Mr. Dharmendra Bhagwant Mhatre +2 moreVsPandharinath Moreshwar Pathare +1 more

Date: 30-04-2019
Business: Adv. Mr. Pratap Singh for plaintiff is present.
Adv. Mr. Sharad  Bhosale for defendant no.1 is present and filed reply on N/M 1615/19.
Copies received to other side.
Adv. Mhatre h/f Adv. Vyvahare for Defendant no.2 /MCGM present.
Matter is adj. to 11/06/2019 for N/M hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 11-06-2019

Date: 11-06-2019
Business: None for plaintiff.
Adv. S. K. Bhosale for def. no. 1.
Adv. Khandagle for MCGM/Def. 2 present.
Adjd to 03.07.2019 for NM hearing.
K.B.
L.O. at 4.25 p.m. Adv. Pal for plaintiff present.
On oral request of ld adv for plff, adjournment granted as a last chance.
Adjd for 03.07.2019 NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 03-07-2019

Date: 03-07-2019
Business: Adv. Pratap Singh for Plaintiff present.
Adv. Khandagle for MCGM/Deft. no. 2 present.
Adv. S. K. Bhosale for defendant no. 1 present
Adjd. to 15.07.2019 for NM hearing
Next Purpose: NM FOR HEARING
Next Hearing Date: 15-07-2019

Date: 15-07-2019
Business: The P.O. is on leave.
Hence board is discharged.
Adjd to 31.07.2019 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 31-07-2019

Date: 31-07-2019
Business: Adv. Pal for plaintiff present.
Adv. S. K. Bhosale for def. no. 1 present.
Defendant no. 1 present.
Adv. Khandagle for MCGM/Deft. 2 present.
On oral request of ld adv for def., adjournment granted.
Adjd to 16.08.2019 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 16-08-2019

Date: 16-08-2019
Business: Adv. Mr. Pal for Plaintiff present.
Adv. Mr. S.K. Bhosale for defendant no.1 present.
Adv. Khandagle for MCGM/Deft.2 present.
Ld adv. for plff to argue on the point why name of deft. no.2/MCGM be not deleted from the plaint under order-I, rule- 10 of C.P.C.
Adjd. to 09.10.2019 for hearing on the point framed as above today.
Next Purpose: HEARING
Next Hearing Date: 09-10-2019

Date: 09-10-2019
Business: Adv. Pal for plaintiff present.
Adv. Mr. S.C. Khandagale for Deft no. 2/MCGM present.
Adv. S. K. Bhosle for deft. no. 1 present.
Adjd to 11-12-2019  for hearing on the point framed on 16-08-2019.
Next Purpose: HEARING
Next Hearing Date: 11-12-2019

Date: 11-12-2019
Business: None for plaintiff.
Adv. Mr. S.C. Khandagale for Deft no. 2/MCGM present.
None for defendant no. 1
KB 2.45
Adv. Pratap Singh  for plaintiff present.
Adv. S. K. Bhosale for Defendant no. 1 present.
On oral request of advocate for Plaintiff, adjournment granted.
Adjd to 22-01-2020  for Hearing on the point framed on 16-08-2019
Next Purpose: HEARING
Next Hearing Date: 22-01-2020

Date: 22-01-2020
Business: None for plaintiff .
Adv. Khandagle for MCGM/Deft. present.
KB
Adv. Pal for plaintiff present.
adv.Bhosale for defendant No.1 present.
Adv. Khandagle for MCGM/Deft.2 present.
On oral request of advocate for plaintiff, adjournment granted as last chance given on the point framed 16.08.2019.
Matter adjd to 27.01.2020  for  argument.
Next Purpose: ARGUMENTS
Next Hearing Date: 27-01-2020

Date: 27-01-2020
Business: None for plaintiff.
None for defendant No.1
Adv. Khandagle for MCGM/Deft.No.2 present.
KB L.O. at 1.45pm
Matter adjd to 18.02.2020 for hearing on the point framed on 16.08.2019.
Next Purpose: HEARING
Next Hearing Date: 18-02-2020

Date: 18-02-2020
Business: plaintiff present.
Avdv.S.K.Bhosle for defendant NO.1 present.
None for defendant No.2 M Ward .
 Matter adjd to  28.04.2020  for point framed on 13.08.2019
Next Purpose: HEARING
Next Hearing Date: 28-04-2020

Date: 28-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: HEARING
Next Hearing Date: 19-05-2020

