Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.2396/2019 ..1.. InS.C.Suit No.1225/2009
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 2396 OF 2019
IN
S.C. SUIT NO. 1225 OF 2009
CNR NO : MHCC010066232019
1. Bhanu Jamnadas Kapadia & Ors., ...Plaintiffs
Versus
Tapan Sunil Kumar Aich, ...Defendant
Appearance :
Mr. Rahul C. Mestry, Advocate for the Plaintiffs.
Mr. Surendra Yadav, Advocate for defendant.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 1ST APRIL, 2021.
ORAL ORDER
By this notice of motion, the plaintiff is seeking direction to
defendant to remove iron grill collapsible door put up in the open
space Otla, to restrain the defendant from obstructing the
Licensed electrical contractor to carry out repairs to the electrical
board and main electrical switch situated at the rear end of the
open space Otla and to restrain the defendant from obstructing
ingress and egress of the landlords and other occupants in the
open space Otla and to struck off the defence of the defendant.
2. In brief, the plaintiffs contend that the defendant has
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unlawfully dispossessed the plaintiff from the suit premises i.e.
the room under the stair case of Ghia Building. Pending the
present matter defendant has illegally put up a collapsible iron
grill door in the open space Otla of the suit building, which is
obstructing the way of all the occupants. The open space Otla
leads to the Electrical Meter Box of entire building. Said open
space Otla is in front of the suit premises. The Electrical Meters
and electric board are in urgent need of repair or replacement
else it may lead to a grave mishap. The defendant has kept the
iron grill door locked at all times. He does not handover the keys.
The BEST Authorities deputed a person to visit the Electrical
Meters and to inspect the work needed to be carried out.
However, they could not do so as defendant obstructed them. In
absence of access, the BEST personnel could not do anything.
The articles kept by the defendant are flammable items and are
posing a risk to the entire building and to the occupants. It can
lead to outbreak of fire. The defendant is not cooperating for
repairs of the electric meter board. The BEST Authorities have
sent notices to the plaintiffs calling upon them to carry out
repairs of the electric board meter urgently or that they would
terminate the electricity supply. The defendant has told the BEST
Authority to shift the entire meter board away from the place
where it is currently installed. The defendant has no right to
inform so and it is the prerogative to plaintiffs. The defendant is
an illegal occupant whose claim of tenancy is rejected by the
Small Causes Court, Mumbai. The defendant has admitted illegal
installation of collapsible iron door in his cross examination. He
has also admitted its removal by BMC and reinstallation by him.
The electrical board is now danger to the building unless
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repaired. The defendant has willingly disobeyed the local
governing authorities requests and directions.
3. The defendant has opposed the notice of motion on the
ground that, the prayers in the notice of motion are not in
consonance with the subject matter of the suit. He has not done
anything wrong. Plaintiff No. 1 has admitted that, deceased
Jamnadas Kapadia has left Will which is probated and the
administration of property is granted to Purushottam Kapadia
and Subhash Padamsi. The plaintiffs are not the executors of the
Will. The defendant has not illegally put collapsible iron grill
door as alleged. It is in existence since his deceased father was
occupying the suit premises. One has to enter into premises in
his occupation to reach the electric meter box. Such electric
meter box is not old and does not need urgent repair or
replacement. He never denied entry to anyone to approach said
meter box. The Electrical Contractor was not sure how to execute
the work. He did not inform the duration of time to carry out the
work. No intimation was given to the defendant. The landlord
has not done civil work and therefore notices were given to the
tenants of the building. All tenants have shown readiness but
plaintiff No. 1 is threatening other tenants. In past also
defendant was willing for repairs or replacement of electric
meters but others did not cooperate. He had requested BEST to
shift meter cabin from his premises. The BEST has replied him to
fulfill the requirement as per the procedure requiring NOC from
landlord and occupants. He is not landlord or owner and so
could not fulfill requirements by BEST. In the name of repairs
the landlords are trying to install new meters and so defendant
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has objected the same by writing the letter to BEST. On
05.09.2013 after he left suit premises someone has forcefully
installed new meter in the electric cabin which is informed to
BEST. One Gyanchand Shukla and Mr. Sanjay Dudhade have
fixed unauthorized wooden box with the help of plaintiff and
trying to install electric meters. The defendant has filed the
complaint with BMC and such unauthorized boxes were removed.
He has informed BEST not to provide meters to those people. He
has replied the notice dated 19.09.2018 pasted by BEST on the
premises.
4. Perused. Heard.
5. Perusal of plaint is necessary in order to see whether the
notice of motion can be considered by this Court. Bare perusal of
plaint reveals that, the defendant has already filed RAD Suit No.
1888/2008 seeking declaration of his tenancy in respect of the
suit premises i.e. a room on the ground floor and the open space
in front of it. Likewise, the plaintiffs have also filed L.E. & C. Suit
No. 58/74 of 2009 before the Small Causes Court, Bombay,
seeking a decree for possession of the portion of the Otla
occupied by the defendant.
6. The present suit is seeking recovery of possession of a room
under the stair case on the ground floor of the building claiming
that, the plaintiffs are illegally dispossessed by the defendant
from said room. Thus, present suit is a suit for recovery of
possession under Section 6 of Specific Relief Act in respect of a
room on the ground floor. Thus, perusal of the plaint reveals
that, it has nothing to do with the tenancy rights of the defendant
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and the capacity of the plaintiffs as such aspects are absolutely
irrelevant in a suit under Section 6 of the Specific Relief Act.
Consequently, the acts of the defendant in respect of open space,
closing open space by installing collapsible iron grill door and
obstructing access of others in said open space as well as to the
electric meter board etc. are all extraneous to present suit.
Admittedly, the Otla and open space is subject matter of the suit
before the Small Causes Court, where the plaintiff can approach
and seek appropriate relief in respect of the subject matters of
those suits. In my view, therefore, when the present suit is only in
respect of the room under the stair case, the relief sought by the
plaintiff in respect of other premises or open space, which are not
the subject matter of the present suit, cannot be granted by this
court. In view of this, on this ground itself the notice of motion is
not maintainable before this Court.
7. Even otherwise perusal of the annexures to the notice of
motion reveal that, the dispute about the repairs of said electric
meters and electric meter board is going on since 2016. If there
was really such urgency for the plaintiffs, they should have
moved the Court in the year 2016 itself. However, for the
reasons it is known to them, the plaintiffs have waited till 2019
and have moved the notice of motion belatedly. Thus, they are
guilty of delay and latches.
8. Considering above discussion, I hold that since the subject
matter of present notice of motion is absolutely no relevance to
subject matter of the suit, no case is made out by the plaintiffs to
grant any relief by this Court in respect of said subject matter.
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Consequently, I hold that, the notice of motion cannot be
allowed. Hence, following order:
ORDER
Notice of Motion No. 2396/2019 is dismissed
with costs.
(AJIT N. MARE)
Judge,
Date : 01.04.2021 City Civil Court, Gr. Mumbai.
Dictated On : 01.04.2021
Transcribed on : 03.04.2021
HHJ Signed on : 05.04.2021
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Notice of Motion No.2396/2019 ..7.. InS.C.Suit No.1225/2009
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
05.04.2021 4.56 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 01.04.2021
Order signed by P. O. on 05.04.2021
Order uploaded on 05.04.2021
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