Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1615/2020 .. 1 .. L.C. Suit No.1315/2017
CNR NO.MHCC01-004882-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1615 OF 2020
IN
L.C. SUIT NO. 1315 OF 2017
Mr. Mohd. Nadeem Hanif Qureshi )
Flat No.403, 4th floor, Mercury Apartment, )
Maulana Azad Road, (Duncan Road) )
Mumbai – 400 008 )...Plaintiff
Vs.
Mumbai Municipal Corporation of )
Greater Bombay through the Municipal )
Commissioner having office at BMC Head )
Quarters, Opp. C.S.T. Mumbai )...Defendant
APPEARANCE:-
Ld. Adv. Mr. J. S. Yadav for the plaintiff.
Ld. Adv. Mrs. Vyavahare for the defendant/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 4th JANUARY, 2021.
O R D E R
This Notice of Motion is moved by defendant MCGM for
expediting the Notice of Motion No.2117/2017 and to set aside the ad-
interim relief granted by this court on 03.07.2017.
Description of suit premises-
Flat No.403, admeasuring 300 sq.feet carpet area, situated
on 4th floor in the building known as Mercury Apartment, situated on
C.S. No.1038 of Byculla Division, 183-191, Maulana Azad Road
(Duncan Road), Mumbai – 400 008.
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Background of the case -
2. Plaintiffs had filed the L.C. Suit No.1315/2017 praying to
restrain defendant from evicting, dispossessing plaintiffs from suit
premises or demolishing suit premises without following due process of
law. Plaintiffs had also filed Notice of Motion No.2117/2017 seeking
interim and ad-interim relief. My predecessor-in-office had granted ad-
interim relief on 03.07.2017 as follows-
“1. The interim relief is granted to the extent that the
Defendant shall not demolish further the structure on suit
site till filing affidavit-in-reply.
2. The Plaintiff shall not carry out any construction
activity at the demolish site till the above period.
3. Both the parties shall maintain status-quo in respect of
the suit premises till filing affidavit-in-reply by M.M.C.
Act.
4. The hearing on Notice of Motion is expedited ”
3. The aforesaid ad-interim order continued till date.
Defendant contend that they have followed due process of law. Notice
u/sec.53(1) of MRTP Act, is issued to owner of suit premises. Hearing
of notice of motion filed by plaintiff is prolonged as ad-interim relief is
granted. The hearing of Notice of Motion No.2117/2017 needs be
expedited by setting aside ad-interim order dated 03.07.2017.
Discussion -
4. As regards first prayer in notice of motion, already in order
dated 03.07.2017, hearing on notice of motion was expedited. Learned
advocate for plaintiff also submitted in his oral arguments that he has
no objection for expediting hearing of Notice of Motion No.2117/2017.
Therefore, there is no hurdle to allow this prayer of defendant.
5. The next prayer of defendant MCGM is to set aside the ad-
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NM No.1615/2020 .. 3 .. L.C. Suit No.1315/2017
interim relief granted by this court on 03.07.2017. Therefore, this
prayer of notice of motion is under Order 39 Rule 4 of Code of Civil
Procedure as is rightly argued by learned advocate for plaintiff. Under
Order 39 Rule 4 of Code of Civil Procedure, if the ad-interim order is
passed without notice to opposite party then it has to be satisfied that
plaintiff has knowingly made false or misleading statement in relation
to material particulars and obtained ad-interim order. Further, as per
this provision if ad-interim order is passed after giving notice to
opposite party, then it has to be satisfied that there is change in
circumstances which necessitate setting aside order or that undue
hardship is caused due to ad-interim order.
6. In present case, order dated 03.07.2017 was passed after
notice to MCGM. Therefore, in order to succeed for prayer of setting
aside order dated 03.07.2017, defendant has to show that undue
hardship has caused to it due to order dated 03.07.2017 or that there is
change in circumstances which necessitate the setting aside of order.
7. Defendant has neither pleaded nor any evidence is
tendered on record to show that the ad-interim order dated 03.07.2017
has caused undue hardship to them nor showed that there is change in
circumstances which necessitate the setting aside of order. In absence
of such pleadings in notice of motion or any such evidence on record,
how such prayer of defendant can be accepted.
8. It is further important to note that though defendant says
that they have followed due process of law by issuing notice
u/sec.53(1) of MRTP Act to owners, it nowhere appears that they have
issued notice to occupiers of suit premises in compliance of order
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passed by this court in draft Notice of Motion in L.C. Suit
No.2896/2015 dated 12.12.2015. This L.C. Suit No.2896/2015 was
filed by one Mr. Akib Arif Patel to whom defendant had issued notice
u/sec.53(1) of MRTP Act. In this suit, Mr. Akib denied that he is owner
of property bearing No.1038 of Byculla Division, known as Mercury
Apartment in which suit premises in present case is situate. This court
had therefore given directions to defendant to verify the proper owner/
occupier of suit structure & then issue notices to them and take proper
steps against them. There is nothing on record that defendant has
issued notice to present plaintiff who is occupier of suit premises.
9. In light of aforesaid discussion, it cannot be concluded
that defendant has made out case to set aside order dated 03.07.2017.
10. In light of aforesaid discussion, the prayer of defendant to
set aside order dated 03.07.2017 deserves to be dismissed. The prayer
of expediting Notice of Motion No.2117/2017 deserves to be allowed.
In result, I proceed with following order -
ORDER
1. Notice of Motion No.1615/2020 is partly allowed.
2. Prayer of expediting Notice of Motion No.2117/2017 is hereby
allowed.
3. Prayer of setting aside ad-interim order dated 03.07.2017 is
hereby dismissed.
4. Notice of Motion No.1615/2020 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 04.01.2021 City Civil Court, Gr. Bombay
Directly Dictated on Com :04.01.2021.
Checked on :04.01.2021.
Signed on :04.01.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.01.2021, 10.53 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
04.01.2021
JUDGMENT/ORDER signed by P.O.
on
04.01.2021
JUDGMENT/ORDER uploaded on 05.01.2021
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