Order 1

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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
ORDER OF ADINTERIM RELIEF
IN
NOTICE OF MOTION NO. 2552 OF 2019
IN
S.C.SUIT NO 1926 OF 2019
Dr. Alka Kumar
An adult of Mumbai Indian Inhabitant
residing at B703, Utpal Park,
Sitladevi Temple Road,
Mahim (W), Mumbai – 400 016 ..Plaintiff
Versus
1. Vayu Cooperative Housing Society Ltd.
A Society registered under the
provisions of The Maharashtra
CoOperative Societies Act, 1960
and bearing registration No
MUM/WGN/HSG/TC/9443/201617/SAN 2016
and having its office address at F.P. No. 391,
TPS III, C.S. No.1A/756, Mahim Division,
Bhagoji Keer Road, Mahim (West),
Mumbai – 400 016
2. Bhageswar Bhuvan Cooperative Housing
Society Limited
a Society registered under the provisions of
The Maharashtra Cooperative Societies Act, 1960
and bearing Registration No. MUM/WGN/HSG/TC
/9444/201617/SAN 2016 and having its
Office Address at F.P. No. 391,
TPS III, C.S. No.1A/756, Mahim Division,
Bhagoji Keer Road, Mahim (West),
Mumbai – 400 016 ..Defendants
Appearance:
Ld. Adv. Mr. Diamondwala for plaintiff.
Ld. Adv. Mr. Dalal for Defendant No.1.
Ld. Adv. Mr. Kolge for Defendant No.2
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CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : December 20, 2019.
ORAL ORDER
This Notice of Motion is taken out by the plaintiff seeking
temporary injunction against Defendants in mandatory form during the
pendency of the suit. It is prayed that Defendants, their office bearers,
committee members, servants, agents and representatives or any person
claiming through them be restrained from preventing or obstructing the
free ingress and egress of the plaintiff, her patients, her servants or
agents or any person claiming through her to the suit property from the
entrance of the building as shown in the sanctioned plan Dated
26.5.2017 (Exh.A) filed to the plaint. Notice of Motion (N/M) is
supported by an affidavit of plaintiff Dr. Alka Kumar.
2. Defendants have opposed the Notice of Motion by submitting
affidavits in reply by Mr. Aadesh Chavan and Mr. Sujat G.Parkar on
behalf of Defendant Nos.1 and 2 respectively.
3. By precipe the matter was taken on Board on 16.12.2019
pressing for urgency in the matter and Ld. Counsel for the plaintiff
submitted additional affidavit of plaintiff Dr. Alka Kumar on record
alongwith the documents (vide Exhs.A to L). Ld. Counsel for the
plaintiff has also produced before the Court photographs of the suit
property showing its entrance gates for ready reference purpose.
4. It is submitted on behalf of the plaintiff that on 23.4.2019, this
Court was pleased to grant adinterim relief to the plaintiff and
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thereafter defendants have filed their reply to the Notice of Motion and
written statements. He submitted that in the meanwhile the plaintiff
has obtained all the necessary permissions and approvals from the
competent authority in respect of the Nursing Home and same has
become operational from 27.11.2019 after securing Nursing Home
Registration Certificate dt.14.10.2019.
5. However, it is submitted that Defendants, their servant, agents,
employees, security guards are illegally and unauthorizedly preventing
the plaintiff, her employees, agents, servants, workers and patients from
accessing the Nursing Home premises thereby creating obstruction in
the peaceful enjoyment of the suit premises owned by the plaintiff.
Hence, he submitted that it is most urgent that Court passes interim
order protecting the plaintiff till the Notice of Motion is heard and
decided on merits by the Court.
6. On the above background, I have heard Ld. Counsel for both
the sides on the point of grant of adinterim relief to the plaintiff as
prayed in the Notice of Motion.
