Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-006796-2018 Notice of Motion No. 2090/2018.
in L.C. Suit No. 1030/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2090 OF 2018.
IN
L.C. SUIT NO. 1030 OF 2018.
Vishwanath Shankar Mathpathi. …....…… ….. PLAINTIFF.
V/s.
M.C.G.M. …..…......................................... ….. DEFENDANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 03rd October, 2022.
APPEARANCES :
Ms. Vaibhavi Pawar, Ld. Advocate for the Plaintiff.
Mr. Sunil C. Khandagale, Ld. Advocate for the Defendant/MCGM.
*****
01. The plaintiff has taken out this Notice of Motion (for short
the NM), for perpetually restraining the defendant to demolish/ remove
portion of the suit premises, duly described in para Nos. 3 and 4 of the
plaint, in pursuance of the Speaking Order dtd. 02.06.2018. Perused the
NM, his accompanying affidavit, reply of the defendant and a rejoinder.
Heard both the sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in his favour ? …...........................
Common Finding :
Yes, till the
defendant follows
the due process of
law.
(ii). Whether balance of convenience lies in
favour of the plaintiff ? …...................... ...
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CNR NO. : MHCC01-006796-2018 Notice of Motion No. 2090/2018.
in L.C. Suit No. 1030/2018.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted ?......................
(iv). What Order ? …..............….................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. By this NM, the plaintiff’s worry is to restrain the defendant
to act upon the Speaking Order dtd. 02.06.2018. The record shows that
prior to filing of this NM, he preferred NM No. 1555/2018, assailing the
initial notice of dtd. 06.04.2018, issued U/s. 354-A of the MMC Act. The
said notice is culminated in passing of this Speaking Order. Today, the
said NM is partly allowed, restraining the defendant to proceed against
the notice structure, except by following the due process of law. While
passing this NM Order, it is observed that the plaintiff couldn’t prove the
authenticity of the notice structure. Simultaneously, it is found that even
the defendant did not follow the due process of law, while issuing the
earlier notice of dtd. 06.04.2018. In this scenario, even nothing remains
to be discussed in this NM, which is filed assailing the Speaking Order,
originated from the initial notice of dtd. 06.04.2018.
04. By way of this NM, the plaintiff is praying for the perpetual
injunction, restraining the defendant to act upon this Speaking Order. It
is needless to say that at this interim stage, relief of perpetual injunction
can not be considered in his fovour, simply because, it would amount to
decree the suit itself without having the trial on merits. That apart, the
defendant is the Statutory Body, who is responsible to regularize all the
construction activities. This being the position, the discretion lying with
the defendant can not be inferred with by issuing perpetual injunction.
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CNR NO. : MHCC01-006796-2018 Notice of Motion No. 2090/2018.
in L.C. Suit No. 1030/2018.
Certainly, once the defendant follows the due process of law, it would be
at liberty to proceed against this notice structure and therefore, the said
relief of perpetual injunction may create chaos. However, in this matter,
as the defendant is still to follow the due process of law, till that time,
the notice structure is to be protected. Hence, I answered point Nos.1 to
3 accordingly and in answer to point No.4, I pass the following Order:
-: O R D E R :-
(i). Notice of Motion No. 2090/2018 is partly allowed.
(ii). The defendant, its agents, its servants and anybody
else claiming through him are hereby restrained from
proceeding against the notice structure, in pursuance
of the Speaking Order dtd. 02.06.2018, except by
following the due process of law.
(iii). Notice of Motion No. 2090/2018, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 03.10.2022. City Civil Court, Mumbai.
Dictated on : 03.10.2022.
Transcribed on : 04.10.2022.
Checked and Signed on : 06.10.2022.
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CNR NO. : MHCC01-006796-2018 Notice of Motion No. 2090/2018.
in L.C. Suit No. 1030/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
07.10.2022 at 4.25 p.m.
Name of the Stenogrpher
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 03.10.2022.
Judgment/Order signed by P.O. on 06.10.2022.
Judgment/Order uploaded on 07.10.2022.
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