Order 1

Order Details: Notice of Motion
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MHCC010061462018 Presented on : 05.05.2018
Registered on : 05.05.2018
Decided on : 19.12.2024
Duration : 06 07 14
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY, AT BOMBAY
NOTICE OF MOTION NO. 1885 OF 2018
IN
SUIT NO. 1505 OF 2017
(CNR NO. MHCC010061462018)
1
2
Zubair Hassam Saudagar
Aged about : 47 years, Occ : Service
R/at : Flat No.6, 2nd Floor,
Belle Vue Building, 52,
Lady Jamshedji Road,
Mahim, Mumbai 400 016.
Shahin Hassam Saudagar
Aged about : 45 years, Occ : Nil
R/at : Flat No.6, 2nd Floor,
Belle Vue Building, 52,
Lady Jamshedji Road,
Mahim, Mumbai 400 016. …. Plaintiffs
Versus
Kadir Shaikh
Aged about : 65 years, Occ : Business
R/at : flat No. 3,
First floor, Belle Vue Building,
52, Lady Jamshedji road,
Mahim, Mumbai 400 016. …. Defendant
CORAM : HIS HONOUR THE PRINCIPAL JUDGE,
SHRI A.SUBRAMANIAM
C.R.NO..
: 19
DATE : 19th DAY OF DECEMBER, 2024
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Appearances :-
Adv. Hassan Khan, Ld. Counsel for plaintiffs.
Adv. Anam Fatima, Learned Counsel for defendant.
ORAL ORDER
1. By present Notice of Motion, the defendant is praying for relief of
grant of permission to repair the terrace and also permission to
appoint Court Commissioner for ascertaining the terrace and
repairs of the suit terrace.
2. It is the case of the defendant who moved present Notice of
Motion that the plaintiff has filed the suit for declaration and
injunction with regard to terrace. It is further pointed that by
order dated 05.05.2017, the defendant was restrained from
disturbing peaceful possession of the plaintiff over said terrace.
Issues with regard to jurisdiction of this Court have been raised. It
is denied that terrace is part of tenanted premises. Defendant is
one of the Directors of the Company who is landlord of suit
premises. It is further contended that there are three buildings
and terrace is on two different building i.e. Glady Chambers and
Glady Chamber Annexe. Whereas premises occupied by plaintiff
is in Belle Vue building. The MHADA has taken out repairs of
three buildings as these buildings are in dilapidated condition
and contractor is appointed by MHADA. It is further pointed that
there are leakages to terrace and water seeps down to the
premises causing severe damage to building as well as ground
floor and premises and occupants of two buildings Glady
Chambers and Glady Chamber Annexe. Hence, present Notice of
Motion being landlord to carryout necessary repairs of the
terrace. It is pointed that Contractor of MHADA has approached
the plaintiff to carryout repairs of the terrace of the two building
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but the plaintiff is not allowing the contractor of MHADA to
carryout repairs of said two buildings. It the terrace is not
repaired in time, it will cause damage to entire building and
Landlord would be responsible for any untoward event. It is
further pointed out that repairing of terrace would be beneficial
to all and hence reliefs claimed be granted.
3. Said Notice of Motion is opposed by the plaintiff by filing reply
contending that present suit has been filed with regard to
appurtenant open terrace to the tenanted premises which forms
part of tenanted premises. The defendant by using extraordinary
means was trying to usurp possession of plaintiff and hence
present suit was filed. It is falsely contended that defendant is
Landlord of said premises. There is an order passed by Court
restraining defendant from disturbing plaintiff’s possession to
said terrace and inspite of this it is via media to breach the order
of the Court. There is no document shown to substantiate that
defendant is landlord of said premises or his legality of
occupation. There is nothing on record to show alleged damage
or leakages or any act by which it can be contemplated that there
is damage to premises. It is further stated that the said properties
are private properties and MHADA cannot and will not initiate
repairs in such circumstances. Hence, considering these
circumstances that the present plaintiff is occupying premises
since 1969, the Notice of Motion be rejected.
