Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM NO.206618 in Suit no.251116
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 2066 OF 2018
in
L.C. SUIT NO.2511 OF 2016
CNR No. : MHCC010067102018
Mr. Noor Khan S/o. Gaffar Khan ]...Plaintiff.
Versus
Municipal Corporation of Greater Mumbai ]..Defendant.
Advocate Mr. R. L. Singh for the Plaintiff.
Advocate Ms.Patil for defendant.
CORAM : M.S. Deshpande, Judge
(Court Room no.5)
DATED : 28th June, 2018.
O R A L O R D E R
1. After filing affidavit of evidence and at the stage of cross
examination, plaintiff has taken out this notice of motion seeking
permission for raising a temporary shed by using wooden polls and
plastic covers at the place where the suit premises i.e., zhopda no.1 near
Chagan Mitha petrol pump, M. J. Road, opposite Air Force building,
Mumbai were located.
2. Ld. Advocate for plaintiff submitted that in earlier motion
adinterim relief was rejected by the court as the defendant misguided
the Ld. Predecessor of this Court. Thereafter, on 10/03/2017 an order
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to hear the suit without written statement was passed. Accordingly, the
plaintiff filed affidavit of evidence and compilation of documents and
the matter was ready for crossexamination. He further submitted that
the defendant is taking out various motions and thereby delaying the
hearing and disposal of the suit. Thus, he has prayed for allowing the
motion. He placed reliance on an unreported judgment dated
09/12/1982 passed in appeal no. 513 of 1982 (Palakdhari Jaykumar
Yadav V/s. MCGM) by the Hon'ble High Court of Bombay (Coram:
Agarwal J.) To the effect that the structure demolished without
following due process of law is required to be restored.
3. The defendant corporation filed reply. Ld. Advocate for the
defendant submitted that the suit has been executed for declaration to
the effect that the action of demolition of the suit premises dated
20/10/2016, is illegal and further for a consequential relief of
mandatory injunction for reconstruction of the suit premises. According
to her earlier the plaintiff filed LC. Suit No. 1800 of 2013 in which, on
26/04/2013, adinterim relief was rejected. The suit premises, being
illegally constructed on footpath and the plaintiff being failed to
produce any documents showing legality of the said construction, the
defendant issued notice u/s. 314 of the Mumbai Municipal Corporation
Act directing plaintiff to remove the suit premises.
4. She further submitted that plaintiff failed to comply with
the said notice. He preferred an A. O. No. 1007 of 2013 and took out
CA No. 1220 of 2013. The Hon'ble High Court granted time to remove
the structure before 30/04/2013. However, the plaintiff failed to
remove the structure within the given limit. Therefore, on 27/05/2013
the suit premises were demolished. However, the plaintiff again raised
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the construction of the suit premises.
5. According to the Ld. Advocate for defendant the plaintiff
filed LC suit no. 2249 of 2013 for directing the defendant to follow the
due process of law. However, the notice of motion which was taken out
in the said suit was rejected on 16/10/2015. Thereafter, the plaintiff
filed another suit bearing LC suit no.2180 of 2016 seeking declaration
that the notice issued under section 314 is bad in law. Upon rejection of
notice of motion plaintiff did not prefer an appeal. Therefore, by
following due process of law a suit premises were demolished. The
plaintiff withdrew that suit on 27/10/2016.
6. Lastly she submitted that the footpath is meant for public
use. The defendant corporation is duty bound under section 61(m) of
the MMC Act to maintain safety and order of pedestrians. Therefore, the
plaintiff cannot prayed/reconstruct the suit premises. In reply Ld.
Advocate for the plaintiff submitted that every time the defendant has
misguided the court.
7. Considering the rival submissions it appears that the suit
has been instituted for a declaration that the action of demolition of suit
premises is illegal and further for a mandatory injunction for restoration
of the suit premises at the same place. The suit is pending for cross
examination of PW1 Noor Khan.
8. It is the settled position of law that in appropriate case even
at an interim stage a mandatory relief can be granted. However, the
Hon'ble Supreme Court time and again expressed its displeasure and
deprecated granting final relief at interim stage, except where the
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public interest, balance of convenience and host of other considerations
demand the same, as held in the case of Assistant Collector Vs.
Donlop India reported in AIR 1986 Supreme Court 230. Therefore, I
do not find any ratio in the case of Palakdhari Jaykumar Yadav V/s.
MCGM applicable to the present set of facts at interim level.
9. Here it is primafacie undisputed that the defendant
corporation has taken action of demolition and the plaintiff raised the
suit premises again and again. Now, in the present suit the plaintiff is
seeking final relief for reconstruction of suit premises, which were
demolished by the corporation. It will take few months to dispose of the
suit. Therefore, at this juncture it is not expedient to allow the notice of
motion so as to permit the plaintiff to reconstruct the suit premises and
in fact and in effect grant the final relief at interim stage. Moreover, the
suit premises were not residential premises. The same were a
commercial premises. Thus, the plaintiff and his family are not shelter
less. Therefore, the notice of motion requires to be dismissed. Thus, the
following order is passed:
O R D E R
1. Notice of Motion no. 2066 of 2018 is dismissed.
2. Parties to bear their own costs.
(M.S. Deshpande)
Adhoc Judge
City Civil Court
Directly typed on :28.06.2018
Checked by PO : 29.06.2018
Signed by HHJ on : 29.08.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30.06.2018 at 3.15 p.m. Mrs. Rupali S.Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI M. S. Deshpande (Court
Room No.05)
Date of Pronouncement of
JUDGEMENT/ORDER
28.06.2018
JUDGEMENT/ORDER signed by
P.O. on
29.06.2018
JUDGEMENT/ORDER uploaded on 30.06.2018
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