Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 2088-19 in S.C.SUIT no.1450-16
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 2088 OF 2019
(CNR no. MHCC01-005802-2019)
IN
SHORT CAUSE SUIT NO. 1450 OF 2016
(CNR no. MHCC01-006601-2016)
Kiran Roy
Age : 52 years,
Residing at 1-B, Embassy Apartment, 46,
Nepean Sea Road, Mumbai – 400 026.
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Plaintiff
Versus
1. Yogesh Roy
Age : 57 years
Residing at 1-B, Embassy Apartment, 46,
Nepean Sea Road, Mumbai – 400 026.
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]
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2. Lavina Yogesh Roy
Age : 48 years
Residing at 1-B, Embassy Apartment, 46,
Nepean Sea Road, Mumbai – 400 026.
]
]
]
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Defendants
Appearances:-
Ld. Advocate Mr. Aditya Talpad for the Plaintiff.
Ld. Advocate Mr. Amol Kuberia for Defendants.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 5th March, 2020.
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2 NM no. 2088-19 in S.C.SUIT no.1450-16
O R A L O R D E R
1. This Notice of Motion is taken out, after the matter is
fixed for recording evidence, with following prayers:-
(a) Direct the Defendants to immediately and
permanently remove the said dog from the Suit Flat/
Common Areas;
(b) Restrain the Defendant from keeping a dog or any
kind of pet in the Suit Flat;
(c) Direct and restraint the Defendants to not to conduct
any sort of commercial activities in the Suit
Flat/Common areas (living/hall room, kitchen, garden
etc.) of the Suit Flat as well as from the car garage
space;
(d) Direct and restraint all persons like tailors’ workers,
customers and all other unidentified and unknown
persons from visiting the Suit Flat/Common area for
commercial activities;
(e) Direct the concerned jurisdictional police station i.e.
Malabar Hill Police Station, or any officer duly
appointed by the Municipal Commissioner to
immediately seize the said dog owned/kept by the
Defendant in the Suit Flat;
(f) Permanently restrain the Defendants from obstructing
the plaintiff and his family members from enjoying
the usage of the common areas in the suit flat;
(g) Restrain the Defendants from doing and/or
conduction any such activity/ies in the suit flat that
would cause nuisance to me and my family and that
would jeopardize our rights in using the common
areas of the suit flat;
2. In the affidavit in support of the Notice of Motion, it is
alleged that the defendants are keeping a Dalmatian dog and
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3 NM no. 2088-19 in S.C.SUIT no.1450-16
conducting unauthorized commercial activities in the common area
of the suit flat causing obstruction to the plaintiff and his family
members from accessing the common area. In affidavit in reply to
the said Notice of Motion, the defendants have contended that the
averments in the affidavit in support of the Notice of Motion are
inconsistent with each other, the reliefs claimed are beyond purview
of this Court and instant application is filed to harass the defendants
and to cause delay.
3. After careful reading of the prayers in the Notice of
Motion, affidavit in support, reply filed thereto and record of this
case, it is clear that the suit is for permanent injunction restraining
the defendants from dispossessing the plaintiffs from the suit
bedroom and restraining them from causing obstruction in the use of
common areas in the suit flat. The principal allegation against the
defendants is that the dog causes inconvenience to family members
of the plaintiff. Similarly, it is claimed that the defendants are
carrying on tailoring activities in the common areas of the suit flat.
However, there is no averment in the plaint in respect of these 2
aspects. In absence of clear pleading, no interim reliefs can be
granted as prayed in this Notice of Motion. In this regard the
plaintiff has to approach The Municipal Corporation of Greater
Mumbai if he has grievance against keeping dog in the suit flat in
contravention of section 384 of Mumbai Municipal Corporation Act,
1888 or commercial use of the residential premises. The plaintiff has
not filed anything on record to show that he approached concerned
ward office of The Municipal Corporation of Greater Mumbai.
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4 NM no. 2088-19 in S.C.SUIT no.1450-16
It is also important to note that on 14.09.2018 issues
were framed and matter was fixed on 22.11.2018. On the latter
date the plaintiff was absent, therefore, matter was fixed for
dismissal on next date. On 02.02.2019, adjournment was granted to
the plaintiff subject to payment of costs of Rs.1,000/- (Rupees One
Thousand). The matter was fixed for cross examination of PW1 on
05.03.2019. Thereafter, the instant Notice of Motion is taken out by
the plaintiff on 07.06.2019. All these events depict plaintiff’s conduct
that the instant Notice of Motion is filed to delay the matter and
therefore, cost will have to be imposed upon the plaintiff. Hence,
following order:
ORDER
1. Notice of Motion No.2088 of 2019 is dismissed with costs of
Rs.5000/- (Rupees Five Thousand only) payable to the
defendant on or before next date.
sd/-
(C. V. Marathe)
Judge,
Date : 05.03.2020. City Civil Court, Gr. Mumbai.
Dictated on : 05.03.2020
Transcribed on : 05.03.2020
Signed by HHJ on : 09.03.2020
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5 NM no. 2088-19 in S.C.SUIT no.1450-16
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.03.2020 at 3.52 p.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
05/03/2020
JUDGMENT/ORDER signed by
P.O. on
09/03/2020
JUDGMENT/ORDER uploaded
on
11/03/2020
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