Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2799/2019 .. 1 .. L.C. Suit No.1513/2019
CNR NO.MHCC01-007296-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2799 OF 2019
IN
L.C. SUIT NO. 1513 OF 2019
Mr. Lindwall Joseph Rodrigues )
aged about 53 years, )
adult Indian Inhabitant, residing )
at House No.201, 2nd Floor, Hemraj )
House, Waras Lane, Worli Koliwada, )
Mumbai – 400 030. )….Plaintiff
Vs.
1. Hemanand B. Namdarian )
of Bombay Adult Indian Inhabitant )
Residing at House No.334-B, Hemraj )
House, Waras Lane, Worli Koliwada, )
Mumbai – 400 030. )
2. Municipal corporation of Gr. Mumbai )
a body incorporated under the provisions )
M.M.C. Act having its office at Mahapalika )
Bhavan, Mahapalika Marg, )
Mumbai – 400 001 Through Asst. Municipal)
Commissioner G/South Ward N.M. Joshi )
Marg, Lower Parel, Mumbai – 400 013 )….Defendants
APPEARANCE:-
Ld. Adv. Mr. Omprakash Tiwari for the plaintiff.
Ld. Adv. Mrs. Dipali Patil for the defendants/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 11th DECEMBER, 2020.
O R D E R
This Notice of Motion is moved by plaintiff praying to
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restrain defendants from implementing the impugned notice u/sec.354
A of MMC Act dated 19.06.2019 and the speaking order dated
28.06.2019.
Description of suit premises -
Premises of 2nd floor of House No.201 Hemraj House,
334(B), Waras Lane, Golfadevi Temple Road, Worli Koliwada,
Mumbai – 30
Case of plaintiff in brief is as follows -
2. According to plaintiff, he is in lawful use, occupation and
possession of suit premises since years together. Defendant No.1 is
owner of suit premises. Defendant No.2 is body incorporated under
MMC Act. Defendant No.1 started disputing rights of plaintiff in suit
premises. Therefore, he has filed suit in Small Causes Court, Mumbai
bearing Suit No.341/19. The officers of defendant No.2 visited suit
premises on 02.02.2019 to demolish the suit premises. When plaintiff
raised objection, they left suit premises. According to him, the
impugned notice dated 19.06.2019 u/sec.354 A is issued to plaintiff.
Plaintiff has replied through his advocate by reply dated 20.06.2019.
When plaintiff went to give the reply, defendant No.2 informed that
they have arranged for demolition. According to plaintiff, there is no
work of construction in progress. Therefore, notice issued u/sec.354 A
is bad in law. Plaintiff has therefore filed this suit and present notice of
motion.
3. Defendant No.2 corporation has resisted the aforesaid
notice of motion by filing their reply at Exh.02. They have denied all
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the averments in notice of motion except those which are specifically
admitted by them. It is contended that suit and notice of motion is bad
for want of notice under section 527 of the MMC Act. The plaint
discloses no cause of action. Therefore, suit is not tenable and
maintainable. According to them, officer of defendant No.2 visited the
suit premises on 14.06.2019 and found ongoing unauthorized
construction in progress of roof slab of first floor and wall above at
334-B, Near Slink and Bardot Restaurant, Golfadevi Temple Road, Worli
Koliwada, Worli, Mumbai – 400 018. Plaintiff failed to produce the
permission of competent authority for erection of the ongoing work.
Officer of defendant took photographs, measurement of ongoing work
and prepared panchanama on 15.06.2019 and inspection report on
17.06.2019. Plaintiff has no document of authorization of the notice
structure. Therefore, they have prayed for dismissal of notice of motion.
4. Heard, Ld. Advocate Mr. Omprakash Tiwari for Plaintiff,
Ld. Advocate Mrs. Dipali Patil for defendant corporation. On hearing
the parties and on going through entire record of the case, following
points arise for my determination with its findings and for reasons to
follow :
S.N. POINTS FINDINGS
1 Whether plaintiff proves that prima facie
case lies in his favour ? In Negative
2 Whether plaintiff proves that balance of
convenience lies in his favour ? In Negative
3 Whether plaintiff proves that irreparable
loss will be caused to him, if the
application is not allowed ?
In Negative
4 What order ? As per final order.
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R E A S O N S
AS TO POINTS NO.1 TO 3
As all the points are interlinked with each other, they are
discussed together.
