Order 1

Order Details: Notice of Motion
Pdf Text: Notice Of Motion 1919/2018 ..1.. In Suit No.1571/2015
CNR NO.MHCC010063262018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1919 OF 2018
IN
L.C. SUIT NO. 1571 OF 2015
Mr. Thomas Augustin Antao,
Aged : 72 Years, Occ. : ,
Residing At : M/s. Thoma Egg Centre,
Shop No. 4, Navpada Fish Market,
Kurla (West), Mumbai 400 070. ...Plaintiff
Versus
The Municipal Corporation of
Gr. Mumbai,
Having their Head Officer At :
Mahapalika Bhavan,
Mahapalika Marg,
Mumbai 400 001. ...Defendants
Appearance :
Mr. P. F. Singh, Advocate for Plaintiff.
Ms. Mhatre, Advocate for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI A. N. MARE (C.R.No.11)
DATE : 7th OCTOBER, 2019.
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Notice Of Motion 1919/2018 ..2.. In Suit No.1571/2015
O R A L O R D E R
1. By this notice of motion the Plaintiff has sought direction to
defendant to consider plaintiff's representation dated 26.09.2017 and
pass fresh speaking order, a temporary injunction to restrain defendant
from further enforcing impugned notice issued under Section 351 of
B.M.C. Act and the impugned order passed in its pursuance. The interim
relief is also sought to allow the plaintiff to reconstruct demolished
portion of suit premises at plaintiff's costs.
2. In brief plaintiff's case is that, the Notice of Motion No.
78/2016 was taken out seeking injunction against defendant to restrain
it from demolishing the suit premises. This Court was pleased to direct
the plaintiff to approach defendant within 7 days with the relevant
documents and defendant was directed to consider those and pass fresh
order on merits. The plaintiff has accordingly vide letter dated
20.09.2017 submitted documents to defendant. The Deputy Collector
vide public notice dated 20.09.2017 has called upon the hutment
dwellers to keep their documents ready pertaining to their respective
premises. The documents submitted by plaintiff with the defendant with
letter dated 26.09.2017 are vital to decide the issue of toleration of the
suit premises as per defendant's policy and therefore the direction is
required to the defendant to consider those documents and pass fresh
order. Meanwhile the injunction is also required to restrain defendant
from further enforcing impugned notice and impugned order. Likewise
it is necessary to allow the plaintiff to reconstruct demolished portion of
the suit premises at the plaintiff's costs.
3. Defendant has opposed the Notice of Motion denying the
correctness of the contentions raised by the plaintiff. According to it the
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Notice Of Motion 1919/2018 ..3.. In Suit No.1571/2015
plaintiff has not produced any census certificate or photopass to prove
that the suit premises is in slum cluster. The plaintiff did not produce
approved plan as well as document to show that the suit premises is
assessed to Municipal Taxes prior to 01.04.1962. The census receipt is
not in respect of the suit premises. The documents produced by the
plaintiff are denied. This Court has rejected adinterim relief in the year
2015 and appeal from order against said order is also dismissed by the
Hon'ble High Court. On 08.01.2016 the suit premises was demolished.
The defendant has already followed due process of law. The plaintiff has
failed to prove that the suit premises is tolerated premises. The
impugned notice and order are already implemented and executed.
Therefore, no question arises to direct the defendant to pass fresh order.
Injunction as sought is also misconceived. The prayer for reconstruction
is beyond the jurisdiction of this Court. The notice of motion is not
maintainable.
4. Following points arise for determination against which
findings are recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out a
primafacie case?
In the negative.
2. Whether the balance of convenience lies
in plaintiff’s favour?
In the negative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as sought
is refused?
In the negative.
4. What Order ? Notice of motion is
dismissed with
costs.
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Notice Of Motion 1919/2018 ..4.. In Suit No.1571/2015
REASONS
AS TO POINT NOS.1 TO 4.
5. In order to appreciate the contention of the plaintiff as well
as defendant, in this notice of motion, it is necessary to look into the
history of this case.
6. The proceedings in this case indicate that plaintiff had
sought, vide draft notice of motion, adinterim relief seeking injunction
against defendant to restrain it from demolishing the suit premises in
pursuance to impugned notice and order. The said injunction was
refused by this Court vide an order dated 28.07.2015. The plaintiff
preferred appeal from order 1008/2015. It was disposed off by the
Hon'ble High Court by an order dated 13.08.2015 directing the parties to
maintain statusquo in respect of the suit premises and expedited hearing
of the notice of motion. The Notice of Motion No. 3038/2015 was heard
by this Court and was dismissed by an order dated 15.12.2015. The
plaintiff again preferred appeal from order No. 10/2016 before the
Hon'ble High Court. It came to the dismissed on 23.12.2015 observing
that the plaintiff has failed to make out the primafacie case as well as
the allegation of discrimination was unwarranted.
