Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1662 OF 2018
IN
SUIT NO.1609 OF 2013
1. Amina E.Begmohammed (Deleted/deceased)
2. Riyad Rashid Oomerbhoy,
2. Roohi Oomerbhoy Chetan Jaikishan,
3. Ismail Nazir Shakoor, ... Plaintiffs
Versus
1.Salim Ebrahim Begmohammed(Deleted/deceased)
1a. Mrs.Dureshwar Salim Begmohammed,
2. Abubakar SalimBegmohammed,
3. Mrs.Tanveer Nazir Munshi,
4. Miss.Salma nazir Munshi ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 28th JUNE, 2019
Advocate Mr. Kalpesh Joshi for Plaintiffs.
Advocate Mr.P.D.Gandhi for Defendant no.1(a) and 2.
Advocate Ms. Nidhi for Defendant no.3 and 4.
O R D E R
1. This notice of motion is taken out by plaintiffs for
temporary injunction restraining defendant no.2, his servants and other
persons claiming through him from obstructing, interfering with
plaintiffs' peaceful and uninterrupted use and access to the terrace of
building i.e. Noor Mansion and carry out work of cleaning water tanks,
carry out water proofing work and attend satellite TV dishes installed
on the terrace. Plaintiffs have also prayed for temporary mandatory
injunction directing defendant no.2, his servants, agents etc. for giving
access to the plaintiffs or their representative to said terrace for carrying
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out work of cleaning water tanks, work of water proofing etc. along
with prayer for appointing independent Contractor, Architector,
Structural Engineer from the panel of this Court to visit common open
to sky terrace including the area of terrace covered by defendant 1(a)
and defendant no.2 on 4th Floor i.e. 3rd floor ceiling area and side walls
of suit building. Such Architect/ Structural Engineer should be directed
to submit his report with civil work, repair, RCC strengthening work,
water proofing required to be carried out at the suit premises.
Plaintiffs have prayed that such a contractor/ structural engineer to
complete civil work referred above within time schedule framed by the
Court. Plaintiffs have also prayed for temporary mandatory injunction
directing defendant no.1(a) and defendant no.2 to deposit 1/3rd
share of the costs and expenses to be incurred as per the quotation of
contractor/structural engineer. They have prayed for temporarily
permitting the plaintiffs to incur the costs of such civil work, as per the
report of Contractor/Water Proofing Experts/Structural Engineer and
they should be temporarily permitted to put temporary monsoon
tarpaulin sheet shed at suit premises. Plaintiffs have also prayed for
temporary directions to police authorities of Gaondevi Police Station for
temporary assistance in respect of above referred civil work at the suit
premises. They have prayed for temporary injunction restraining
defendant no.2, his servants, agents etc. from blocking driveway of suit
building by parking his Car bearing No.MH01CT3631 or such other
vehicles near the main entrance of the said building. Affidavit in detail
is filed by plaintiff no.2 Mr.Riyad Rashid Oomerbhoy in support of the
notice of motion. Defendant no.2 has also filed his affidavit of reply to
resist the notice of motion.
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2. Considering the arguments on behalf of the plaintiffs and
defendant no.2, I am not referring in detail the contentions of those
affidavits, however it is necessary to point out here that plaintiffs' notice
of motion No.2572/2018 was dismissed by my learned predecessor
observing that plaintiffs are at liberty to amend notice of motion
no.1662/2018 for appropriate prayers in said notice of motion for
seeking reliefs based on the report given by the Contractor. Thereafter,
notice of motion no.1662/2018 is amended and above referred so many
prayers are impleaded in notice of motion. On 21/06/2019 plaintiffs'
advocate Mr.Joshi and advocate Mr.P.D.Gandhi for defendant nos.1 and
2 pointed out that prayer clause(b1) of the notice of motion in which
prayer is made for appointment of independent Contractor/Architect/
structural engineer from the panel of this Court to visit common open to
sky terrace including the area of terrace covered by defendant nos.1(a)
and 2 on 4th Floor, 3rd floor ceiling area and side walls of the suit
building. Both the learned lawyers have further pointed out that in said
prayer clause b1 the prayer is made for directions to such Contractor/
Architect/Structural Engineer to submit his report in respect of civil
work/repair, RCC strengthening work and water proofing work
required to be carried out at the suit premises at the earliest. Both the
learned lawyers submitted that dispute between plaintiffs and
defendant nos.1(a) and 2 will come to an end if the expert as referred
in prayer clause (b1) of notice of motion will be appointed but only for
inspecting suit building for suggesting remedies for water proofing of 3rd
floor ceiling and terrace of suit premises. From the above submissions
made by both the learned lawyers it becomes clear that parties to the
suit are intending that contractor/structural engineer from the panel of
this Court should submit his report as prayed in prayer clause (b1) of
notice of motion. On 21/06/2019 it was argued by advocate Mr.Joshi
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on behalf of plaintiffs that further arguments in respect of other prayers
from notice of motion No.1662/2018 will be advanced after receiving
such a report and therefore, according to advocate Mr.Joshi notice of
motion no.1662/2018 should be kept pending awaiting report of such
Contractor/Structural Engineer.
