Final Order 3

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1950 OF 2018
IN
STAMP NO. 6984 OF 2018
Krishnabihari S/o Baijnath Prasad ].. Plaintiff.
V/s.
1. M. M. R. D. A and others. ]..Defendants.
Advocate Mr. Ashok M. Saraogi for the plaintiff.
Advocate Mrs. Subhedar for defendant No.1/MMRDA
Advocate Mrs. Chandramore for defendant No.2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 2nd MAY, 2022
ORDER
The suit is instituted for the relief of declaration and
perpetual injunction. The suit property is Shop No. 25 situated at
Nisarg Co-operative Society, Building No.19 C, MMRDA Colony, New
Gautam Nagar, Govandi, Mumbai 400043 and it is hereinafter referred
as suit property for the sake of convenience.
2. It is the case of plaintiff that he is in lawful use, occupation
and possession of the suit property. The suit property was allotted to
plaintiff on 19/12/2005. All the occupants of the building formed the
Co-operative Housing Society and plaintiff is member of the same.
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3. Plaintiff has further stated that there are many shops
situated on the ground floor of that building. The windows of all the
upper floors located upon the shops are opening towards the shop
occupied by the plaintiff and other shop premises. Plaintiff has annexed
photograph of the situation on the spot to the plaint. It is further stated
that, it is a common practice of the flat owners that they throw all type
of garbage and waste material through the window in front of the shop
of plaintiff and other shop owners. As plaintiff felt it impossible to
conduct the business from the suit shop for the above reason, he
requested MMRDA authorities to allot any other shop to plaintiff by
letter dated 27/02/2017. Plaintiff has made a common complaint to
the concerned society vide letter dated 16/03/2017.
4. As the business of plaintiff was affected due to the garbage,
he approached the society for permission of necessary repairs by an
application dated 21/04/2017. It is further stated that the shop of the
plaintiff is close to the toilets and the water leaking out from the said
toilets comes towards the shop of plaintiff for which the plaintiff raised
the complaint as per the letter dated 21/04/2017. However, society did
not take any steps for the resolution of the problem.
5. Plaintiff has further stated that in the above circumstances,
he and other shop owners were left with the only option to erect a
temporary shed of three feet in size upon the said shop premises.
Plaintiff is ready to take all the necessary steps for regularization of the
said shed, if necessary. However, the defendants are bent upon
demolishing the said shed of plaintiff. Defendants have not served any
notice till date as such.
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6. The plaintiff has further stated that the officers of the
defendants attended the premises of the plaintiff on 09/04/2018 with
an intention to demolish the said shed. They threatened all the
shopkeepers that they shall then visit to the premises of the plaintiff
along with necessary police force to demolish the same. The action of
the officers of the defendants is illegal and arbitrary as no notice is
issued to plaintiff.
7. For all the above reasons plaintiff has prayed for the decree
of declaration and perpetual injunction. Plaintiff has filed Notice of
Motion and has prayed for temporary injunction against the defendants
for preventing them from taking any action of demolition and in respect
of temporary shed consisting of tin sheets as reflected in the
photographs and located in front of the suit property. Plaintiff has filed
affidavit in support of his Notice of Motion and has confirmed the
contents of the plaint.
8. My learned predecessor proceeded to reject the ad-interim
relief. The order was challenged before the Hon’ble High Court by
Appeal from Order No. 510 of 2018. Her ladyship was pleased to
dispose of the appeal with directions to this court to decide the Notice
of Motion within the period of one month from 04/04/2022.
9. Defendants No. 1 and 2 have not filed reply.
10. I have heard learned advocate for plaintiff, learned
advocate for defendant No. 1 and learned advocate for defendant No. 2
at length. Considering the pleadings, documents on record and
submissions of all learned advocates appearing in the matter, following
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points arise for my determination and my findings to them are as stated
below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff has proved his
prima
facie case?
In the
Negative
2 Whether plaintiff has proved that he will
suffer irreparable loss if the Notice of
Motion is rejected ?
In the
Negative
3 In whose favour does the balance of
convenience lie ?
In favour of the
Defendants
4 What order? As per final order
R E A S O N S
AS TO POINT No.1 :
11. Before going to the merits of the matter, it is necessary to
state the admitted facts. It is admitted that plaintiff is in possession of a
shop premises. It is admitted that there are residential units on the
upper floors of the said building. The photographs produced on record
by the plaintiff at page Nos. 18 and 19 of the compilation of the plaint
show that the open space in front of all the shops next to the shop of
plaintiff is covered with a permanent shed like structure. The shop of
plaintiff has no such protection.
