Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft N/M (LCS No.2837/19)
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
DRAFT NOTICE OF MOTION
IN
LONG CAUSE SUIT No.2837/2019
Abdul Sattar Vazir Shaikh … Plaintiff
- Versus -
Municipal Corporation of
Greater Bombay ... Defendant
Appearance :-
Mrs. S. S. Donde, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendant.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 04/10/2023.
O R D E R
. This is suit for injunction restraining defendant/B.M.C. or
anybody through it from dispossessing the plaintiff from flat No.004,
building No.10/A, Bharat CHS, Natwar Parekh Compound, Ghatkokar-
Mankhurd Link Road, Govandi, Mumbai without following due process
of law and the plaintiff has taken out present Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of The Code of Civil
Procedure (in short the C. P. C.) restraining defendant/B.M.C. from
dispossessing the plaintiff without following due process of law.
2] It is contended by the plaintiff that he was in possession of
structure at Barrister Nath Pai Marg, Zopadpatti, Mumbai-8 and said
structure was on a footpath and same is removed by the Corporation as
per its policy. Defendant/B.M.C. has issued notice under Section 314 of
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2 Draft N/M (LCS No.2837/19)
the M. M. C. Act. The plaintiff was called upon to produce documents
showing that original structure of the plaintiff is prior to 1/1/1995 for
deciding eligibility of the plaintiff for permanent alternate
accommodation. Accordingly, the plaintiff submitted original documents
alongwith reply. It is further stated that defendant/B.M.C. issued letter
giving details of date of lottery to be held for allotment of tenements. It
is further stated that the Corporation considered documents and held
the plaintiff eligible for an alternate accommodation. Then defendant/
B.M.C. allotted suit premises to the plaintiff in lieu of his old structure
and issued possession letter.
3] It is further stated that the plaintiff is in legal possession of
notice structure as per allotment letter. The plaintiff is paying
maintenance to society. The plaintiff is having electricity connection,
Aadhaar Card, PAN card, ration card etc. The plaintiff is in lawful
possession of notice structure since 2008 however, on the basis of a
false complaint the officer of the Corporation with security guards
visited suit premises and threatened the plaintiff to dispossess him
without following due process of law. Therefore, the plaintiff filed this
suit and taken out Notice of Motion.
4] It is further stated that the Corporation has not issued any
notice to the plaintiff. He is in legal possession of suit premises. The
Corporation ought to have issued notice under Section 105B of the
M.M.C. Act however, the Corporation has not followed due process of
law. Therefore, the plaintiff is entitled for temporary injunction as
prayed.
5] Defendant/B.M.C. opposed Notice of Motion by filing reply.
At the outset, it is stated that the plaintiff has not given notice under
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Section 527 of the M. M. C. Act, therefore, suit is not maintainable.
There is no cause of action to file this suit. It is further stated that the
plaintiff is not a project affected person and he is trying to encroach
upon property of the Corporation on the basis of fake and fabricated
documents. It is further stated that after service of Notice of Motion, the
officer of the defendant/B.M.C. checked the record of the B.M.C. and
surprised that notice structure has not been allotted to any person and
the keys are lying in the office. It is further stated that M/East ward sent
letter to Assistant Engineer, Maintenance, F/Sough ward and called
remarks whether allotment letter and possession receipt are issued by F-
South ward. The Assistant Engineer, Maintenance F/South by letter
dated 8/12/2022 informed that allotment letter and possession receipts
are not issued by F/South ward.
6] It is further stated that the B.M.C. has not issued NoC for
transfer of electricity meter. The plaintiff is not a project affected
person. The suit structure has not been allotted to the plaintiff. The
plaintiff prepared fake and false documents and filed this suit.
Defendant/B.M.C. has not issued allotment letter to the plaintiff. The
plaintiff has filed suit on the basis of fake and fabricated documents and
this amounts interference in the administration of justice and the
plaintiff is liable to be punished under Section 192 of the Indian Penal
Code, therefore, defendant prays action under Section 195 of the Code
of Criminal Procedure. On these grounds, defendant/B.M.C. prays for
dismissal of Notice of Motion.
7] Points for determination alongwith findings thereon for the
reasons are as under :-
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4 Draft N/M (LCS No.2837/19)
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
8] Heard learned advocates for the parties.
9] Learned advocate for the plaintiff submitted that the
plaintiff was in possession of structure situated at Barrister Nath Pai
Marg, Mumbai which was situated on a footpath and the Corporation
had issued notice under Section 314 of the M. M. C. Act and called
upon the plaintiff to submit documents, for deciding eligibility for
alternate accommodation. Accordingly, the plaintiff submitted
documents. It is further submitted that the Corporation has arranged
lottery for allotment of alternate accommodation and, accordingly, the
Corporation allotted suit premises to the plaintiff as a permanent
alternate accommodation in lieu of his old structure and also issued
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possession receipt. It is further submitted that the plaintiff is in
possession of notice structure since 2008. The plaintiff is having
maintenance receipt, electricity bill, PAN Card, Aadhhar card, gas
connection at the address of suit structure.
10] It is further submitted that the plaintiff is in possession of
suit structure since 2008 however, the officer of the Corporation
threatened to dispossess the plaintiff without issuing any notice and,
therefore, the plaintiff has filed this suit for injunction and taken out
Notice of Motion. It is further submitted that a person in possession
cannot be dispossessed without following due process of law and in the
case on hand, the plaintiff is in lawful possession of suit structure.