3. I have given serious consideration to the arguments
advanced by both the learned lawyers. I have perused the plaint, order
of my learned predecessor passed in notice of motion no.2572/2018.
From perusal of the record of the suit, it is noticed by me that plaintiffs
and defendants have raised disputes in respect of rights of defendant
no.2 to act as Mutawallis in respect of property which is private Wakf
property. Considering the statements made by both the learned
counsels, if really parties will enter into settlement after receiving the
report of Contractor/Structural Engineer from the panel of the Court,
definitely it will be beneficial for both the parties and the dispute will
come to end forever. Hence, I find that for giving fair opportunity to
the parties to settle the dispute between them by consent of both the
parties, it is necessary to appoint Structural Engineer for compliance of
prayer clause (b1) only for purpose of inspection of suit premises and
for suggesting remedies in respect of repairs, water proofing,
strengthening etc. of suit premises. At the same time, it is made clear
that notice of motion no.1662/2018 is necessary to be disposed off
because notice of motion no.2572/2018 was filed in the pendancy of
Notice of Motion no.1662/2018, notice of motion no.2572/2018 is
disposed off and again notice of motion no.1662/2018 is amended and
if notice of motion will remain pending definitely the dispute between
the parties will not come to an end. Therefore, I am of the opinion that
liberty can be given to plaintiffs to file fresh notice of motion only in
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respect of making prayers for repairing, strengthening, water proofing
etc. of suit premises on the basis of the report which will be submitted
by Contractor/ Structural Engineer. Any how, if this Court will be
required to consider all the prayers for notice of motion no.1662/2018
definitely the dispute between the parties will not come to an end.
Therefore, for restricting the dispute between the parties and for giving
opportunity to parties for settlement, I find that notice of motion
no.1662/2018 is necessary to be disposed off. Hence, I proceed to pass
following order.
O R D E R
1. Registrar of this Court is directed to appoint Structural Engineer
from the panel of the Court for inspection of suit premises for
compliance of prayer clause (b1) of the Notice of Motion.
2. Such Structural Engineer should be directed to inspect suit
building and suit premises and to submit his report about the
remedies by which cleaning of water tanks, water proofing,
strengthening, etc of suit premises can be done.
3. Both the parties are directed to equally contribute the cost of such
Civil Structural Engineer.
4. Considering the nature of dispute between the parties, I am of the
opinion that Structural Engineer from the panel of this Court can
be requested to submit his report at the earliest, but no time
frame can be given to maintain the respect of such Structural
Engineer.
5. Registrar of this Court is directed to inform the name of such
Structural Engineer to the Court after consulting such Structural
Engineer and after getting confirmed about fees/charges of such
Structural Engineer for inspection of suit building and suit
premises and for submitting his report as directed by the Court.
6. Registrar of this Court is directed to consult at the earliest, any of
the Structural Engineer from the panel of the Court and to seek
his consent for such work to be completed as directed by the
Court.
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7. Notice of Motion no.1662 of 2018 stands disposed off with liberty
to Plaintiff to file fresh Notice of Motion for making restricted
prayers for cleaning of water tanks, repairing, water proofing etc
of suit premises along with prayer for access to the contractor for
such work. It is made clear that liberty is not being granted to
Plaintiff to make so many prayers as like the prayers from Notice
of Motion no.1662 of 2018.
Sd/
(K.P.NANDEDKAR)
28/06/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 28/06/2019
Transcribed on : 05/07/2019
Signed by HHJ on : 06/07/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
06/07/2019 01.45PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 28/06/2019
Judgment/order signed by P.O on 06/07/2019
Judgment/order uploaded on 06/07/2019
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