4. Perused the Notice of Motion and reply. Heard both the sides.
Considered the submissions advanced. Following points arise for
my consideration and I answer the same as under for the reasons
stated hereinafter;
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Sr.
No.
POINTS FINDINGS
1. Whether prima-facie case is made out
by the defendant for grant of
injunction permitting them to carryout
repairs of terrace ?
:: In the negative.
2. Whether balance of convenience lies
in favour of the defendant ?
:: In the negative.
3. Whether irreparable loss will be
suffered by the defendant if the
prayers in Notice of Motion are
denied?
:: In the negative.
4. What order ? :: As per final order.
As to Point No.1
5. The first point that has to considered is that the defendant claims
himself to be a Director of the Company owning the property. At
the outset, entire contentions are without of any specifics. It is
surprising that the company who is allegedly owning the
premises is not coming forth to raise such claim. Whether
defendant as Director can raise this claim is not doubtful.
Secondly, no document is filed on record to show that in what
manner present defendant is the owner/landlord/legal
occupant/occupant of the said premises. If we consider this
aspect, entire right of the defendant in the said property is a
mystery and is not revealed from pleadings available as on date.
The suit is filed in the year 2017 and yet Written statement is not
filed.
6. Even assuming that admittedly, defendant is occupying one of the
premises he can be termed as an occupant and his right can be
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considered as such. Even if this contention is considered, it is for
defendant to show the damage and the nature of repairs that are
required. Mere vague statement is made that repairs are to be
carried out. Surprisingly, it is stated that MHADA has decided to
carryout repairs. If MHADA, a Statutory body is carrying out
repairs, it would carry out survey, prepare estimate and detailed
plan of repairs carried out. None of these documents are coming
forthwith. There is no specific contention raised in this Notice of
Motion as to what is the damage caused or the nature of repairs
to be effected and in what manner.
7. A court commissioner is being called for work which is not
ascertained or for work which is not stated. This clearly shows
that the defendant is trying to make some recourse so that he can
enter on terrace and have some benefit out of said order and try
to make incorrect contentions in this regard.
8. There could be some repairs required to any building but whether
for carrying out such repairs, access to terrace is required and
whether such repairs are to be carried out is a question which has
not been answered properly by defendants. Thus, on both counts
with regard to legal entitlement and factual entitlement of
repairs, the defendant has miserably failed. Considering same, I
hold that there is no prima-facie case with the defendant. Hence,
I answer Point No.1 in the negative.
As to Points No.2 and 3
9. As regards balance of convenience and irreparable loss, the order
is passed in favour of present plaintiffs by my Ld. Predecessor.
Same is still in existence. Present Notice of Motion is filed in the
year 2018 and only on the insistence of this court that this Notice
of Motion is heard, matter is argued today. Surprisingly, from
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2018 till date, there was no insistence to get the repairs carried
out. This shows that there is no balance of convenience or
irreparable loss in favour of defendant. In such circumstances,
considering above findings that the order of injunction is in
favour of plaintiffs and defendant is trying to breach the order
under garb of present Notice of Motion, so the time period
elapsed and facts stated herein above, it is clear that balance of
convenience and irreparable loss does not lie in favour of the
defendant. Hence, I answer Points No. 2 and 3 in the negative.
As to Point No.4
10. In view of findings to Points No.1, 2 and 3 in the negative,
defendant is not entitled for any reliefs. Hence, I pass the
following order.
O R D E R
1. Notice of Motion No. 1885 of 2018 in Suit No. 1505 of 2017 is
rejected and disposed off accordingly.
2. Matter be posted for framing of issues.
DATE : 19.12.2024 (A.SUBRAMANIAM)
PRINCIPAL JUDGE
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711).
Dictated and transcribed on : 19.12.2024.
Checked and signed on : 24.12.2024.
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(Grade-III)
DATE : 24.12.2024 at 07.15 pm Mr. Mohit M. Patange
Name of the Judge (with Court no.) : SHRI A.SUBRAMANIAM. C.R.NO.19.
Date of pronouncement of judgment/order : 19.12.2024
Judgment/order signed by the P.O. on : 24.12.2024
Judgment/order uploaded on : 24.12.2024
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