Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.1549-2011 L.C.SU no.1401-2011
CNR MHCC010055822018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1549 OF 2011
IN
L.C. SUIT NO.1401 OF 2011
Rasbehari Ramsarup Arora ]...Plaintiff.
Versus
Municipal Corporation of ]
Greater Mumbai & Anr. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 20th April, 2018.
Mr. S.P. Dalal with Mr. Kapadia, advocate for plaintiff.
Ms. Patil, advocate for defendant.
ORDER
1. The plaintiff has taken out this notice of motion for
appointment of Court Commissioner to inspect the suit premises and
report. Secondly, the plaintiff has prayed for temporary injunction for
restraining the defendant Corporation from acting in pursuance of
impugned notice dated 14.5.2011 issued under Section 351 of the
M.M.C. Act and the final order dated 16.6.2011.
-- 1 of 6 --
2 NM no.1549-2011 L.C.SU no.1401-2011
2. The facts, in brief, are that the suit building is owned by the
defendant no.2 society and constructed in 1960, on the gradient of
Padma tekadi (Hill). The land where the suit building has been
constructed descends from south to north and also from west to east.
3. According to the plaintiff, on 21.10.1981 he acquired the
garage along with premises attached thereto comprising of toilet and
premises totally admeasuring 350 sq.ft. area, Its entrance was/ is from
the main passage of the building and adjacent to lift of the society.
4. In second week of April, 2011 the officers of the defendant
called the plaintiff to allow inspection of the suit premises. The plaintiff
offered the same. The plaintiff came to know that inspection was done
on the complaint of some members of the society.
5. The plaintiff received notice dated 14.5.2011 issued under
Section 351 of the M.M.C. Act alleging that the plaintiff has carried
out an unauthorized construction of servant room admeasuring 10.5
meters x 1.4 meters and toilet admeasuring 5.85 meters x 1.4 meters in
the garage no.1. The plaintiff replied the said notice on 25.5.2011
denying the allegations and by contending that the notice structure
exists since beginning. The plaintiff also submitted documents, plans
etc. However, by ignoring the same and without application of mind
the defendant passed an order directing the plaintiff to remove the
notice structure or to face an action for its demolition, which led
institution of suit.
6. The defendant Corporation opposed the motion by
contending that it received a complaint from local resident Ms. Manju
-- 2 of 6 --
3 NM no.1549-2011 L.C.SU no.1401-2011
Sharma and others. Consequently, upon inspection of suit site on
28.3.2011 an unauthorized construction of notice structure was found
and therefore, the impugned notice was issued. The plaintiff did not
reply satisfactorily and therefore, the impugned order was passed. The
plaintiff by filing an affidavit in rejoinder refuted the contentions raised
by the defendant.
7. Considering the submissions made by the respective
advocates and the copies of documents placed on record, the following
points are decided for the reasons stated below:
SR.
NOS.
POINTS FINDINGS
1 Whether the plaintiff has made out a prima
facie case?
In affirmative.
2 Whether the points of balance of
convenience, hardship and irreparable loss lie
in favour of the plaintiff?
In affirmative.
3 Whether the plaintiff is entitled to temporary
injunction as prayed for?
In affirmative.
4 Whether the plaintiff is entitled for
appointment of Court Commissioner for
purpose mentioned in the motion?
In the negative.
REASONS
As to point nos.1 to 3:
8. It is necessary to look into the documents placed on record.
The copy of agreement dated 21.10.1981 prima facie shows that the
plaintiff acquired the said garage and attached bathroom with fixtures
fittings for consideration Rs.17500/. The copy of sanctioned plan
dated 11.7.1977 prepared for the purpose of installation of second lift
-- 3 of 6 --
4 NM no.1549-2011 L.C.SU no.1401-2011
prima facie shows the existence of said garage lobby and toilet block
near the said garage.
9. The copy of impugned notice shows the said garage, toilet
and room and their dimensions. Under such circumstance, when the
existence of the garage and the toilet block can be gathered from 1977
as shown in the aforesaid copy of approved plan, there is possibility of
their existence since prior to 1977. However, the defendant did not
issue copy of original sanctioned plan of the suit building to the plaintiff
when it was requested under R.T.I. Act. Whether the plaintiff converted
the lobby to his exclusive use by raising room is a matter to be
considered on merits. Therefore, at this juncture the intervention of
this court is necessary. If the defendant is not restrained, there may be
demolition of the notice structure which will cause irreparable loss to
the plaintiff. Thus, the plaintiff has made prima facie case. Accordingly,
point nos.1 to 3 are answered in affirmative.
As to point no. 4:
11. So far as point no.4 is concerned, it is well settled position
of law that Commissioner cannot be appointed for collection of
evidence. Commissioner can be appointed for local investigation to
obtain evidence which from its peculiar nature can only be had on the
spot like boundary dispute or identity of land as held in the case of
Kisanlal vs. Dinkar reported in 2003 (4) All M.R. 1083. Here, the
plaintiff can very well bring on record the factual aspects of the said
garage and location of toilet block etc. Moreover, the matter in dispute
relates to legality and vires of the construction of the notice structure
and of the impugned notice and the order. Therefore, Commissioner
cannot be appointed for the purpose, for which the plaintiff has prayed
-- 4 of 6 --
5 NM no.1549-2011 L.C.SU no.1401-2011
for the same. Accordingly point no.4 is answered in the negative and
the following order is passed.
ORDER
1. Notice of Motion no.1549 of 2011 is made absolute in terms of
prayer clauses (b) by restraining the defendant from demolishing
the notice structure in pursuance of the impugned notice and
order.
2. The notice of motion no.1549 of 2011 is dismissed in respect of
the prayer clause (a).
3. Parties to bear their respective costs.
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
City Civil Court, Mumbai.
Dated: 20.04.2018
Directly typed on : 20/04/2018.
Checked by HHJ on : 02/05/2018.
Signed by HHJ on : 03/05/2018.
-- 5 of 6 --
6 NM no.1549-2011 L.C.SU no.1401-2011
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.05.2018 At 02.05 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
20.04.2018
JUDGMENT/ORDER signed by
P.O. on
3.05.2018
JUDGMENT/ORDER uploaded
on
04.05.2018
-- 6 of 6 --