5. Both learned advocate for plaintiff and learned advocate
for defendants have argued in lines of pleadings in notice of motion
and reply respectively.
6. Though plaintiff has denied in averments in plaint that
there is ongoing construction in suit premises, the photographs
tendered by defendant on record prima-facie reveal the ongoing
construction in suit premises on 02nd floor. There is no counter to
aforesaid photographs on record. The ongoing construction of brick
masonry wall, the cement bags and the construction material appearing
in photographs do support prima-facie the defence of defendant on the
factum of the ongoing construction in suit premises. Plaintiff failed to
explain about the ongoing construction. The first two photographs at
annexure-1 reveal prima-facie the ongoing construction of second floor.
7. Plaintiff has not tendered any document on record to show
that the aforesaid construction is after obtaining due permission from
the competent authority. No doubt plaintiff is tenant in suit premises.
The rent receipt dated 10.01.2019 for the month of October to
December-18 is prima-facie substantiating the fact that plaintiff is
tenant in suit premises. The argument of learned advocate for
defendant that there is no tenancy agreement is not appreciable at this
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stage. The copy of rent receipt is sufficient prima-facie at this stage to
substantiate the possession of plaintiff as tenant in suit premises.
8. Because plaintiff is in possession of suit premises, he has to
explain about the ongoing construction. Plaintiff failed to tender any
document on record to substantiate prima-facie that the aforesaid
ongoing construction is after obtaining due permission. There is not a
single document on record to prima-facie substantiate the authorization
of the notice structure.
9. In present case, defendants have challenged the notice
structure u/sec.354 A of MMC Act. It is not denied that plaintiff is in
possession of suit premises. Plaintiff has also not denied nor tendered
any document on record to counter the aforesaid photographs tendered
by defendants on record. Therefore, it is plaintiff only who can explain
about the ongoing construction. The landlord is not supposed to
explain about the ongoing construction done by plaintiff. Therefore,
even if the arguments of learned advocate for plaintiff that plaintiff is
tenant in suit premises, is accepted, it will not exempt plaintiff from
explaining about the ongoing construction in suit premises.
10. Learned advocate for plaintiff relied upon the observations
in the case of
Mohammed Yusuf Abdul Sattar V/s. Municipal
Corporation for Greater Bombay in A.O. No.712/1996.
11. The following observations in the cited case are relied
upon. They are reproduced as follows-
“The specific case set out by the noticee in the reply was
that he was tenant in room No.1 situate on the first floor of
a building at 3/5 Rippon Cross Lane, and that the tenancy
had began about 4 years back. How can a tenant who has
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been inducted somewhere in the year 1987-88 could
produce any document to show the existence of the
disputed structure prior to 1962.”
12. In this cited case the impugned notice was u/sec.351 of
MMC Act. As the plaintiff in the cited case was tenant, it was observed
that it cannot be expected from plaintiff who was tenant that too
inducted prior to 4 years back with documents of authorization. As
discussed above, in present case the impugned notice is u/sec.354 A
and not u/sec.351 of MMC Act. The ongoing construction is in suit
premises which is in possession of plaintiff. Therefore, plaintiff can very
well explain about the authorization of the notice structure. The
observations in the cited case therefore, can be clearly distinguished.
The observations in the cited case for aforesaid discussion will not help
plaintiff.
13. As discussed above, plaintiff failed to substantiate prima-
facie the authorization of notice structure . Therefore, it cannot be
concluded that plaintiff has made out prima-facie case.
14. As plaintiff failed to make out prima-facie case, both the
other factors do not tilt in favour of plaintiff. Therefore, the factors of
balance of convenience and irreparable loss are also not in favour of
plaintiff. Therefore, I answer point No.1 to 3 in negative.
15. Having arrived at aforesaid findings, the notice of motion
of plaintiff deserves to be dismissed. Accordingly, I proceed to answer
point No.4 by following order
ORDER
1. Notice of Motion No.2799/2019 is hereby dismissed.
2. Costs in cause.
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3. Notice of Motion No.2799/2019 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 11.12.2020 City Civil Court, Gr. Bombay
Directly Dictated on Com :11.12.2020.
Checked on :16.12.2020.
Signed on :17.12.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.12.2020, 12.39 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
11.12.2020
JUDGMENT/ORDER signed by P.O.
on
17.12.2020
JUDGMENT/ORDER uploaded on 21.12.2020.
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