Therefore, the plaintiff is entitled for temporary injunction as prayed. It
is further submitted that the documents relied by the plaintiff cannot be
stated to be forged and fabricated at this primary stage and after
recording evidence the Court can decide whether documents are
genuine or fake or fabricated and till then the plaintiff is entitled for
protection.
11] On the other hand, learned advocate for the Corporation
submitted that the documents submitted by the plaintiff are fake and
fabricated. The defendant/B.M.C. has not allotted notice structure to
the plaintiff as a project affected person. The impugned notice at
exhibit-A to the plaint and allotment letter exhibit-B to the plaint are
false and fabricated and on the basis of false and fabricated documents
the plaintiff is claiming right over suit structure. It is further submitted
that as per record of the B.M.C. notice structure is not allotted to
anybody and same is in possession of the Corporation. It is further
submitted that the plaintiff fabricated documents i.e. allotment letter
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and possession receipt and filed the suit. Therefore, action be taken
against the plaintiff as per the provisions of Section 340 of the Cr. P. C. It
is further submitted that the plaintiff has not come to the Court with
clean hands and is not entitled for relief of temporary injunction.
12] The plaintiff filed suit for injunction restraining defendant/
B.M.C. and its officers from dispossessing or evicting the plaintiff
without following due process of law. It is case of the plaintiff that he is
a project affected person and his old structure situated at Dr. Nath Pai
Marg, Mumbai – 400 008 has been removed by the Corporation as it
was situated on a footpath and in lieu of his old structure the
Corporation allotted notice structure to the plaintiff. Defendant/B.M.C.
denied that the plaintiff is a project affected person and notice structure
has been allotted to him. Thus, the burden lies upon the plaintiff to
prove his legal possession over notice structure.
13] In order to show that the plaintiff is a project affected
person he has produced copy of notice alleged to be issued by B.M.C.
under Section 314 of the M. M. C. Act to the plaintiff. It is important to
note here that in paragraph No.3 of the plaint it is pleaded that the
plaintiff's old structure was situated at Barrister Nath Pai Marg,
Zopadpatti, Mumbai – 400 008. However, notice under Section 314 of
the M. M. C. Act has been issued at a different address. The said notice
has been issued at Zakaria Bunder Road, Sewree, Mumbai – 15. This
shows that the address of old structure mentioned in the plaint and the
address mentioned in the notice under Section 314 of the M. M. C. Act
are totally different. The plaintiff has relied upon allotment letter dated
10/10/2008 allegedly issued by Assistant Commissioner, F/South Ward
to show that defendant/B.M.C. has allotted the notice structure to the
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plaintiff. Defendant/B.M.C. alongwith reply to Notice of Motion
produced on record letter written by Assistant Engineer, F/South ward.
In the said letter, it is clearly stated that notice structure has not been
allotted to anyone and it is vacant and notice structure has not been
allotted by officer of F/South ward. The correspondence with the
Assistant Engineer, Maintenance, F/South ward clearly shows that
notice structure has not been allotted to anyone and it is a vacant
structure. It appears that allotment letter was not issued by concerned
officer of F/South ward of the B.M.C. The address in the alleged notice
under Section 314 of the M. M. C. Act and the address given by the
plaintiff in paragraph No.3 of the plaint are totally different. Thus, the
documents provided by the plaintiff appears to be doubtful. This creates
doubt about genuineness of allotment letter as well as possession
receipt. The plaintiff has not produced copy of Annexure-II, or any other
document, showing address of old structure or to show that notice
structure has been allotted by B.M.C. to the plaintiff as a project
affected person. Therefore, I hold that the plaintiff has failed to
establish his lawful possession over suit structure.
14] The plaintiff has filed this suit for perpetual injunction
restraining defendant/B.M.C. from dispossessing the plaintiff without
following due process of law. However, the plaintiff has failed to
establish his lawful possession over suit premises. The plaintiff has not
produced on record legitimate documents to show that he is project
affected person or entitled for allotment of tenements as project
affected person. In the circumstances, the possession of plaintiff, evenif
there may be any, can merely be termed as a 'trespasser'. Hon'ble Apex
Court in the case of Maria Margarida Sequeria Fernandes and Others
Versus Erasmo Jack de Sequeria (Dead) through L.Rs. (Civil Appeal
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No.2968 Of 2012) held that the due process includes the opportunity to
file pleadings and documents and does not include whole trial and such
a due process of law is satisfied the moment rights of the parties are
adjudicated upon by competent Court.
15] In the case on hand, the plaintiff has failed to establish any
lawful possession over suit premises or any legal right over suit
premises. Therefore, I hold that the plaintiff has not made out
prima
facie case for grant of temporary injunction. Balance of convenience
does not tilt in his favour. Accordingly, points No.1 to 3 are answered in
the negative and in answer to point No.4 following order is passed :-
O R D E R
1] Draft Notice of Motion is dismissed.
2] Notice of Motion be registered for statistical purpose.
Date : 04/10/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
10/10/2023 02:50 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 04/10/2023
ORDER Typed on 08/10/2023
ORDER signed by P.O. on 09/10/2023
ORDER uploaded on 10/10/2023
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