12. Learned advocate for plaintiff submitted that the residents
of upper floors of the said building are throwing garbage and waste
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water from the windows in front of the shop of plaintiff which is
causing inconvenience to the customers who are coming to the shop of
plaintiff. He further submitted that the shed erected in front of the shop
to the extent of 3 feet will not cause inconvenience to any person, but
will save the customers of plaintiff from the garbage and waste water.
13. Plaintiff has filed copy of an application dated 27/02/2017
on page No. 21 of the plaint compilation seeking permission to the
society for erection of shed in front of his shop. Similar application was
filed again on 16/03/2017. Plaintiff filed an application for repairing
the shop to the society on 21/04/2017. In paragraph 12 of the plaint
plaintiff has stated that the temporary shed was installed by the plaintiff
and it is in existence.
14. In the light of above circumstances, if we peruse the relief
claimed by the plaintiff in the plaint as well as the present Notice of
Motion, it appears that he is seeking to restrain the defendants from
demolishing the shed. For seeking this relief, plaintiff has to
prima facie
show the existence of shed on the date of institution of the suit.
However, the photographs which are produced on record at page Nos.
18 and 19 do not show any existence of shed. In fact in photograph at
page No. 19 some signs are appearing which show that something was
removed from the wall.
15. Learned advocate for the defendant No. 1 submitted that as
there was no shade in existence at the time of institution of the suit,
plaintiff is not entitled to any relief. On the other hand, plaintiff will
take disadvantage of the relief if granted in the present suit and will
construct a shed which is not permitted by law.
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16. Her Hon’ble ladyship in paragraph No.4 of the order dated
04/04/2022 has observed that,
4 In the wake of the statement made by the learned
counsel for the MMRDA and on perusal of the
documents produced on record by the appellant,
establishing his ownership and possession over shop
no.25, and since it is informed that the tin-shed which
was erected was to avoid the nuisance and since it stand
as on today, by directing the City Civil Court, Mumbai to
decide the Notice of Motion No.1905/2018, the Appeal
deserve a dismissal by continuing the tin-shed, if at all it
is standing as on date.
The City Civil Court shall dispose off the Notice of
Motion within a period of one month from today.
In view of the dismissal of AO, IA No.1071/2021 and CA
No.677/2018 do not survive and are disposed off
accordingly.
17. Thus, Her Hon’ble ladyship has directed to continue the tin
shed, if at all it is standing as on date. Plaintiff has not produced
anything on record except the photographs to show that the tin shed
was standing on the spot on the date of institution of the suit. The
photographs which are produced on record do not show existence of
such shed.
18. Defendant No. 1 has filed on record a letter issued by the
housing society for demolition of shed in the year 2017. The said letter
is not in respect of the alleged shed of plaintiff, but it is in respect of
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other sheds also. Similar letter was filed on 24/08/2017 also.
Accordingly, the Competent Authority proposed demolition of all the
shades on 04/04/2018. Notice to that effect was issued to all the shop
owners on 03/04/2018. Defendant No.1 has produced a copy of
Punchnama on record dated 04/04/2018 which shows that 10 to 12
shades were demolished in the police protection. The photographs
produced on record are black-and-white photographs and do not make
picture clear. However, the second photograph on page No. 9 appears
to be that of the shop of plaintiff and there is no shed at all.
19. These documents make it clear that the action of
demolition of shed was taken on 04/04/2018. The present suit came to
be instituted on 22/05/2018. Therefore, it is clear that as on the date
of institution of the suit there was no shade in existence at all. As
plaintiff has failed to
prima facie prove the existence of shed, I answer
point No. 1 in the negative.
AS TO POINT NOS.2 AND 3:-
20. As I have already observed, there was no shed in existence
as on the date of institution of the suit, there is no question of plaintiff
suffering any irreparable loss in case the Notice of Motion is dismissed.
Plaintiff may seek necessary permissions from the Competent Authority
and adopt due process of law for the construction of the shed in front of
his shop, if he feels it necessary. The balance of convenience lies in
favour of defendants. Accordingly, I answer point No. 2 in the negative,
point No. 3 in favour of defendants and in answer to point No. 4, I
proceed to pass following order.
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O R D E R
1. Notice of Motion No.1950 of 2018 is dismissed
with costs.
2. Notice of Motion No.1950 of 2018 is disposed off
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 02.05.2022 Gr.Mumbai.
Dictated on: 02.05.2022
Typed on : 02.05.2022
Signed on : 05.05.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
05.05.2022 AT 01.00 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
No.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of Pronouncement of
Judgment/Order
02.05.2022
Judgment/Order signed by P.O. on 05.05.2022
Judgment/Order uploaded on 05.05.2022
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