Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO : MHCC010055922018. 1 Notice of Motion No. 1687/2018
in L.C. Suit No. 2087/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1687 OF 2018.
IN
L.C. SUIT NO. 2087 OF 2018.
Rajendra A. Singh. ...........……………………….. … PLAINTIFF.
V/s.
MCGM+2. …...……………………………………. … DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 28th November, 2024.
APPEARANCES :
Ms. Sapna Khobragade, Ld. Advocate for the Plaintiff.
Mr. S.R. Yadav, Ld. Advocate for Defendant Nos.1 and 2/ MCGM.
Mr. Priyank Shukla, Ld. Advocate for Defendant No.3.
01. The plaintiff has taken out this Notice of Motion- ‘the NM’,
restraining defendant No.3 from obstructing defendant Nos.1 and 2 and
/or the plaintiff to carry out the necessary repairs of the suit premises,
described in the plaint, and from carrying the temporary repairs to roof
to stop heavy leakages therein. Perused the NM, supporting affidavit of
Ashish Rajendra Singh, POA of the plaintiff, reply of the defendants and
written notes of the plaintiff and defendant No.3 on this NM. Heard.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether the plaintiff has a prima facie
case in his favour? ….…........................... Common Finding :
No. The plaintiff
is placed at liberty
to approach to the
Office of MCGM
for necessary
permission.
(2). Whether balance of convenience lies in
favour of the plaintiff? …......................... ...
(3). Whether the plaintiffs would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted ?......................
(4). What Order? …................….................... …As per final Order.
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CNR NO : MHCC010055922018. 2 Notice of Motion No. 1687/2018
in L.C. Suit No. 2087/2018.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for joint discussion. By filing this suit, the plaintiff
contended that he is in possession of Room No.2, situated at Ramsurat
Yadav Chawl, Lake Road, Tulshetpada, Bhandup (W), Mumbai (the suit
premises). Since long, the plaintiff, along-with his family, are residing in
the suit premises. Initially, the rent receipts were issued in the name of
his father- Acchibar Singh. The plaintiff is having documents like Adhar
Card, Electricity Bill, Election Card, the Slum Survey Receipt pertaining
to the suit premises. In view of the Govt. Notification dtd. 05.06.2002, it
is situated at declared slum area. It was in dilapidated condition, having
several leakages. Being inhabitable, it was about to collapse. Defendant
No.3 is landlord of the suit premises and he miserably failed to maintain
the same. Hence, the plaintiff approached to him for carrying necessary
repairs. However, he refused to carry such repairs and agreed to permit
for the same on payment of Rs. 50,000/-. Accordingly, the plaintiff paid
such amount to him in cash and assured that he wouldn’t obstruct such
repairs. Hence, on 06.03.2017, he started repairs on the suit premises at
his expenses. However, defendant No.3 further demanded Rs. 15 lakh to
which the plaintiff refused. Therefore, to grab such money, the plaintiff
filed suit No. 764/2017, along-with the NM. In that matter, this plaintiff
(defendant No.3 therein) made statement that he wouldn’t carry further
construction on the suit premises. Therefore, immediately, the plaintiff
stopped the construction work and it is not resumed even till date. His
father died on 29.3.2017 and on 05.04.2017, the plaintiff's son Ashish
applied to Office of the MCGM for repairs permission, which is still not
received. However, in collusion with defendant Nos. 1 and 2, defendant
No.3 got issued, to the plaintiff, the notice dtd. 11.05.2017, U/s. 354-A
of the MMC Act. Presently, the plaintiff and his family is residing in the
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CNR NO : MHCC010055922018. 3 Notice of Motion No. 1687/2018
in L.C. Suit No. 2087/2018.
neighbor's house and the suit premises is not in habitable condition. The
plaintiff is put at severe difficulty and sufferings owing to deliberate non
-cooperation of the defendants. Hence, he had to file this suit, directing
the defendants to allow him to carry such repairs, along-with the other
ancillary reliefs, and this NM for the aforesaid reliefs. In support of this
NM, he relied upon copies of Rent receipt, Electricity bill, Adhar Card,
Slum Notification, the application dtd. 04.05.2017, for repair, his notice
reply dtd.16.05.2017, etc.. Defendant Nos. 1 and 2 resisted this NM as
the suit is bad for want of notice U/s. 527 of the MMC Act. The plaintiff
had no cause of action to file this suit. They contended that defendant
No.3 lodged the complaint on 17.03.2017, as regards the unauthorized
construction carried by this plaintiff. That apart, when the said Ashish
applied for a permission to carry repair, he was informed to submit the
documents about its authorization with NOC from the owner, wherein
he failed. Contrarily, he started construction without any permission. On
inspection, the construction of vertical extension to the existing ground
floor structure was found in progress. Accordingly, on 11.05.2017, the
said notice came to be issued. However, subsequently, while inspecting
the site again on 09.03.2018, the concerned Officer observed that such
construction was stopped and therefore, no Speaking Order was passed
in this matter and the proceeding was submitted for closing this notice.
