Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2276/19 (LCS 1461/19)
MHCC010062692019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.2276 OF 2019
IN
LONG CAUSE SUIT No.1461/2019
Raju Anandrao Sonawale
& 2 Ors. … Plaintiffs
Versus
M.C.G.M. & Anr. ... Defendants
Appearance :
Adv. Agnes for plaintiffs.
Mrs. Tondwalkar, Advocate for defendants.
CORAM : S. H. SALUNKHE,
JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 08/10/2022.
O R D E R
. The plaintiffs have taken out Notice of Motion under Order
XXXIX Rule1 of The Code of Civil Procedure for restraining the
defendant/Corporation or anybody through it by order of injunction
from dispossessing, removing or interfering with possession of the
plaintiff in respect of premises described in the plaint without following
due process of law.
2] It is contended that the plaintiff No.1 was residing in hut
situated at Milan Nagar, Shivsrushti, Kurla, Mumbai and plaintiffs No.2
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and 3 were residing in the huts situated at Bangalipura, Kane Nagar,
Mumbai for the last several years and were in use, occupation an d
possession of suit premises. The said premises of the plaintiffs were
acquired by the defendant/Corporation and the plaintiffs have been
alloted premises mentioned in cause title of the plaint. The plaintiffs
have vacated their old premises/huts and thereafter the defendant/
Corporation alloted suit premises to them. The original premises of the
plaintiffs have been demolished by the Corporation, however the
person, who claims to be the representative of M Ward of the
defendant, frequently visited suit premises and threatened the plaintiffs
and their family members to dispossess and vacate suit premises/or
demanded money to the plaintiffs if they do not want to visit their
premises. The Corporation has not given any notice or intimation to the
plaintiff. However, the person came to the suit premises on 27/5/2019
and started using force and threatened to dispossess all the plaintiffs
without following due process of law. Hence the plaintiffs filed the suit
and taken out Notice of Motion.
3] The defendant/Corporation opposed Notice of Motion
contending that the plaintiffs have filed this suit on the basis of forged
and fabricated documents. The plaintiffs are not project affected
persons. The number of persons are approaching this Court by filing suit
on the basis of forged and fabricated documents. It is further contended
that after receiving documents alongwith the plaint the officer of the
Corporation scrutinized and verified documents. The letter was sent to
office of Assistant Engineer, Maintenance, L Ward to submit report as to
allotment of suit structure to the plaintiffs as Project Affected Persons
(P.A.P.) Scheme. The concerned officer informed that allotment letter
has not been issued by Assistant Engineer, F North Ward. This shows
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that the plaintiffs prepared fake and fabricated documents and filed suit
and prayed for permanent equitable relief of injunction and, therefore,
the plaintiffs are not entitled for any relief.
4] Heard learned counsel for the parties. Perused record and
also written notes of arguments of the plaintiffs.
5] Points for determination alongwith findings thereon for the
reasons are as under :
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
6] The plaintiffs have taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 of the C.P.C. Plaintiffs
are seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a prima facie case necessitating
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protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hands.
7] Learned advocate for the plaintiffs submitted that the
plaintiffs are in lawful possession of their respective suit structures. It is
further argued that the plaintiffs were residing at Milan Nagar and
Bangalipura in their huts which were acquired by the Corporation and
in lieu of said premises the Corporation alloted suit structures to the
plaintiffs. It is further argued that the plaintiffs have prima facie proved
that the Corporation has alloted suit structures to the plaintiffs as P.A.P.
The plaintiffs are having electricity bill, Aadhaar Cards etc. at the
address of suit structure, therefore, interim injunction as prayed may be
granted.
8] On the other hand, learned advocate for the Corporation
submitted that suit is filed by the plaintiffs on the basis of fake and
fabricated documents. The plaintiffs have not come to the Court with
clean hands and not entitled for equitable relief of injunction. It is
further submitted that the Corporation has produced on record letter
dated 22/4/2022 which clearly shows that suit structure flat No.707 of
building No.13 has not been alloted to the plaintiff No.1 and flats
No.502 and 610 of building No.11 has not been alloted to plaintiffs
No.2 and 3. This clearly shows that the plaintiffs have fabricated fake
documents and occupied suit structure illegally. The plaintiffs are
trespassers and not entitled for any relief.
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9] Learned advocate for the Corporation relied on the
judgment of the Hon'ble Bombay High Court in Jayprakash Patru
Chouhan & Ors. V/s. Municipal Corporation of Greater Mumbai &
Anr. (Appeal From Order No.1186 of 2013) wherein the Hon'ble High
Court referring the case of Maria Margarida Sequeira Fernandes vs.
