Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.1636/2020 ..1.. InS.C.Suit No.5462/2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1636 OF 2020
IN
S.C. SUIT NO. 5462 OF 2020
CNR NO : MHCC010048552020
1. Mr. Rajan Hande and Ors., ...Plaintiffs
Versus
1. Mr. Naresh Panchal & Ors., ...Defendants
Appearance :
Mr. Aaditya Khare, Advocate for the Plaintiff.
Mr. P. B. Joshi I/b Mr. Bipin Joshi, Advocate for defendant No.4.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 5TH APRIL, 2021.
ORAL ORDER
By this notice of motion, the plaintiffs are seeking
temporary injunction to restrain defendants No. 1 to 4 from
creating nuisance or disturbance, either by way of abusing or
stopping the repair work or any other way, in and around the
area of the suit property. The temporary mandatory injunction is
also sought against the officers of the Vikroli Police Station to
render all assistance in enforcing and implementing the orders of
this Court.
2. In brief, the plaintiffs' case is that, plaintiff No. 1 is in
occupation and possession of Survey No. 42 (part), Hissa No. NIL
and Survey No. 289 (part), admeasuring 272.40 Sq. Mtrs. with
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the structures thereon at Village Hariyali, Taluka Kurla, Vikhroli
(East), Mumbai. Plaintiffs No. 2 and 3 have entered into two
agreements to sell with plaintiff No. 1 in respect of piece and
parcel of land together with structures out of the aforesaid land
and structures held by plaintiff No. 1. Defendants No. 1 to 4 have
no connection with the land and structures agreed to be
purchased by plaintiffs No. 2 and 3. Plaintiffs No. 2 and 3 have
commenced the work of repairs of the respective structures. They
employed some workers for said work. However, the defendants
disturbed executing of repair works. Defendant No. 4 has
threatened plaintiffs No. 2 and 3. Defendant No. 3 has abused
plaintiff No. 3. They had illegally trespassed on the properties of
the plaintiffs and tried to stop repair works. They have
threatened the plaintiffs of severe consequences if the work
progressed. Plaintiff No. 3 was compelled to file a police
complaint.
3. Defendants No. 1 to 3 did not file reply.
4. Defendant No. 4 has opposed the notice of motion on the
ground that, the plaintiffs have filed the suit to abuse the process
of law with mala fide intention. They have not approached this
Court with clean hands and are guilty of suppression as well as
misrepresentation of facts. The suit is bad for nonjoinder of the
owner of the property Smt. Jamnaben Patel. The suit is not
maintainable in view of provisions of Clause (f) of Section 41 of
the Specific Relief Act, 1963. One Premji Patel had become the
owner of the plot of land bearing Survey No. 42 (part), Survey
No. 36, bearing CTS Nos. 286, 289, 290, 250 and 251 by virtue of
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registered Deeds of Confirmation. Vide a registered Deed of
Partnership, Shamji Patel, Premji Patel, Ganesh Patel and
Jamnaben Patel constituted a firm “Om Developers”. Later
Premji Patel and Ganesh Patel retired. Thus, Shamji Patel and
Jamnaben Patel are the only partners of “Om Developers”.
Defendant No. 4 is the son of Jamnaben Patel. The plaintiffs are
not in possession or occupation of the properties described in the
plaint. The documents filed by the plaintiff do not make out a
case for them. The documents relied on them more particularly
the agreements of sale are not admissible in evidence. The
photographs produced by the plaintiffs reveal an attempt to
encroach upon the open space with bamboos and cement sheets.
There is no structure as alleged by the plaintiffs and so the
question of repairs does not arise. The injunction as sought
cannot be granted to restrain the real owner. The alleged
incident of obstruction and abuse has not taken place.
5. Perused. Heard.
6. Following points arise for determination against which
findings are recorded for the reasons to follow.
Sr.
No. POINTS FINDINGS
1. Whether plaintiffs have made out a
primafacie case in their favour? In the Negative
2. Whether the balance of convenience
lies in plaintiffs favour? In the Negative
3. Whether plaintiffs will suffer
irreparable loss in case of refusal of
injunction?
In the Negative
4. What order? As per final Order.
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REASONS
AS TO POINTS NO. 1 TO 4 :
7. The notice of motion can be disposed of on the basis of the
answer to the question, whether the structures sought to be
repaired by the plaintiffs were in existence on the date of the suit.
8. The plaintiffs have filed on record various documents. The
documents at Exh.D and more particularly the NA order and the
plan attached to it reveal that, 12 structures numbered from
structure No. 1 to 12 were existing on Survey No. 42 (part) CTS
No. 289 of Village Hariyali. Said structures were constructed by
Mr. Rohidas Sonawane and Rajan Hande. Rajan Hande is
plaintiff No. 1. Relying on these documents, plaintiffs claim that
plaintiff No. 1 has handed over possession of the structures to
plaintiffs No. 2 and 3 by virtue of two agreements to sell dated
22.12.2019.