Thus, the plaintiff did not come before this Court with clean hands and
hence, the NM needs to be dismissed. Supporting their claim, they filed
copies of the complaint dtd. 17.03.2017, the inspection report, drawn
on 11.05.2017, the notice dtd. 11.05.2017, the plaintiff's application for
repair permission, the letter dtd. 24.04.2017, calling him to submit the
documents, the subsequent inspection report dtd. 09.03.2018, revealing
on construction on the site, the photo and the report dtd. 02.08.2022,
to close the notice. Likewise, defendant No.3 resisted this NM mainly on
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CNR NO : MHCC010055922018. 4 Notice of Motion No. 1687/2018
in L.C. Suit No. 2087/2018.
the count that the plaintiff carried unlawful construction and filed this
suit to take away effect of the NM Order dtd. 24.03.2017, passed in Suit
No.764/2017. He further denied the adverse contentions of the plaintiff
and prayed for dismissal of the NM. In their written submission on NM,
the plaintiff and defendant No. 3 re-iterated their respective stands.
04. Considering this record, at the outset, it is notable that it is
nowhere the plaintiff’s claim that he was carrying the necessary repairs
to the suit premises only after securing permission from defendant Nos.
1 and 2 or say in view of a sanctioned plan. If said differently, it is not
his say that despite due permission from the MCGM, he was obstructed
by the defendants to proceed with the repairs. Now, by NM, his anxiety
is two-fold viz. firstly he is praying for the relief of perpetual injunction,
directing defendant No.3 not to obstruct defendant Nos.1 and 2 and/or
the plaintiff to carry out such repairs to the suit premises and the same
relief temporary repairs. However, as referred above, the record is silent
to assume that he was ever permitted by defendant Nos.1 and 2 to carry
such repairs. True that on 05.04.2017, his son - Ashish applied for grant
of such permission and in response thereto, by a letter dtd. 24.04.2017,
he was called by the said Office to submit documents showing legality
of the structure and NOC of the concerned owner. However, there seems
no compliance of this letter on the plaintiff's part. Contrarily, he started
to carry the construction, which was complained by defendant No.3. As
such, during the site inspection dtd. 11.05.2017, the Office of defendant
Nos. 1 and 2 observed that the work of vertical extension to the existing
ground floor was in progress. Consequently, the notice dtd. 11.05.2017,
issued U/s.354-A of the MMC Act, was issued to the plaintiff. Moreover,
in view of the inspection dtd. 09.03.2018, it was found that he stopped
to carry further repairs. In view of this record, prima-facie, it can safely
be inferred that although, he was not permitted to carry such repairs, he
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CNR NO : MHCC010055922018. 5 Notice of Motion No. 1687/2018
in L.C. Suit No. 2087/2018.
initiated the said work and hence, on a complaint, the above notice was
issued to him. Simultaneously, there is nothing on record to gather that
defendant No.3 tried to restrain defendant Nos.1 and 2 or this plaintiff,
out of way, from carrying such repairs. Certainly, he, being the landlord,
has every right to legally protect his interests in the property. As such, it
seems that he lodged complaint to the Office of defendant Nos.1 and 2
against the said construction and in the result, the said notice came to
be issued. This response was quite natural on behalf of defendant No.3.
On this backdrop, in absence of a valid permission granted in his favour,
the plaintiff can’t be allowed to carry the alleged repairs. Even, he made
the statement in suit No. 764/2017 that he would not carry the further
construction. In the circumstances, this Court is of the opinion that, at
this stage, the plaintiff could not present a prima-facie case in his favour
and balance of conveyance also does not tilt in his side. Being so, he is
not entitled for the reliefs claimed in the NM. Consequently, leaving him
at absolute liberty to secure necessary permission from the Office of the
MCGM, for carrying requisite repairs to the suit premises, this NM is to
be dismissed. Hence, I answered point Nos.1 to 3 accordingly and to the
answer to point No. 4, I pass the following Order:
-: O R D E R :-
(i). Leaving the plaintiff at liberty to approach to Office of
defendant Nos. 1 and 2 /MCGM to secure necessary
permission for requisite repairs to the suit premises,
Notice of Motion No. 1687/2018 stands dismissed.
(ii). The parties to expedite the matter.
(iii). Notice of Motion No. 1687/2018, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 28.11.2024. City Civil Court, Mumbai.
Dictated on : 28.11.2024.
Transcribed on : 05.12.2024.
Checked and Signed on : 06.12.2024.
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CNR NO : MHCC010055922018. 6 Notice of Motion No. 1687/2018
in L.C. Suit No. 2087/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
06.12.2024 at 01.05 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 28.11.2024
Judgment/Order signed by P.O. on 06.12.2024
Judgment/Order uploaded on 06.12.2024
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