Order 1

Order Details: Notice of Motion
Pdf Text: 1 DRAFT NM IN SU. 164319
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
DRAFT NOTICE OF MOTION
IN
SUIT NO.1643 OF 2019
1. Victor Sebastian D'souza & Ors. ]....Plaintiffs.
Versus
1. Williams Marshall D'mello & Anr. ]... Defendants
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 5th July, 2019.
Mr. S.K. Dubey, Advocate for plaintiffs.
Mr. Giri, Advocate for Defendant/MCGM.
O R D E R
1. Perused. Heard Advocate for plaintiffs as well as defendants.
2. Plaintiffs have sought adinterim injunction in the form to stay
the effect and operation of Judgment and decree dated 27.9.2013
against the premises occupied by them i.e. rooms No.1 to 4 on the
ground floor of House No.84, Kurla (West), Mumbai. Adinterim
injunction is also sought to restrain the defendant No.2 from enforcing
the Notice dated 5.3.2019 against the aforesaid premises.
4. The Advocate for plaintiffs submitted that, the plaintiffs being
occupiers of rooms No.1 to 4 in the capacity of purchasers are not
bound by the decree passed in Suit No.4705 of 1998 as they were not
the parties to the suit. They have independent rights which are required
to be adjudicated. Till then the decree in Suit No.4705 of 1998 cannot
be executed. If the effect and operation of said decree is not stayed,
-- 1 of 5 --
2 DRAFT NM IN SU. 164319
defendant No.2 Corporation will demolish the plaintiffs' premises.
Therefore, according to adinterim injunction is necessary. He further
submitted that the present suit seeking declaration, that the decree in
Suit No.4705 of 1998 is not binding on the plaintiffs, is maintainable.
He relied upon
(a) N. Krishnath Setty Vs. Gopalakrishna & Ors., AIR 1974
Supreme Court 1911,
(b) Nirmala Industries Vs. Srinivasa Perumal Financing, (1987)2
ML.J 3.
5. He further submitted that the decree to direct the defendant
Corporation to demolish the suit premises could not have been passed
as there was serious dispute as to the construction was illegal or not.
He relied upon Abdul Rehman Siddique Vs. Ahmed Mia Gulam
Mohuddin Ahmedji, 1996(4) ALL MR 303.
6. The advocate for defendant No.1 submitted that plaintiffs can not
claim any independent rights. They have already moved the Executing
Court and were unsuccessful in obtaining the stay to the decree. They
have challenged said order of the Executing Court, refusing to stay the
effect of the decree, before the Hon'ble Bombay High Court but were
unsuccessful there also. In such circumstances, adinterim injunction as
sought cannot be granted.
7. Advocate for defendant Corporation submitted that, the
defendant Corporation has already acted upon the notice and has
demolished to the suit premises as shown in the photographs.
Therefore, according to her adinterim injunction cannot be granted as
the Notice is already acted upon.
-- 2 of 5 --
3 DRAFT NM IN SU. 164319
8. Perusal of the plaint and annexures reveals that plaintiffs No.1 to
4 have allegedly purchased the room from one Manohar Barkya Raut.
There is nothing on record to indicate that how Mr. Raut is concerned
with the premises purchased by the plaintiffs. The Judgment in Suit
No.4705 of 1998 reveals that the Court had concluded therein that the
construction, ordered to be demolished, is a reconstructed building and
not the old house which is assessed prior to the datum line.
9. The plaintiffs have also moved the Executing Court by moving a
Notice of Motion. The copy of Notice of Motion reveals that the
plaintiffs have requested the Executing Court to adjudicate and
determine their claim under Order 21. The stay was also sought to the
decree. A copy of order dated 12.4.2019 passed by the Executing Court
reveals that it has rejected the prayer to stay the effect and operation of
the decree. The Order of Hon'ble Bombay High Court in Appeal From
Order (Stamp) No.12716 of 2019 reveals that the Order of Executing
Court is upheld by the Hon'ble Bombay High Court observing that there
is nothing on record to indicate that the action on the part of the
Corporation in Execution of the Decree is unwarranted.
10. After being unsuccessful to obtain the stay from the Executing
Court and from the Hon'ble Bombay High Court now plaintiffs have
filed the present suit. The fact remains that, the Notice of Motion
seeking adjudication of their rights as purchaser of the suit premises is
still pending before the Executing Court. In such circumstances,
maintainability of separate suit is questionable in the light of Provisions
of Order 21 Rule 101 of CPC.
11. The plaintiffs have also suppressed the material facts from this
Court regarding action of demolition already taken by the defendant
Corporation on 12.6.2019 and 19.6.2019. The photographs produced
-- 3 of 5 --
4 DRAFT NM IN SU. 164319
by defendant corporation reveal that the ground floor premises are also
partly demolished by it.
12. The contention regarding legality of the decree directing
demolition of premises by way of mandatory injunction, is merit less as
in Abdul Rehman's case the Hon'ble Bombay High Court has observed
that at interim stage such directions cannot be given.
13. I have gone through Nirmala Industries's case as well as N.
Krishnaih Setty's case. The facts and circumstances, in the authorities
and in the present cases are quiet different. Hence, with respect, I hold
that those are not applicable to the present case.
14. To sum up, the plaintiffs have failed to establish a prima facie
case to stay the effect and operation of the decree by this Court more
particularly in the light of their failure to obtain such relief from the
Executing Court and the Hon'ble Bombay High Court. They have also
suppressed the material fact of action of demolition already taken by
the defendant Corporation. On this court also they are guilty of playing
fraud upon the Court. Consequently, they are not entitled to the ad
interim injunction as sought. Hence the Order:
ORDER
1. Adinterim injunction sought in terms of prayer Clause (a) & (b)
of draft Notice of Motion is refused.
2. Leave is granted to register the Notice of Motion.
3. Defendants to file reply to the Notice of Motion.
4. Authenticated copy of Roznama be given to the parties.
Sd/
(A.N. MARE)
Judge,
05/07/2019 City Civil Court, Mumbai.
Dictated On : 05.07.2019
Transcribed on : 05.07.2019
HHJ Signed on : 06.07.2019
-- 4 of 5 --
5 DRAFT NM IN SU. 164319
“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
06.07.2019 04.15 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
05.07.2019
JUDGEMENT /ORDER signed by
P.O. on
06.07.2019
JUDGEMENT /ORDER uploaded
on
06.07.2019
-- 5 of 5 --