Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1764 OF 2018
IN
LONG CAUSE SUIT NO.2234 OF 2017
Mr.Faiyaz Khalil Shaikh,
aged 41 years, Occ.Service,
Indian Inhabitant, residing at
flat no.210, Bldg.No.R4
Varna Coop.Hsg.Soc.Ltd. Lallubhai
Compound, Mankhurd, Mumbai400 043. ....Plaintiff
V/s
The Municipal Corporation of
Gr. Mumbai, through the Assistant,
Municipal Commissioner M(East) Ward,
Chembur, Mumbai400 071 ...Defendant
Appearances:
Ld. Advocate Asit Singh for the Plaintiff.
Ld. Advocate Mrs.Bhoir for defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
C.R.No.8
DATED : 05th March, 2019
ORAL ORDER
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
2. The plaintiff's case in nutshell is as under:
The plaintiff has been allotted Flat No. 210 in Bldg.No.R4, Varna
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Coop.Hsg.Soc.Ltd., Lallubhai Compound, Mankhurd, Mumbai400 043
(hereinafter referred to as "suit premises" for brevity) in lieu of hut
no.F/1/321 situated at Jakera Bunder Road, Sweree, Mumbai400 015.
The said allotment is made in favour of the plaintiff by way of allotment
letter dated 4/6/2010 alongwith possession letter dated 29/8/2008
issued by defendant no.1 MCGM. Despite that the officer attached to
M(East) ward and F (South) ward of defendant no.1 MCGM came
alongwith the police officers on 17th day of March at about 12.00 p.m.
and threatened the plaintiff to vacate the suit premises in the first week
of April 2012 as the premises is not the possession of the defendant
no.1 is illegal. Therefore, plaintiff has prayed for temporary injunction
restraining the defendant MCGM from evicting plaintiff from the suit
premises without following due process of law.
3. Defendant has filed affidavit in reply contending as under:
The Bldg.R4 is handed over to G(South) Ward of defendant
MCGM for rehabilitation of project affected persons. F(South) Ward
has never issued any letter in favour of the plaintiff allotting the suit
premises to him. Therefore, the documents filed by the plaintiff are
bogus documents. The defendant MCGM has removed the plaintiff
from the suit premises and other unauthorized occupants from other
premises and the said premises is taken over by G (South) Ward of
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defendant MCGM. Therefore, Notice of Motion be dismissed.
4. Considering rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:
Sr.No. POINTS FINDINGS
1. Whether plaintiff proves that the suit
premises as semblance of legality.?
In the negative
2. Whether plaintiff has made out
ingredients required for grant of
temporary injunction in its favour.?
In the negative
3. What order ? Notice of motion is
dismissed.
REASONS
AS TO POINTS NO.1 & 2:
5. In order to prove that suit premises is allotted to the plaintiff in
capacity of project evicted person by F(South) Ward of defendant
MCGM, the plaintiff has filed on record possession letter dated
4/6/2010 signed by Assistant Commissioner F(South) ward. The
defendant MCGM has filed on record letter issued by Assistant Engineer
(M&R) F(South) Ward dated 5/2/2019 wherein it is clarified that
F(South) Ward has not issued any allotment letter to the plaintiff in
respect of the suit premises. Therefore, it is clear that the document viz
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allotment letter is prima facie bogus document. It is interesting to note
that in the said allotment letter the date mentioned is 4/6/2010 but
signatures of officers are dated 29/8/2008. Therefore, the document
itself suffers from doubts and cannot be relied upon. Therefore, the
plaintiff has failed to prove that the suit premises as legal semblance.
He is not coming before the Court with clean hands. It has also come
on record that the defendant MCGM has evicted the plaintiff from the
suit premises on 1/2/2019.
6. Ld.Advocate for th plaintiff has submitted case law Krishna Ram
Mahale (Dead). by his Lrs. V/s. Mrs.Shobha Venkat Rao [1989 (3)
Bom.C.R.364] to argue that person in settled possession cannot be
dispossessed even by owner without due process of law. However, in
this matter the plaintiff has produced prima facie bogus documents. In
that backdrop he is not entitled for any assistance from the aforesaid
legal principle.
7. From the aforesaid circumstances plaintiff is not entitled for any
discretionary relief of injunction. Hence, points no.1 and 2 are
answered in the negative and following order.
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ORDER
Notice of Motion No.1764 of 2018 is dismissed with costs.
(C.V.MARATHE)
DATE: 05/03/2019 JUDGE
CITY CIVIL COURT
GRATER MUMBAI
Dictated on : 05.03.2019
Transcribed on : 05.03.2019
Signed on : 07.03.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
07.03.2019 at 04.05 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI C.V.MARATHE
(C.R. NO.08)
Date of Pronouncement of JUDGMENT/
ORDER
05.03.2019
JUDGMENT/ORDER signed by P.O. on 07.03.2019
JUDGMENT/ORDER uploaded on 07.03.2019
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