Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2002-2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2002 OF 2018
IN
L.C. SUIT NO.2130 OF 2018
(CNR NO. MHCC01-00-6556
Mohd Hashim Abdul Gaffar Khan. … Plaintiff
Vs.
1. The Municipal Corporation of Greater
Mumbai & Anr..
… Defendants
Appearances:
Adv. Mr. Mohit Jadhav for the plaintiff
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
CITY CIVIL COURT, GR.MUMBAI
(C.R.NO.12)
DATE: JANUARY 22nd, 2021
ORAL ORDER
The plaintiff has taken out this notice of motion under
Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC)
against defendants.
2. Heard learned advocate for the plaintiff. Perused the notice
of motion, an affidavit filed in support thereof and documents.
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NM No.2002-2018
3. The plaintiff claims to be in possession of Shop No.11
admeasuring about 175.77 sq. ft. (carpet area) including mezzanine
floor admeasuring about 154.46 sq. ft. situated at 54/56, Janjira
Building, Vasikhan Marg, Surti Mohalla, Mumbai-400008 (hereinafter
referred to as “Shop No.11).
4. The plaintiff has contended that the construction of Shop
No.11 is legal. From the copy of the sanctioned plan (Exh. A), it
prima
facie appears that the construction of Shop No.11 is legal.
5. It is to be highlighted that defendants have neither filed a
reply to the notice of motion nor any document to refute plaintiff’s
contentions.
6. From the record, it seems that defendant No.1 had issued a
notice dated 13.03.2015 (Exh. B) to the plaintiff calling upon him to
remove the mezzanine floor of Shop No.11. It seems that the plaintiff
has given a reply to that notice. However, no order has been passed by
defendant No.1.
7. The plaintiff has alleged that one of the employees of
defendant No.1 had threatened him to demolish Shop No.11.
8. As stated
supra, the sanctioned plan (Exh. A)
prima facie
shows that the construction of shop No.11 is legal. If the disputed
structure of Shop No.11 is demolished as apprehended by the plaintiff,
the very purpose of filing of the present suit would be frustrated, and
the plaintiff would thereby suffer irreparable loss. Under these
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NM No.2002-2018
circumstances, it is necessary to restrain defendants from demolishing
the disputed structure of Shop No.11 until the final decision of the suit.
6. The plaintiff has, thus, made out a
prima facie case. The
balance of convenience lies in his favour. So, I hold that the plaintiff is
entitled to the relief of temporary injunction. Consequently, the notice
of motion deserves to be allowed. Hence, the order.
ORDER
1. Notice of Motion No.2002 of 2018 is made absolute
in terms of prayer clauses (a) and (b)
2. Costs shall be costs in the cause.
3. Notice of Motion No.2002 of 2018 is accordingly
disposed of.
R. S. PAVASKAR
Judge,
Date: 22/01/2021 City Civil Court, Gr. Bombay
Dictated on : 22/01/2021
Transcribed on : 22/01/2021
HHJ signed on :
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NM No.2002-2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
30.01.2021 12.55 p.m. Mayuresh P. Tathe
Name of the Judge (With Court
Room No.)
HHJ Shri. R.S. PAVASKAR (CR 12)
Date of Pronouncement of
JUDGEMENT /ORDER
22.01.2021
JUDGEMENT /ORDER signed by
P.O. on
22.01.2021
JUDGEMENT /ORDER uploaded
on
30.01.2021
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