Erasmo Jack de Sequeira was pleased to observe that,
“The present suits by the Plaintiffs can very well be treated as recourse to
that due process of law. The Plaintiffs having failed to establish any
lawful authority to retain possession of the suit premises or any right to
hold on to such possession, the requirements of due process are clearly
satisfied in the present case so as to enable the State to evict the
Plaintiffs. Due process, as held by the Supreme Court, includes an
opportunity to the defendant to file pleadings including written
statement and documents before the court of law. It does not mean the
whole trial. Such due process of law is satisfied the moment rights of the
parties are adjudicated upon by a competent court. Whether the action
is for enforcement of a right (recovery of possession) or protection of a
right (injunction against dispossession), is not of much consequence. The
plaintiffs having approached a competent court of law seeking a
protective remedy, such as injunction, and having failed to set up a good
case, cannot be heard to say that due process of law must still be
operated before the other party can be allowed to enforce its rights by
recovering possession of disputed premises”.
10] It is case of the plaintiffs that they are in possession and
occupation of suit structures on the basis of allotment letter given by
the Corporation. The plaintiffs claimed that they are in possession of
suit structures as P.A.Ps. and suit structures are alloted by the
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defendant/Corporation to them in lieu of their original structures which
are acquired by the Corporation. However, the plaintiffs have neither
produced notices under Section 314 of The Mumbai Municipal
Corporation Act (the M.M.C. Act) issued by the Corporation, nor copy of
AnnexureII to show they are eligible for an alternate accommodation.
It is case of the plaintiffs that by letter dated 12/7/2016 suit structures
have been alloted to them by Assistant Engineer F Ward as P.A.Ps. To
counter blast this contention, the Corporation has produced on record
letters dated 22/4/2016 bearing No.l-vk-,y/1859 and dated
6/4/2022 bearing No.lvk@,e&iwoZ/09/llk@ekv by said letter Assistant
Engineer informed that alleged allotment letters relied by the plaintiffs
bearing letter No.l-vk-,y@lk-1440@ifj- fn-13&7&17 and letter No. l-vk-@
,e&iwoZ@08@l-lk-@ek-v- fn-06&04&2022 are not issued by the concerned
officer of the defendant/Corporation. The letter dated 22/4/2022 relied
by the defendant/Corporation have been executed by the public officer
in discharge of his legal duties. It is case of the plaintiffs that they are in
lawful possession and occupation of suit structures, however, they have
not produced on record document i.e. any notice to show that
structures at village Mankhurd has been acquired by the Corporation.
The plaintiffs have not produced AnnexureII showing that they are
eligible for alternate accommodation. In such circumstances, the
documents produced by the plaintiffs appear to be doubtful. The
plaintiffs have not established that they are the P.A.Ps. and suit
structures have been alloted to them as permanent alternate
accommodations. The plaintiffs have produced on record electricity bills
in support of their contentions that they are in possession of suit
structures. However, electricity bills produced by the plaintiffs are not
sufficient to show their lawful possession. The injunction as prayed
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cannot be granted unless prima facie lawful possession has been
established by the party seeking relief of injunction.
11] There is no document showing lawful possession of the
plaintiffs over suit structures. The plaintiffs are claiming possession over
suit structures, however the plaintiffs have not proved lawful
possession. There is no legal evidence on record to show that the
plaintiffs are P.A.Ps. and suit structures have been alloted to them as
P.A.Ps. The plaintiffs have not shown lawful possession over suit
structures. In such circumstances, the plaintiffs can be termed as
trespassers and it is well settled that injunction cannot be granted
against true owners and in favour of trespassers.
12] It is contended by the plaintiffs that the defendant/
Corporation be restrained from dispossessing them without following
due process of law. Hon'ble Bombay High Court in Jayprakash Patru
Chouhan & Ors. V/s. Municipal Corporation of Greater Mumbai & Anr.
(supra) referred the judgment of the Hon'ble Apex Court in Maria
Margarida Sequeira Fernandes vs. Erasmo Jack de Sequeira in
which it is held that due process of law includes an opportunity to the
party to file pleadings and documents before the Court and it does not
mean whole trial. Due process of law as held by the Hon'ble Supreme
Court includes an opportunity of pleading and such due process is
satisfied the moment rights the parties are adjudicated upon by a
competent Court. The plaintiffs have approached this Court with prayer
of injunction restraining defendant from dispossessing them without
following due process of law. However, the plaintiffs have prima facie
failed to prove that they are having lawful possession over suit structure
or they are entitled for alternate accommodation as P.A.Ps. In such
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circumstances and in view of judgment of the Hon'ble Supreme Court in
Maria Margarida Sequeira Fernandes vs. Erasmo Jack de Sequeira, I
hold that the plaintiffs have not made out prima facie. Balance of
convenience does not tilt in their favour. Accordingly, I answer points
No.1 to 3 in the negative and in answer to point No.4 following order is
passed :
O R D E R
Notice of Motion No.2276/2019 is dismissed.
Date : 08/10/2022. ( S. H. SALUNKHE )
Judge City Civil Court,
Court Room No.4,
Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
18/10/2022 01:00 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 08/10/2022
ORDER Typed on 15/10/2022
ORDER checked & signed by P.O on 18/10/2022
ORDER uploaded on 18/10/2022
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