Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2129-19 in Suit No. 1396-19
CNR NO.MHCC01 00592819
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2129 OF 2019
IN
L.C. SUIT NO. 1396 OF 2019
Mr. Shubham S/o. Prajesh Shah ......Plaintiff
V/s.
Mrs. Kajal Prajesh Shah & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 28th June, 2019.
Appearance:
Ld. Adv. Mr. Narvekar for the plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks injunction restraining
the defendants from implementing the notice dated 11.06.2019, issued
by the defendant corporation under Section 354A of the Mumbai
Municipal Corporation Act, 1888 (hereinafter referred to as 'the MMC
Act') in respect of suit structure.
2. Heard Learned Advocate for the plaintiff and the Learned
Advocate for the defendant corporation.
3. The plaintiff was served with the notice on 09.10.2018 under
Section 354A of the MMC Act for ongoing unauthorized construction of
-- 1 of 3 --
2 NM 2129-19 in Suit No. 1396-19
mezzanine floor. Further, after the reply, order was issued on
10.10.2018.
It is the case of the plaintiff that no reconstruction is carried out
by him. It is stated that the reply of the plaintiff was not considered.
The plaintiff contends that the action of defendant is in contravention of
law.
4. The defendant on the other hand contend that the letter
submitted by plaintiff on 13.12.2018 points out that he has removed the
notice work on his own. The officers of the defendant inspected the
premises and found that notice work was removed Thereafter, the
plaintiff again commenced construction and found that notice work has
being reconstructed by the plaintiff. Therefore, the notice was issued to
the plaintiff on 11.06.2019.
5. The plaintiff had denied the letter dated 13.12.2018 written by
him to corporation. It is the specific case of the defendant corporation
that the plaintiff had removed the earlier construction in view of letter
dated 13.12.2018 and the plaintiff again commenced to reconstruct the
structure. These facts are not denied by the plaintiff by any affidavit in
rejoinder. The plaintiff had not disclosed all the relevant facts in his
pleadings.
Impliedly, the plaintiff by letter dated 13.12.2018 had admitted
the unauthorized construction, accordingly removed it and again was
carrying out the new construction. The plaintiff is seeking equitable
relief by this notice of motion. He has to approached the Court with
clean hands.
The plaintiff has failed to made out primafacie case. The balance
of convenience does not lies in favour of the plaintiff. The plaintiff
-- 2 of 3 --
3 NM 2129-19 in Suit No. 1396-19
would not be put to irreparable loss, if the temporary injunction is
refused. In the result, following order is passed.
ORDER
The Notice of Motion No. 2129/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 28.06.2019 City Civil Court, Mumbai.
Dictated on : 28.06.2019
Transcribed on : 29.06.2019
Signed by HHJ on : 29.06.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.06.2019 at 4.00 pm.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
28.06.2019
JUDGMENT/ORDER signed by
P.O. on
29.06.2019
JUDGMENT/ORDER uploaded
on
29.06.2019
-- 3 of 3 --