Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. :MHCC01-007733-2018. Notice of Motion No. 2399/2018.
in L.C. Suit No. 2320/2017.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 2399 OF 2018.
IN
L.C. SUIT NO. 2320 OF 2017.
Ganesh Madhukar Sonawane …...……….. ….. PLAINTIFF.
V/s.
MCGM. ….........................................……. ….. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 27th April, 2023.
APPEARANCES :
Mr. Suraj S. Kudalkar, Ld. Advocate for the Plaintiff.
Mrs. Smita S. Chavan, Ld. Advocate for the Defendant.
*****
01. The plaintiff has taken out this Notice of Motion (for short
‘the NM’), for taking action against the concerned Officers of defendant,
for damaging the suit premises and for directing to pay him damages of
Rs. 90,000/- (Rs. Ninety thousand). Perused the NM, his accompanying
affidavit, the reply-cum-written statement of the defendant, the notes of
common written submissions of the parties on this NM and the record.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in his favour ? ….............................. …No.
(ii). Whether balance of convenience lies in
favour of the plaintiff ? …........................ ... No.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted ?.................... … No.
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CNR NO. :MHCC01-007733-2018. Notice of Motion No. 2399/2018.
in L.C. Suit No. 2320/2017.
(iv). What Order ? …..............….................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for a joint discussion. By this NM, the only anxiety
of the plaintiff is to bring on record that without having the authority
and unlawfully, the defendant damaged the suit premises and therefore,
it is necessary to take action against the concerned. He is also asking for
damages of Rs.90,000/- (Rs. Ninety thousand) against the said activities
of demolition. The defendant resisted this NM and contended that after
issuing this notice, as the plaintiff did not reply the same, the Speaking
Order followed. Moreover, firstly, on 20.09.2017 and later on, finally on
13.10.2017, the said structure was demolished. At this stage, it is worth
notable that by filing this suit, the plaintiff only assailed the notice and
till date, he didn’t bother to incorporate the passing of Speaking Order
in the plaint. Nor, he prayed for relief of damages in this suit. Needless
to say that the interim reliefs are meant to advance the reliefs claimed
on trial and as no such reliefs are prayed in the suit itself, prima-facie,
this NM is not maintainable. That apart, although the reliefs in this NM
are claimed in the form of mandatory nature, as on today, the plaintiff is
yet to establish his contentions, which would certainly require the trial.
Hence also, the reliefs, as asked for, can not be considered at this stage.
For this proposition, the defendant rightly relied on the case of Balram
Singh V. Kelo Devi, in Civil Appeal No. 6733/2022, dtd. 23.09.2022. On
this background, I am of the opinion that at this juncture, he could not
present the
prima-facie case in his favour and balance of convenience
doesn't tilt in his side. More so, non-granting of this interim relief would
not cause an irreparable loss to him. Hence, I answered point Nos. 1 to
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CNR NO. :MHCC01-007733-2018. Notice of Motion No. 2399/2018.
in L.C. Suit No. 2320/2017.
3 in the negative and to answer point No. 4, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 2399/2018 stands dismissed.
(ii). Notice of Motion No. 2399/2018 is, accordingly, disposed
of.
{A.G. Santani}
Mumbai. Judge,
Dated : 27.04.2023. City Civil Court, Mumbai.
Dictated on : 27.04.2023.
Transcribed on : 02.05.2023.
Checked and Signed on : 06.05.2023.
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CNR NO. :MHCC01-007733-2018. Notice of Motion No. 2399/2018.
in L.C. Suit No. 2320/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
08.05.2023 at 3.20 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 27.04.2023.
Judgment/Order signed by P.O. on 06.05.2023.
Judgment/Order uploaded on 08.05.2023.
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