Date: 19-05-2020
Business: In view of extension of Lockdown period pursuant to the declaration of Novel Corona Virus (Covid-19) as global pandemic by WHO and as per Office Order 78 of 2020, matter adjourned
Next Purpose: HEARING
Next Hearing Date: 06-06-2020

Date: 06-06-2020
Reason For Adjournment: National Lock Down
Next Purpose: HEARING
Next Hearing Date: 24-06-2020

Date: 24-06-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: HEARING
Next Hearing Date: 14-09-2020

Date: 14-09-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: HEARING
Next Hearing Date: 23-11-2020

Date: 23-11-2020
Business: Adjourned Due to Covid-19.
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: HEARING
Next Hearing Date: 22-01-2021

Date: 22-01-2021
Business: Court is on leave.
Next Purpose: HEARING
Next Hearing Date: 15-02-2021

Date: 15-02-2021
Business: Adv. Pal h/f Adv. Pratap Singh for plaintiff present.
Adv. Bhosale for deft no.1 present.
Adv. Khandagle for deft no.2/MCGM present.
Kept back.
Later On. At 03.30 pm.
Adv. Pratap Singh for plaintiff present.
Rest of the same appearances.
Heard both sides on the point framed on 16.08.2019 regarding deletion of deft no.2/MCGM from the Suit.
Matter adjd to 26/02/2021 for Order on the point framed on 16.08.2019.
Next Purpose: ORDER
Next Hearing Date: 26-02-2021

Date: 26-02-2021
Business: Adv. Pratap Singh for plaintiff present.
Plaintiff is also present.
None for deft no.1.
Adv. Khandagle for deft no.2/MCGM present.
Matter adjd to 02/03/2021 for Order on the point framed on 16.08.2019.
Next Purpose: ORDER
Next Hearing Date: 02-03-2021

Date: 02-03-2021
Business: Adv. Pratap Singh for plaintiff present.
Adv. S. K. Bhosle for deft no.1 present and filed Citation.
Adv. Ms. Hazare h/f Adv. Khandagle for deft no.2/MCGM present.
Matter adjd to 16/03/2021 for Order on point framed on 16.08.2019.
Next Purpose: ORDER
Next Hearing Date: 16-03-2021

