Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Cont.NM 1672-18 in L.C.SUIT no.1697-14
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CONTEMPT NOTICE OF MOTION NO. 1672 OF 2018
(CNR no. MHCC010055412018)
IN
LONG CAUSE SUIT NO. 1697 OF 2014
(CNR no. MHCC010064872014)
Mr. Abdul Azim Abdul Rehman ]
Land Bearing Cts No.419, Plot No.344, ]
Opp. Bezzola Complex, ]
S.T. Road, Chembur, Mumbai71 ]....Plaintiff
V/s
1. The Municipal Corporation of ]
Gr. Mumbai, having their Head office at ]
Mahapalika Bhavan,Mahapalika ]
Marg, Fort, Mumbai400 001 ]
2. Ms. Sandhya Nandekar, ]
Assistant Municipal Commissioner ]
M West Ward, Municipal Office, ]
Sharadbhau Acharya Marg, ]
Near Natraj Cinema, ]
Chembur, Mumbai71 ]....Respondents
Appearances:
Ld. Advocate Mr. A. A. Pande for the Plaintiff.
Ld. Advocate Mr. Khandagle for defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 20th July, 2019
O R A L O R D E R
1. This is an application by Notice of Motion under O.XXXIX R.2(A)
of The Code of Civil Procedure, 1908 for making order against
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2 Cont.NM 1672-18 in L.C.SUIT no.1697-14
defendant MCGM for breach of injunction order. It is stated that on
27.06.2014 this Court granted temporary injunction against
defendant/MCGM from demolishing the suit premises without
following due process of law, the said order was communicated to the
defendant on 01.07.2014 and 05.07.2014. It is further alleged that
despite that order, on 09.11.2017 at about 1.00 p.m. the
respondents/officers of defendant/MCGM came to the suit premises and
started removing articles from the suit shop no. 16, they caused damage
to the extent of Rs. 42 to 45 lacs. It is claimed that said action of
demolition is in complete violation of the order dated 27.06.2014,
therefore, appropriate action under relevant provisions be taken against
the defendant/MCGM and the respondents for committing breach of
order of injunction of this Court.
2. The respondents have filed affidavit in reply contending inter alia
as under:
The contents of the motion and affidavit are totally false. The
plaintiff has not given clear description of the suit premises. The suit
premises are located at Municipal plot reserved for various purposes
like roads, transport garage, BSES receiving Station, Municipal School,
Play Ground, Municipal Housing etc. On 25.07.2017 notices under
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3 Cont.NM 1672-18 in L.C.SUIT no.1697-14
Section 314 of Mumbai Municipal Corporation Act,1888 (hereinafter
"MMC Act" for brevity) issued against all the unauthorized structures in
the area. Those notices were issued to Gufran Khan, Birju Singh, Arif,
Rajeshkumar Jaiswal, Mohammad Hanif, Shahbaz Shaikh, Mohammad
Dilshad Shaikh, Mulaji Gulab and Mubarak Shaikh. Personal hearing
was given to these persons and thereafter orders were passed against
them on 06.10.2017. Thereafter, police protection was sought and the
site was visited for demolition on 09.07.2011. The said persons were
permitted to remove their belongings from their respective structures.
At the time of demolition of one notice structure occupied by Mr.
Dilshad Shaikh, the plaintiff opposed the action representing that the
said notice structure was his own structure. However, the plaintiff failed
to specify that it was the suit premises as the photographs submitted at
the time of filing of the suit were not matching with the notice
structure. After getting confirmation from legal staff Mr. Tandel, the
notice structure was demolished. The respondents have not demolished
the suit premises. The photographs annexed to the application did not
clearly show the location of the suit premises. Therefore, the application
be dismissed.
3. After going through rival contentions, it is to be ascertained
whether the defendant/MCGM’s officers demolished the suit premises
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4 Cont.NM 1672-18 in L.C.SUIT no.1697-14
(as mentioned in the plaint) on 09.11.2017 in defiance of injunction
order dated 27.06.2014. After reading the plaint, description of the suit
premises given in paragraph no. 1 is "two commercial premises being
SHOPS No. 15 AND 16 on the plot of land bearing C.T.S. no. 419 Plot
no. 344 Opp. Bezzola Complex, S.T. Road, Chembur, Mumbai400 071".
The location of suit premises (shops) is not provided by giving four
boundaries thereof. The photographs annexed to the plaint are taken
from inside and they are not showing exact location of the suit
premises. The instant application will have to be decided by keeping in
mind above aspects. The respondents are claiming that on 09.11.2017
they demolished various unauthorized structures after issuing notices.
They further claim that at the time of demolition the plaintiff claimed
right over one notice structure which was different from the suit
premises and after confirming from legal staff Mr. Tandel, the same was
demolished. In the affidavit in reply, it is clearly stated that notice
structure of Mr. Dilshad Shaikh was demolished and suit premises was
not demolished.
4. In support of the application, the plaintiff has filed photographs
showing that the officers of defendant MCGM were confronted by him
at the time of demolition. He has filed photographs of the suit premises
from inside and the same photograph which is filed along with the
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5 Cont.NM 1672-18 in L.C.SUIT no.1697-14
plaint in the year 2014 is annexed to the application displaying inner
looks of the shops. None of these photographs along with application
show clear description of the suit premises with serial no. 15 and 16
(which is the description given in the plaint). Be that as it may, the
photographs are not proved in accordance with the procedure for
proving the photographs under Indian Evidence Act, 1872. When the
defendants have challenged location/description of the suit premises, it
was onus on the plaintiff firstly to show exact location of the suit
premises and secondly that the same were demolished by the
respondents on 09.11.2017. In absence of clear proof in this regard it
will not be proper to take action for breach of injunction order. As such
the plaintiff is not entitled for the reliefs claimed. Hence, the following
order is passed:
ORDER
1. Contempt Notice of Motion No. 1672 of 2018 is dismissed.
sd/
(C. V. Marathe)
Judge,
Date : 20.07.2019 City Civil Court, Gr. Mumbai.
Dictated on : 20.07.2019
Transcribed on : 20.07.2019
Signed by HHJ on : 20.07.2019
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6 Cont.NM 1672-18 in L.C.SUIT no.1697-14
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.07.2019 at 3.43 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
20/07/2019
JUDGMENT/ORDER signed by
P.O. on
20/07/2019
JUDGMENT/ORDER uploaded
on
20/07/2019
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