Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010109232018
Presented on : 28-08-2018
Registered on : 28-08-2018
Decided on : 10-02-2021
Duration : 2 years, 5 months, 13
days
IN THE COURT OF
COURT 1 ADDL SESSIONS JUDGE AT Mumbai,Mumbai
Presided Over by HHJ SHRI. M. S. AZMI
NOTICE OF MOTION/103236/2018
IN
SUIT NO.1863 OF 2018
Shagufa Israil Ansari
Age: 27
Occupation : Advocate
Address: Room No. 11,
Peter Fernandes Chawl, Dadiseth Lane,
Near Bandstand Girgaum Chowpatty,
Mumbai - 400007. ..Plaintiff
VERSUS
F. M. Chinoy and company Pvt Ltd
A Company incorporated under the
Companies Act, 1956,
Having registered address at 11th floor,
Panchsheel Plaza, 55, Gamdevi Road,
Hughes Road,Mumbai-400 007. ..Defendant
Advocate for : Vaid And Asso.
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Ld. advocate Mr.Vaid for plaintiff alongwith Plaintiff in person.
Ld. advocate Mr.Dalal for the defendant.
ORAL ORDER
(Delivered on 10-02-2021)
1. By this notice of motion, the plaintiff prays for order of
temporary injunction restraining the defendant or any
person acting on their behalf for not restraining the use of
the common passage by the plaintiff and/or her family
members and/or their visitors, further prayed for directing
the defendant to allow emergency vehicles and private
vehicles to enter upon the suit premises and directing the
defendant to remove Patra gate constructed inside the lane
of a said chawl i.e. Peter Fernandes Chawl, b/h Tej Kiran
Bldg, Near Bandstand Chowpatty, Mumbai-400 007.
2. In short the case of the plaintiff is that plaintiff is in
occupation and possession of room no.11, Peter Fernandes
Chawl, b/h Tej Kiran Bldg, Dadiseth lane, Mumbai-400 007
(hereinafter referred to as ‘Suit premises’) since birth. The
plaintiff and her family have come down to the suit
premises in the year 1970. The defendant is the lessee of
the property bearing CS no.393 neighbouring property
adjacent to the said chawl. The plaintiff and her family
since the time of their occupation in the suit premises
continuously and without any interruption have been using
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one common passage to enter the suit premises. The
defendant illegally obstructed the lawful right of way of the
plaintiff and her family to enter upon the suit premises by
blocking their right to way of passing upon the common
passage. The defendant arbitrarily tried to cover the
boundary to the entire passage. The said common passage
has been used by the parents of plaintiff since last 50 years
and simultaneously by plaintiff since last 27 years. The
defendant had constructed a patra gate on the said
common passage. On 24/03/2018, the defendant locked
the said patra gate. The plaintiff approached the police
station for taking steps but police did not initiate any
action. Immediately on 28/03/2018, the defendant
illegally put second patra gate inside the lane of chawl of
the plaintiff thereby permanently blocking the right to way
of plaintiff. The plaintiff’s sister filed a complaint with
Gamdevi police station, but police did not take any action
against the defendant. Hence, the plaintiff is constrained to
file the present suit with this accompanying notice of
motion.
3. The defendant resisted the claim of the plaintiff by filing
reply. It is contended by the defendant that there is no
common passage on the property of the defendant on
which the plaintiff is claiming the right of way. The suit
filed by the plaintiff is dishonest, malafide, frivolous and
mischievous and an attempt to gain access to the
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defendant’s property thereby jeopardizing the security of
the defendant’s property and for interfering with the rights
of the defendant to enjoy their own property. There is no
cause of action. The defendant prays for dismissal of the
notice of motion.
4. On rival contention of the parties, following points arise for
my determination and findings to it are recorded for the
reasons stated to follow -
POINTS
(1) Whether the plaintiff has made out prima-facie case in
her favour ?
(2)Whether the needle of balance of convenience tilt in the
favour of plaintiff ?
(3) To whom, irreparable loss would be caused ?
(4) What order ?
FINDINGS
1. In the negative
2. In the negative
3. Not to the plaintiff
4. As per final order.
REASONS
Point no.1 to 3
5. Ld. Counsel for the plaintiff submitted that the
plaintiff has filed the suit claiming right of access to the
said common passage by way of easementary right u/s. 15
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of the Indian Easements Act, 1882. From the plaint
avernments, the plaintiff claims right of way upon common
passage to enter the suit premises. There is nothing in the
plaint that the common passage is part of property of the
defendant. Therefore, the prima facie claim of easement by
prescription does not stand. If, it is considered that the said
common passage is passing through the property of the
defendant and the claim of the plaintiff for easement by
prescription survives in that eventuality, the plaintiff has to
describe on which portion of the said property of the
defendant the passage is located. On perusal of the sketch
map annexed with the plaint or with notice of motion,it is
difficult to exactly locate from which portion of defendant’s
property the said common passage pass. In the absence of
the description of the said common passage, either in the
plaint and in the sketch map, it is not possible to pass any
enforceable order. It is not the case of the plaintiff that she
has right over the entire property of the defendant for
ingress and egress or to say right of way to approach suit
premises. Her contention is limited to her right of way
through the common passage. But as pointed above, the
location of the common passage as to which portion of the
property of the defendant is not mentioned in the plaint
and the sketch map.