7 Before I proceed to consider rival contentions on the point of
adinterim relief, it would be appropriate to make reference to the
earlier orders passed by this Court on 23.4.2019 by which the plaintiff
was granted adinterim relief. After considering submissions made on
behalf of both the sides, this Court had observed in para 7 that Society
shall not obstruct entry of the plaintiff in the suit premises from the
disputed entrance and submission of Ld. Counsel for Defendant No.1 in
that regard was accepted and taken on record. It was considered
sufficient to protect the interest of the plaintiff at that stage. It is
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pertinent to note that at that stage of the matter, it was disputed
whether the Nursing Home of the plaintiff had become operational or
not and prima facie there was no evidence to show that Nursing Home
had become operational and patients were using the aforesaid entrance.
8. Now, in the additional affidavit filed by the plaintiff, Ld.
Counsel for the plaintiff has pointed out that Nursing Home of the
plaintiff has become fully operational and the Defendants, their
servants, agents, and security persons are wrongfully
restraining/obstructing the plaintiff from making use of the suit
property as per sanctioned plan of the Nursing Home. It is submitted
that composite building where the suit property is situated has 3
independent and separate pedestrian entries providing independent
access to the lobbies of the Nursing Home, Sale Building and Rehab
Building. Nursing Home premises has been constructed as per the
sanctioned plan. The East side gate is earmarked and sanctioned for
Nursing Home premises. Center gate is earmarked and sanctioned for
occupation plan and West Side gate was earmarked and sanctioned for
rehab building as tenant entry.
9. However, it is submitted that Defendant No.1 has been
deliberately and intentionally started obstructing the access of the
plaintiff in the Nursing Home premises from East Side gate of the
compound causing her lots of harassment and inconvenience. It is
further submitted that Nursing Home Premises of the plaintiff are
constructed in accordance with the sanctioned plan in compliance with
the Regulation 51(3) of Development Control Regulation, 1991 and
Writ Petition No. 3054 of 2018 filed by Defendant No.1 through Aadesh
Chavan is filed with ulterior motive and malafide intention only to
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harass the plaintiff. Defendant No.1 has failed to obtain any order from
the Hon'ble High Court preventing the plaintiff from making use of the
Nursing Home premises. Therefore, Defendants have started
obstructing/harassing the plaintiff from making use of the Nursing
Home Premises.
10 It is alleged by the plaintiff that on 20.11.2019 Defendant No.1
had dug up entrance /access entrance to the Nursing Home from the
East side gate of the compound, facing Bhagoji Keer Marg and has
locked the compound gate to replace flooring tiles. Similarly,
pedestrians entry gate of sale building, used by the members of
Defendant No.1 society was locked till it was opened by the members.
Similar incidents have taken place on 5.12.2019 & 6.12.2019 when the
plaintiff has been obstructed from making entry in the suit premises
from east side gate and therefore, the plaintiff had to write a letter to
the Sr. P.I. which is annexed as Exh.N alongwith the additional affidavit.
11 The plaintiff was also compelled to lodge the complaint to Sr.
P.I. Mahim Police Station, copy of which is annexed to the additional
affidavit as Exh.P. Ld. Counsel for the plaintiff also referred the relevant
documents, photographs and sanctioned plan filed on record at pages
87 to 94. Photographs (Exhs. Q & R) show the entrance of East side
gate from where access is obstructed by the Defendants. Ld. Counsel for
the plaintiff submitted that there are counter Writ Petitions filed by the
plaintiff and Defendants against each other bearing Writ Petition No.
3345/19 and Writ Petition No. 3054 of 2018 and the same are pending.
Under the above circumstances, it is submitted that it is most necessary
and equitable to grant adinterim relief to the plaintiff as prayed in the
Notice of Motion.
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12. Per contra Ld. Counsels for Defendant Nos.1 and 2 have
strongly opposed the request of the plaintiff for grant of adinterim
relief to the plaintiff on the ground that there is no urgency as claimed
by the plaintiff in passing interim orders protecting the interest of the
plaintiff. The Notice of Motion is ready for hearing and the pleadings
have been already completed. The plaintiff has already approached the
Hon'ble Bombay High Court by filing Writ Petition bearing No.
