Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M. No. 2230 of 2018
CNR: MHCC01-007216-2018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO. 2230 OF 2018
IN
L.C.SUIT NO.1418 OF 2011
Iqbal Mohamed Shafi Agwan .. Plaintiff
V/s.
Municipal Corporation for
Greater Bombay .. Defendant
Appearance:-
Adv. Khatib for plaintiff.
Adv. Sachin Vajale for defendant/BMC
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 16/10/2024.
ORDER
By this Notice of Motion, the plaintiff has prayed for the
relief of temporary injunction restraining the defendant/MCGM from
implementing and/or taking any action pursuant to the impugned
notice dt. 10/02/2011 under Section 351 of the MMC Act and order dt.
21/05/2011 towards the notice structure or any part thereof, pending
the hearing and final decision of the suit.
2 Perused affidavit in support of the Notice of Motion and
reply-cum-additional written statement of the defendant/MCGM. Heard
both sides.
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3 In the light of respective submissions, I have carefully gone
through the entire facts and circumstances on record. While considering
the facts on record, it will be just and appropriate to reproduce the
unauthorized construction as alleged in the schedule of the impugned
notice which is as under.
“unauthorised construction of first floor with brick masonry
wall and ladi coba floor and A.C. sheet roof adm. 10’ x 13’
of ht (6’ 6” +7’ 6”), room No. 22, near St. Bapista Garden
adjacent to Jasmine C.H.S., Mazgaon.”
4 Having gone through the copies of documents tendered on
record on the part of the plaintiff, it can be seen that the plaintiff has
produced the copy of postal envelop addressed in the name of his father
at First Floor, Lohar Khata, R.No. 22, near Bhandarwada Hill, Mazgaon,
Post Cards having a seal of the Postal Department of the year 1961
onwards, copy of application dt. 29/04/1958 issued by the father of the
plaintiff to the Hydraulic Engineer having the seal of the Water Works
Department by way of acknowledgment of the receipt of the said letter
on 29/04/1958. Another copy of letter dt. 12/05/1958 issued by
Hydraulic Engineer to the father of the plaintiff shows that water
connection permission was granted to the father of the plaintiff for
room No.22, first floor, near Bhandarwada Hill, behind Polson
Company, Mazgaon. Another significant document produced on record
is the copy of repair permission dt. 18/11/1963 made by the father of
the plaintiff through Architect to the Assistant Engineer (Bldg. Dept.)
and copy of permission dt. 23/03/1964 granted by the Assistant
Engineer, Bldg. Dept., E Division to the existing first floor, R.No.22 of
Mazgaon (W). Moreover, copy of approved plan dt. 23/03/1964 is also
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3 N.M. No. 2230 of 2018
filed on record.
5 In the light of these documents, the plaintiff has
successfully discharged the initial burden by showing that the suit
premises i.e. the R.No.22 near St. Bapista Garden is in existence since
1958. Therefore, onus shifts upon the defendant/MCGM to prove that
these documents are pertaining to some other structure. In this regard,
not only in the speaking order dt. 03/08/2017 but in the reply-cum-
written statement, the defendant/MCGM has also come with a case that
these documents i.e. the correspondence, repair plan and approved
repair plan are related to some other structure in the close proximity of
nearby locality of the same address. It was, therefore, incumbent on the
part of the defendant/MCGM to show as to for which premises this
repair permission was granted by the competent authority of the
defendant. However, except bare contention, nothing is brought on
record to show that these documents are not pertaining to the suit
premises.
6 Another significant thing to be taken into consideration is
that the defendant/MCGM has not disputed the genuineness of these
documents and it is nowhere contended that these documents are either
false or fabricated. In fact, while considering the equitable relief of
injunction, there is no need to go into the merit of the case and on the
basis of material available on record, the Court has to find out whether
prima facie case is made out or not. In this backdrop, if the copies of
aforesaid correspondence having seal of postal department coupled
with the application for permission to repair the suit premises and
granting of such permission and copy of the approved repair plan are
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taken into consideration, no reason appears to me to discard these
documents in the absence of anything contrary brought on record. As
discussed earlier, except bare contention, nothing is brought on the part
of the defendant/MCGM to show that these documents are pertaining
to some other premises which is altogether different as compared to the
suit premises. In these circumstances, I come to the conclusion that the
plaintiff has made out prima facie case and balance of convenience also
lies in favour of the plaintiff. Therefore, if the interim relief is not
granted as prayed for, it will cause great prejudice to the plaintiff which
cannot be compensated in terms of money. In the result, following order
is passed.
ORDER
1 Notice of Motion No. 2230 of 2018 is allowed in terms of
prayer clause (a).
2 The defendant/MCGM is hereby temporarily restrained
from acting upon the impugned notice dt. 10/02/2011 and order dt.
21/05/2011 in respect of the suit premises or any part thereof, pending
the hearing and final decision of the suit.
3 Costs in cause.
4 Notice of Motion stands disposed of accordingly.
Date:16/10/2024. (R. M. Mishra )
Dictated on :16/10/2024. Judge, City Civil Court,
Typed on :16/10/2024. Gr.Mumbai.
Signed on :16/10/2024.
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5 N.M. No. 2230 of 2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16/10/2024. 01.38 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
16/10/2024.
JUDGMENT/ORDER signed by P.O.on 16/10/2024.
JUDGMENT/ORDER uploaded on 16/10/2024.
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