Date: 16-03-2021
Business: Adv. Pal h/f Adv. Pratap Singh for plaintiff present.
Adv. S. K. Bhosle for deft no.1 present.
Adv. Ms. Hazare h/f Adv. Khandagale for deft/MCGM present.
Order on point framed on 16.08.2019-
ORDER
1.Heard, learned Adv. Mr. Pratap Singh for the plaintiff. He submitted that this is Suit for declaration and injunction. Complaint made to the BMC for unauthorized construction in the property owned by the plaintiff and no action by the defendant Corporation. Prayer C of the plaint shows that this Court being BMC Court has jurisdiction to try and dispose the case according to law. 2.Heard learned Adv. Mr. Khandagale for the defendant/Corporation. He has pithily submitted that this Court cannot direct to demolish Suit premises, Suit is between the private parties. Prayer A of of the plaint transpires that, this Court is ousted from the jurisdiction. 3.Heard both the sides.4. Perused plaint alongwith all the documents. Plaintiff is claiming declaration as per plaint prayer A-The purported General Power of Attorney, Indenture of conveyance and Will created/prepared by the Defendant No.1 allegedly claiming right over the Suit Premises, are required to be declared illegal, bad in law, void and not binding upon the Plaintiffs and the documents such as Family Arrangement Agreement executed between the family members in March, 1979 and subsequent Affidavit Cum Declaration executed in the month of July, 1979, are valid and subsisting in respect of Suit premises viz. Bearing No. D-132 situated on the plot of land bearing C.T.S. No. 1223 and 1223/1 of village Chembur, Chembur Gaothan, Chembur, Mumbai-400 071 consisting of an area of 26 sq.meters or thereabouts.
5.Plaintiff also prayed for injunction against illegal and unauthorized construction in the Suit premises. Plaintiff also prayed in para C to direct defendant/Corporation to take necessary action against illegal and unauthorized construction against defendant No.1.6.Heard arguments of both the advocates for the plaintiff and defendants on the point framed by the Court Why defendant No.2/MCGM be not deleted under Order 1 Rule 10 of C. P. C. Further carefully reading all the plaint as a whole, it is apparent that, the plaintiffs have grievance against the acts of defendant No.1, the allegedly prepared forge documents and claiming the possession in the Suit premises. As per plaintiff the General Power of attorney and Will created by the defendant No.1 is void in ab initio. 7.The defendant Nos. 1 and 2 are legal authority and made as a party. On account of apprehension that the officer of the defendant No.2 has not initiated any action for the alleged unauthorized construction. The pleadings of the plaintiffs no where transpires that, the said legal authority i.e. the Mumbai Municipal Corporation is taking any action adverse to plaintiffs right and deny their rights to the Suit plot. 8.Order 1 Rule 3 of the Code of Civil Procedure 1908 allows all persons to be joined as defendants in one suit when (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exists against such persons, whether jointly, severally or in the alternative and (b) if separate suits were brought against such persons, any common question of law or fact would arise. The use of word and in this provision connotes that the plaintiff has to make out case fulfilling both the conditions to make any person as defendant in the suit. The pleadings reflects that plaintiff is challenging the alleged General Power of Attorney dt. 01.01.1993 on the name of deceased Kesharbhai Mhatre and purportedly executed will dt. 09.10.1992. This should not be a subject matter of this Court which is assigned only cases against the Mumbai Municipal Corporation. The Prayer (C) is for mandatory injunction against the Deft/Corporation for which this Court is ousted from the Jurisdiction. The prayer of mandatory injunction made against defendant no.1, in the facts and circumstances of this case, cannot be granted by Civil Court. Such relief can be granted by Honble High Court in its writ jurisdiction under Article 227 of the Constitution. As such I am of the clear view that defendant no.1 is improperly joined as defendant.9.In the case of Abdul Rehman Siddiqui and Ors vs. Ahmed Mia Gulam Mohuddin Ahmedji and Ors. (1996(4) Bom. C. R. 696) Hon\''ble Bombay High Court has laid down that the local authority has ample discretion in a particular manner and if the discretion is not exercised in accordance with law then the Civil Court can call upon such authority to consider the matter afresh. Such discretion of the authority cannot be substituted by the Court nor can Court direct it to exercise the discretion in a particular manner. In view of this judgment the prayer of mandatory injunction against defendant no. 1, cannot be granted by the Civil Court in the facts of this case.10.For the reasons given above, it is concluded that the defendant no.2s name is improperly joined as defendant. Therefore, in exercise of power under Order 1 Rule 10 (2) of C.P.C., it is ordered that the name of defendant no.2/MCGM be struck out from the plaint.11.As a result thereof, the Suit remains between private parties. Therefore, Registrar, City Civil Court to assign the matter to the Court dealing with Civil Suits between private parties. Matter adjd to 22/04/2021 for Compliance.
Next Purpose: COMPLIANCE
Next Hearing Date: 22-04-2021

Date: 22-04-2021
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: COMPLIANCE
Next Hearing Date: 24-08-2021

Date: 24-08-2021
Business: Plff is present.
Deft Pandharinath Pathare is present.
Adv. Pal for plff is present.
On oral request of deft matter adjourned for NM hearing. Matter adjd for NM hearing on 18.10.2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 18-10-2021

Date: 18-10-2021
Business: As per Order No.213 of 2021 dated 12.10.2021 hereby declared holiday on 18.10.2021.  Matter is adjd to 27.11.2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 22-11-2021

Date: 22-11-2021
Business: By precipe
Matter pertains to C. R. No. 01.
Plff no. 1 to 3 present.
Adv Pratap Singh for plffs present.
Deft present.
Adv Sharad Bhosale for deft present.
Both parties filed Consent Terms. t.o.r.
Consent Terms are verified through the parties in presence of their Adv.
The admitted contents of Consent Terms to be true and correct.  Both parties submitted to disposed of the suit in terms of Consent Terms.
Hence Suit is disposed of in terms of Consent Terms (Exh. 03).
Consent decree be drawn in accordance with Consent Terms (Exh. 03)
Court fees be refunded as per rules.
Accordingly NM 1615/2019 stands disposed of.
Proceeding is closed.
Nature Of Disposal: CONSENT DECREE
Disposal Date: 22-11-2021

NOTICE OF MOTION/101615/2019

Registration Number: 100979/2019
Transfer Date: 31-05-2021
From Court: 8 - COURT 08 ADDL SESSIONS JUDGE
To Court: 1 - COURT 01 ADDL SESSIONS JUDGE

Filing Number: 105516/2018
Filing Date: 18-04-2018
First Hearing Date: 30th April 2019
Decision Date: 22nd November 2021
Court Number And Judge: 1-COURT 01 ADDL SESSIONS JUDGE