7. The plaintiff thereafter preferred the chamber summons No.
20/2016 seeking amendment to plead two documents. First one is the
census receipt and second one is the letter dated 08.10.2007 by
defendant to the plaintiff calling upon him to submit the documents
proving existence of the suit premises prior to 01.01.1995. Said chamber
summons is allowed by this Court on 12.01.2016. Lateron plaintiff
moved another notice of motion No. 78/2016 in which adinterim relief
was sought but is refused by the Court on 22.01.2016. Plaintiff later on
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Notice Of Motion 1919/2018 ..5.. In Suit No.1571/2015
was sought but is refused by the Court on 22.01.2016. Plaintiff later on
took out another chamber summons No. 610/2016 seeking amendment
in the plaint. The affidavit in support of said chamber summons alleges
partial demolition of the suit premises by defendant on 08.01.2016 and
complete demolition of suit premises on 22.01.2016. The prayer clause
also sought to be amended seeking the relief to maintain statusquo ante.
Chamber Summons was allowed on 25.07.2016 and amendment in the
plaint is carried out on 30.04.2016.
8. The plaintiff took out another Notice of Motion No. 78/2016
which was disposed off by this Court on 22.01.2016 granting liberty to
the plaintiff to oppose defendant within 7 days with whatever documents
he intends to produce. It was also mentioned that plaintiff's failure to
abide by the time prescribed will disentitle plaintiff from any relief from
the defendant. Thereafter the plaintiff has moved defendant vide a letter
dated 26.09.2017 with certain documents. Copy of such application is
filed at serial No. 6 with list of document dated 16.09.2019. In said
representation dated 26.09.2017, plaintiff has requested defendant to
provide for permanent alternate accommodation or to allow the plaintiff
to restore the suit premises.
9. In the background of above facts, present notice of motion
needs to be considered.
10. The Advocate for plaintiff submitted that the plaintiff is not
pressing prayer clause (b) of present Notice of Motion and it be
considered only in respect of prayer clause (a).
11. The prayer clause (a) has two prayers in it. The first one is a
direction to defendant to consider representation dated 26.09.2017. In
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Notice Of Motion 1919/2018 ..6.. In Suit No.1571/2015
view of the order passed by this Court in Notice of Motion No. 78/2016
is that this Court did not direct the defendant to pass any order if the
plaintiff submits the documents. Prayer clause (a) in Notice of Motion
No. 78/2016 was seeking such directions from this Court. Said prayer
was not granted by this Court. In other words it is stands refused. Once
such a direction sought by the plaintiff was rejected by this Court, the
plaintiff can not move another Notice of Motion for same relief
afterwards in absence of change in circumstances. The principals of
resjudicata will apply if an interim relief is rejected by the Court and is
sought again in the same proceeding. Thus, the plaintiff is not entitled
to this relief.
12. The plaintiff himself has come with case that the suit
premises is completely demolished by the defendant. This reveals that
impugned notice and impugned order both are executed and
implemented by defendant. Consequently, the second relief sought in
prayer clause (a) to restrain defendant from implementing impugned
notice and order does not arise.
13. Even otherwise since the suit premises is demolished, the
relief of injunction as sought has become infructuous. If the plaintiff
claims that some structure exists now, even after complete demolition of
suit premises, then certainly it is not the suit premises that was originally
existing. Therefore, the injunction sought in respect of suit premises
which was originally existing is misconceived.
14. Instead of taking out repeated interim applications if the
plaintiff's goes for trial these issues can be finally taken up and decided
by this Court which include the issue relating to existence of suit
premises in slum area and it's reconstruction.
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Notice Of Motion 1919/2018 ..7.. In Suit No.1571/2015
15. In view of above discussion I hold that the Notice of Motion
is meritless. Advocate for plaintiff submitted that various documents
produced by the plaintiff with list dated 16.09.2019 as well as the
photographs tendered reveal that some structure exists and it lies in the
slum area. Therefore, the relief as sought needs to be granted.
16. Such submission is not acceptable in view of the discussion
in foregoing para's. Consequently, I pass following order.
ORDER
1. Notice of Motion No.1919 of 2018 is dismissed.
2. Costs in cause.
(A. N. MARE)
Judge,
07.10.2019 City Civil Court, Mumbai.
Dictated On : 07.10.2019
Transcribed on : 07.10.2019
HHJ Signed on : 11.10.2019
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Notice Of Motion 1919/2018 ..8.. In Suit No.1571/2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
17.10.2019 4.55 p.m. Mahendrasing D. Patil (H.G. Steno)
Name of the Judge H.H.J. SHRI. A. N. MARE
(Court Room No. 11)
Date of pronouncement of Order 07.10.2019
Order signed by P.O. on 11.10.2019
Order uploaded on 17.10.2019
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