3345/2019 against Defendants but plaintiff has not been able to obtain
any favourable orders and therefore, by way of back door entry, the
plaintiff wants to obtain interim orders from this Court. It is submitted
on behalf of the Defendants that entry of the plaintiff in the suit
premises from East Side gate is never denied by the Defendants.
However, the persons visiting the Nursing Home, servants, and patients
coming to the Nursing Home, can make entry from the West Side which
is provided for Nursing Home. Furthermore, it is submitted that
sanctioned plan of the Nursing Home of the plaintiff has been
challenged by the Defendants before the Hon'ble High Court by filing
Writ Petition No. 3054 of 2018 and the same is pending. Under the
above circumstances, no adinterim relief can be granted to the plaintiff
as prayed.
13. Ld. Counsel for the plaintiff placed reliance on the decision of
the Hon'ble Bombay High Court in the case of Dadar Avanti CHS Ltd.
and Anr. Vs. Municipal Corporation of Gr. Bombay, Decided on
February 10, 2009 (2009 SCC Online Bom 220) and another decision
of the Hon'ble Bombay High Court in Manisha Heights CoOperative
Housing Society Ltd. Vs. The Municipal Corporation of Greater
Mumbai & Ors., Decided on August 7, 2017 (Writ Petition No. 1604 of
2016).
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14. I have gone through the above authorities and find that in the
first authority cited supra, in para 9 the Hon'ble Bombay High Court has
observed that as per Regulation 51 (iii) of Development Control
Regulation, 1991, the person who wants to approach the surgical clinic
or Nursing Home should not be required to use the common access
available to other occupants and visitors to the building. The term
'separate means of access' has been used to indicate that there must be
a separate approach to the independent part of the building where the
clinic can be permitted within the building. The interpretation which is
to be accepted by the Court has to be meaningful. In the second
authority cited supra, the Hon'ble Bombay High Court in paras 8 and 10
has considered said Regulation 51 and it is pointed out that the
legislative intent is very clear that use of Nursing Home etc. can be
permitted either in an independent building or in the same building on
the ground floor, 1st floor or 2nd floor. The only requirement would be
that such an area must have independent access from within the
building or outside the building. In the said case, the Hon'ble Bombay
High Court had found to have sanctioned Nursing Home in the
commercial area of the building having totally separate access apart
from the access which was provided to the residential area. Therefore, it
was observed in para 13 that in the building the area which was meant
for residential purpose, a Nursing Home was permissible activity
subject to conditions.
15. I have considered ratio of the above above authorities and find
that all the issues which are raised before the Court at the stage of
hearing on interim relief, in the present Notice of Motion, are
pertaining to the merits of the case. As per the legality of the sanction of
the Nursing Home, certain averments made in the Notice of Motion are
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related to some factual aspects which are disputed between the parties
and correctness and truthfulness of the averments can be properly
appreciated by the Court only after hearing both the parties on merits in
the Notice of Motion or during the trial or after close scrutiny of the
primafacie material and documents on record. If the interim relief as
prayed is granted at this stage, it will amount to substantially deciding
the Notice of Motion on merits itself without proper and detail hearing.
Hence, I proceed to pass the following order:
ORDER
1. Adinterim relief as prayed by Learned Counsel for the plaintiff is
hereby refused.
2. Hearing of Notice of Motion is expedited.
3. Plaintiff and Defendants are directed to maintain peace, not to
take law in their hands and abide by the orders passed by this Court.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 20.12.2019 Gr. Bombay (C.R. 03)
Dictated on : 20.12.2019
Typed on : 20.12.2019
Draft given on : 21.12.2019.
Signed by HHJ on : 21.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 23.12.2019
TIME: 12.38 pm (B.S. Parab)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 20.12.2019
Judgment/ order signed by P.O on 21.12.2019
Judgment/ order uploaded on 23.12.2019
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