6. The contention of the plaintiff is that the
defendant had constructed a patra gate at the said common
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passage couple of months back to the main entrance. The
said patra gate was kept always open and the common
passage was continuously in use even at that time. At the
time of the construction of patra gate, it appears that the
plaintiff has not objected to the defendant. The defendant
on 24/03/2008 locked the said patra gate of the common
passage and thereby permanently obstructed the right of
way of the plaintiff and other residents. It is the contention
of the plaintiff that she has lodged complaint on
26/03/2008. The defendant on 28/03/2008 illegally put
second patra gate inside the lane of chawl and thereby
permanently blocked the right of way of the plaintiff. The
plaintiff’s sister lodged complaint at Gamdevi police station.
The plaintiff knocked the doors of authorities but they did
not take action against the unlawful acts of the defendant.
The police authorities have not taken any action. Ld.
Counsel for the plaintiff pointed out during the course of
arguments the report of the office of the Fire Brigade,
Municipal Corporation of Greater Mumbai which suggest
that from the South side the access is found blocked with
patra gate/boundary wall of the defendant. He would
submit that report is sufficient to show that the defendant
has blocked the road. The report is not required to be read
in isolation. The report says that the chawl is having two
accesses for emergency vehicles, one from Dadiseth Lane
which is connected with narrow lane approximately 200’ to
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250’ length and other which the plaintiff claimed to be
blocked by defendant. Thus, it is apparent that the plaintiff
is having access to her property and even from the said
Dadiseth Lane. Even the emergency vehicles can be passed
as per the report of Fire Brigade. So, the contention of the
plaintiff that there is no alternative way for plaintiff does
not survive. The plaintiff has also filed the Survey Register
for the Town and Island of Bombay. Ld. Counsel for the
plaintiff pointed out that the area of 25.084 sq. meters has
been notified u/s.4 of the Land Acquisition Act, 1894 vide
Govt.notified in R& F Dept No.LBO-2872-HI dt. 05.04.1972
for public purpose viz. For east side approach to Malabar
Hill Tunnel. On bare reading of the copy of the survey
register it reflects that the way shown in the survey register
is on the east of the property of the defendant. Even
otherwise, if it is considered that Government has acquired
the land under Land Acquisition Act, notified a particular
piece of land of plaintiff for the way, then it would be a
public way. On that count also the easement prescription
would not survive. The plaintiff therefore, has an equally
efficacious remedy to approach concerned authority for
clearing the said public way.It is not the case of the plaintiff
that after acquisition the said portion of the land of plaintiff
was declared and used as way. It is also not the case of the
plaintiff that the common passage is the same acquired
portion of the property of defendant by the Government.
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7. On reading the plaint avernments, the size
dimension and location of the passage is not clear, and
therefore the plaintiff prima facie has not made out case for
grant of injunction. Prima facie from the plaint
avernments, it is not reflected that the plaintiff has been
using access as of right through the property of the
defendant for more than 20 years. Prima facie when the
plaintiff has access through the North side of her property,
there is no reason at this stage to consider why the property
of other person be used as a access for her. Prima facie in
order to establish the right of prescription to the detriment
of other property, one has to aver specific pleadings. The
plaintiff in the compilation dated 14/12/2018 has given the
photographs which shows that there is way to her suit
premises and even the print out of map shows the way. The
defendant also filed a arial map pointing out the road
leading towards the suit premises. Prima facie, it shows
that there is other road to the premises of the plaintiff. The
plaintiff failed to demonstrate extra ordinary prima facie
case for removal of the said gate on the property of the
defendant. Ld. Counsel for the defendant during the course
of arguments filed copy of Writ petition (L) No.1064 of
2018 filed by the mother of the plaintiff wherein on
03/04/2018 the order was passed by the Hon’ble High
Court and directed that remedy is available to the mother
of the plaintiff to proceed against the defendant and the
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Municipal Corporation was directed to consider the
representation and to take appropriate action in accordance
with the law. As per the plaintiff, the said petition is still
pending. But the claim in the petition appears to be of the
same nature for the direction for removal of gate. The suit
is filed subsequent to the filing of the said petition and
there is no avernment to that effect. This prima facie shows
the conduct of the plaintiff. As per the plaint avernments, it
appears that the gate was locked on 24/03/2018 and the
suit was filed on 07/06/2018 after the considerable period
of four months and therefore on this count also, the
plaintiff is not entitled for any interim relief of mandatory
nature. The relief claimed by the plaintiff is of mandatory
nature and for the said relief strong prima facie case has to
be made out which the plaintiff failed to make out. The
plaintiff prima facie has other convenient way, and
therefore the needle of balance of convenience does not tilt
in favour of the plaintiff. As pointed out, the plaintiff will
not suffer irreparable loss if the injunction is not
granted.Hence, I answer point nos.1 to 3 in the negative.
Point No.5
8. In view of the above findings, notice of motion needs
no consideration. Hence, it is expedient to pass following
order:-
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ORDER
1. N/M no.3236/18 stands rejected.
2. Costs in the cause.
10/02/2021 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 10/02/2021
Transcribed on : 15/02/2021
Signed on : 16/02/2021
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
20/02/2021 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/order 10/02/2021
Judgment and order signed by P.O. 16/02/2021
Judgment/order uploaded on 20/02/2021
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