plaintiff shown all documents
of suit premises to the police and requested to register FIR against
defendants. Police advised the plaintiff to obtain order from the Civil
Court. Hence the plaintiff filed this suit against defendants for
permanent injunction and claimed temporary injunction by way of
present notice of motion.
8. In spite of service of summons of the suit and notice of motion
and in spite of sufficient opportunities, defendant no.1 remained absent
hence suit is proceeded ex-parte against defendant no.1.
9. Defendant no.2 to 4 appeared before the Court and opposed the
notice of motion by filing their affidavit in reply to the notice of motion.
Defendant no.2 to 4 submitted that defendants are co-owner of land
bearing C.T.S. No.335, 335/1 to 335/5 of Village- Anik. Said land was
allotted by the Government to their Predecessor in title i.e., Pandurang
Damaji Patil in lieu of structures existing prior to the year 1966 which
was effected during the set up of Bharat Petroleum Company at Village-
Anik. Pandurang Patil constructed chawl known as Ankush Pandurang
Chawl for his residence. He inducted various tenant in Rooms of said
chawl. Father-in-law of the plaintiff was also inducted as tenant on
monthly rental basis in one room of said chawl. Father-in-law of
plaintiff was paying rent to predecessor of defendants. But on repeated
-- 4 of 10 --
..5..
request to plaintiff by Narmada Ankush Mhatre, plaintiff failed to pay
monthly rent to defendants.
10. Defendant nos.2 to 4 admitted that father-in-law of the plaintiff
was in possession of suit premises prior to the year 1963 and the
plaintiff and her husband are in possession of suit premises. Contention
of defendants is that suit premises is not on plot no.342 but on land
bearing C.T.S. No.335/2 of Village-Anik which belongs to defendants.
Suit premises is about 100 to 110 sq. fts. but plaintiff is illegally
constructing the structure of about 357 sq.fts. by encroaching on open
space of land belonging to defendants. On 17.02.2020, plaintiff
obtained repair permission of suit premises by misleading M.C.G.M.
Authority. Hence office of M.C.G.M. issued notice dated 19.03.2020 to
stop construction of the plaintiff. Permission of construction over suit
premises is cancelled but plaintiff's illegal construction is going on. Plot
of land allotted to predecessor in title of defendants is joint property.
Hence Deepak Mhatre, husband of defendant no.1 has no authority to
file the suit no.1156/2020 without consent of other co-owner which is
pending before Court No.8 against MCGM and plaintiff & her husband.
Hence they prayed for dismissal of notice of motion.
11. After hearing advocate for both parties, it reveals that according
to plaintiff, suit premises is on plot no.342 of Village-Anik which
belongs to the State of Maharashtra. Plaintiff is repairing her house on
suit premises with permission of the MCGM. Defendants are neighbours
of the plaintiff and they are not concerned with the suit premises.
Whereas according to defendants, suit premises is on CTS No.335/2 of
Village-Anik which is a private land of defendants and not on plot
number or survey no.342. Further plaintiff started construction on 357
-- 5 of 10 --
..6..
sq.fts. when the area of suit premises was about 100 to 110 sq.fts. Thus
plaintiff started construction by encroaching on open space of land of
defendants.
12. From the perusal of record, it reveals that plaintiff is in
possession of suit premises. Father-in-law of plaintiff was in possession
of suit premises since prior to the year 1963. Plaintiff filed on record
documents showing her possession and possession of her father-in-law
in suit premises. Defendants also admitted that father-in-law of the
plaintiff was in possession of suit premises prior to the year 1963 and
thereafter plaintiff and her husband are in possession of suit premises.
13. Admittedly the suit premises being very old and in dilapidated
condition, plaintiff demolished the same and obtained permission of
repair in suit premises on 17.02.2020 from the office of MCGM. Deepka
Mhatre, husband of defendant no.1 taken objection to the construction
of plaintiff over the suit premises. Hence on 19.03.2020, office of
MCGM issued notice under section 354 A of the MMC Act to stop
construction on suit premises. Then office of MCGM issue letter dated
25.07.2020 to Additional Collector (Encroachment/Removal), Chembur
as the plaintiff produced document of suit premises and C.T.S. No.342
belongs to the Government. On 02.09.2020, Office of MCGM informed
husband of defendant no.1 that notice under section 354 A of the MMC
Act is withdrawn. But it is not brought on record that permission of
repair work on suit premises granted to the plaintiff vide letter dated
17.02.2020 is cancelled or revoked.