9. The copies of agreements to sell produced on record
mention the delivery of possession of structure alongwith land
measuring 220 Sq.Ft as described in the schedule. However, in
recital B the area of 180 Sq. Ft. is mentioned. This discrepancy is
not explained. The credibility of these two agreements to sell is
doubtful, as it has no mention of the final consideration and said
portion is kept blank. The payment is also allegedly made in
cash. Such payment is more than Rs.20,000/ and cannot be
made in cash by virtue of the provisions of Income Tax Act. Thus
said payment is also doubtful.
10. The credibility of these agreements to sell also has to
be decided in the light of contents of a possession letter issued by
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plaintiff No. 1 in favour of plaintiffs No. 2 and 3 on 20.09.2020
i.e. subsequent to execution of two agreements to sell. The
possession letter clearly mentions atleast on four occasions that
plaintiff No. 1 had agreed to sell only a portion of land. There is
no mention of structure therein.
11. The plaintiffs have produced photographs at Exh.I
collectively. Bare perusal of the photographs reveal that, there
was no existing structure, but the material was being collected to
create the structures. No expert is required to come to this
conclusion.
12. The documents produced by the plaintiffs with plaint
categorically reveal that, as on date of the suit or even prior
thereto the structures as alleged by the plaintiffs were not
existing. If this is so, the question of alleged repairs by the
plaintiffs does not arise.
13. The plaintiffs have filed additional affidavit dated
27.01.2021. The photographs appended to said affidavit reveal
two completed structures. If these photographs are compared
with the earlier photographs filed along with the plaint easily an
inference can be drawn than these structures are completed
during pendency of the suit. In such circumstances, it is apparent
that the plaintiffs have filed the suit, have required this Court to
pass an order of statusquo on 07.11.2020 till next date and have
later completed the construction of two structures. Said order
was in existence till 09.12.2020. It is not clear whether they have
completed the structures during the force of the order of status
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quo or thereafter.
14. The discussion above thus reveals that, the plaintiffs have
come with absolute false and untenable story that, the alleged
structures were existing on the date of the suit. Proceedings
further indicate that, said structures were completed or
constructed during the pendency of the suit. This reflects on the
conducts of the plaintiffs. It is clear that, the plaintiffs have not
come with clean hands before the Court and have suppressed
material facts. They have attempted to play fraud on the Court.
They are not at all entitled to the equitable remedy as sought on
this count alone.
15. The perusal of plaint dated 02.11.2020 further reveals that,
the allegations leveled in paragraph 7 of the plaint are not in
consonance with the contents of complaint Exh.K. The copy of
complaint further alleges that defendant No. 4 appeared with
police to stop the work alleging that the room was on his land.
16. Considering the manner in which the allegations are
leveled against defendant No. 4, it cannot be a clear act of
nuisance, if he has approached the police authorities to ventilate
his grievances. It appears that, he has taken recourse to the legal
process. In such circumstances, in view of provisions of Clause
(f) of Section 41 of Specific Relief Act injunction cannot be
granted against defendant No. 4.
17. Advocate for plaintiffs relied on Mowbrays Flats Owner's
Association Rep. By its President Ashok Metha V/s. C.A.M.
Riazuddin @ Riazuddin Mohammed Rep. By Power of
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Attorney Agent Anil Kumar Bagga, 20002L.W.840 , wherein
the Hon'ble Madras High Court has observed in para 8 that,
Nuisance is the unlawful interference with a person's use or
enjoyment of land, or of some right over, or in connection with it.
18. In this case, the existence of structures sought to be
allegedly repaired itself is not proved even primafacie . Therefore,
the alleged act of nuisance in connection with the repairs of non
existing structures can never be established. Thus, in this case on
the facts no case of nuisance is made out by the plaintiffs.
19. Considering the discussion above it is clear that, the
plaintiffs have abused the process of law for which they should be
held accountable. Hence, the notice of motion needs to be
dismissed with exemplary costs. Consequently, I answer points
No. 1 to 3 in the negative and in response to point No. 4 pass
following order:
ORDER
1. Notice of Motion No. 1636/2020 is dismissed
with costs of Rs.5000/ payable to defendant
No. 4 within four weeks from the date of
uploading of this Order.
2. Notice of Motion No. 1636/2020 is disposed
of accordingly.
(AJIT N. MARE)
Judge,
Date : 05.04.2021 City Civil Court, Gr. Mumbai.
Dictated On : 05.04.2021
Transcribed on : 07.04.2021
HHJ Signed on : 08.04.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
08.04.2021 4.01 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 05.04.2021
Order signed by P. O. on 08.04.2021
Order uploaded on 08.04.2021
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