14. Whether father-in-law of the plaintiff was inducted as tenant in
suit premises by predecessor-in-title of defendants cannot be decided at
-- 6 of 10 --
..7..
this stage. Similarly whether suit premises is situated on plot
number/CTS number 342 of Village-Anik which belongs to the
Government or on CTS No.335/2 of Village-Anik which according to
defendants belongs to their predecessor in title and joint property of
defendants cannot be decided at this stage. However possession of the
plaintiff on the suit premises is not in dispute. So also, Deepak Mhatre,
husband of defendant no.1 filed Suit no.1156/2020 for injunction
against the MCGM and the plaintiff & her husband wherein he claimed
ad-interim relief by way of draft notice of motion to stop ongoing
construction of plaintiff on suit premises and after hearing both parties,
ad-interim relief being devoid of merits rejected on 21.10.2020 by
presiding officer of Court No.8.
15. It further reveals that father-in-law of the plaintiff and the
plaintiff had filed S.C. Suit No.197/2000 against Shivaji Gurav before
the Bombay City Civil Court for mandatory order directing the said
defendant to remove the wooden cupboard illegally and unlawfully kept
on left side of suit door, situated on western side of suit premises viz.
Room no.M/3125/C-196/Census no.157/1, Shankar Temple, Anik
Village, Mahul Road, Chembur, Mumbai -4000 74. Said defendant was
neighbour of the plaintiff. Address of the plaintiff is same as in title
clause of S.C. Suit No.197/2000.
16. It further reveals that plaintiff lodged report against Deepak
Janardhan Mhatre and defendants and others about obstruction to her
construction on suit premises. On 27.06.2020 and 11.10.2020, police
issued receipt of non cognizable offence on the report of the plaintiff.
Name of Deepak Mhatre, husband of defendant no.1 Sunanda Deepak
Mhatre alongwith Narmada Ankush Mhatre are specifically mentioned
-- 7 of 10 --
..8..
in NC report dated 11.10.2020. Address of Deepak Mhatre is same as of
other defendants. Admittedly Deepak Mhatre is husband of defendant
no.1 and he is residing with defendants. Hence it is not digestible that
defendants are not aware about the Suit no.1156/2020 instituted by
Deepak Mhatre against the MCGM and plaintiff & her husband for
injunction restraining plaintiff from carrying construction on suit
premises. Deepak Mhatre is one of the co-owner of joint property as per
defendants. Hence it cannot be said that Deepak Mhatre, husband of
defendant no.1 has no authority to file Suit no.1156/2020 without
consent of other co-owners against the MCGM, plaintiff and her
husband.
17. After rejection of interim relief in Suit no.1156/2020 on
21.10.2020, defendants alongwith others obstructed construction of
plaintiff in suit premises and gave her threat of life on 22.10.2020.
18. Admittedly construction of plaintiff over suit premises is going
on with permission of concerned authorities which is still in existence.
Suit premises being very old, plaintiff demolished the same and started
construction. Long standing possession of father-in-law of the plaintiff
and now the possession of the plaintiff over the suit premises is not in
dispute. Thus prima facie case for grant of temporary injunction is
made out in favour of the plaintiff. Balance of convenience lies in favour
of the plaintiff as she already demolished the very old construction on
suit premises which was in dilapidated condition and started
construction in or about January 2020 but due to obstruction of
defendants, she could not complete the construction. Hence irreparable
loss would also be caused to the plaintiff rather than defendants if
defendants are not restrained by way of temporary injunction from
-- 8 of 10 --
..9..
disturbing possession of the plaintiff.
19. Plaintiff is in settled possession of the suit premises. It is well
settled that person in settled possession of immovable property may be
as tenant cannot be dispossessed without following due process of law.
In view of above facts, circumstances and documentary evidence on the
record, present draft notice of motion is liable to be allowed. Hence
following order.
ORDER
1. Draft notice of motion no.............../2020 in Stamp No.
5221/2020 is allowed.
2. Defendants or anybody on their behalf are restrained from
disturbing possession and repair work of the plaintiff over suit premises
till decision of the suit without following due process of law.
3. Costs in cause.
4. Draft notice of motion no. …........../2020 is disposed of
accordingly.
5. Draft notice of motion no. …........../2020 be registered for
statistical purpose.
(Sunil T. Soor)
Judge
Date : 29.10.2020 Gr. Mumbai.
Typed on : 29.10.2020
HHJ signed on : 29.10.2020
-- 9 of 10 --
..10..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.10.2020, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
29.10.2020
JUDGMENT/ORDER signed by P.O.
on
29.10.2020
JUDGMENT/ORDER uploaded on 29.10.2020
-- 10 of 10 --