Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.2419 OF 2018
IN
LONG CAUSE SUIT NO.1440 OF 2018
Mr.Ramesh Shetty S/o.Sadashiv Shetty
Aged about 63 of years,
of Bombay adult, Indian Inhabitant,
residing at Flat No.603/604,situated at
Trishul Ganga CHS Ltd.,Sindhi Socy.,
Chembur, Mumbai400 071 ....Plaintiff
V/s.
1. Trishul Ganga CHS Limited
A society incorporated under the provisions
of Maharashtra Cooperative Societies Act
Having their office at Plot No.3 CTS/128(PART)
Sindhi Socy.Road no.8, Chembur,Mumbai71.
2. MUNICIPAL CORPORATION OF
GREATER MUMBAI,
A Body inforporated under the provisions of
MMC Act having its office at Mahapalika
Bhavan,Mahapalika Marg,Mumbai400 001
Through Asst.Municipal Commissioner
M West Ward,Chembur, Mumbai. ....Defendants
Appearances:
Ld. Advocate Mr.Ravindra Singh for the Plaintiff.
Ld. Advocate Mrs.Vyavhare for defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
C.R.No.8
DATED : 17th November, 2018
ORAL ORDER
1. This is an application by Notice of Motion under O.XXXIX R.1 of
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The Code of Civil Procedure, 1908.
The plaintiff's case in nutshell is as under:
2. The plaintiff is the owner and in possession of two flats No.603
and 604 in Trishul Ganga CHS Limited, Sindhi Society, Road No.8,
Chembur, Mumbai400 071 (hereinafter referred to as "the suit flats"
for brevity).
3. The suit flats are situated on the top floor of the building and due
to neglect to carry out any repairs to the terrace of the said building, the
seepage of water from the terrace to the suit flats continued. The
plaintiff attempted to get repairs done from the defendant no.1 society
but his attempts failed. Therefore, he has prayed for temporary
mandatory order directing the defendant no.2 Corporation to take
necessary action against defendant no.1 society for their failure to carry
out repairs in respect of the terrace of the building and in the
alternative direct defendant no.1 to forthwith carry out necessary
repairs of the terrace and grant necessary liberty to the plaintiff to
carry out necessary repairs to the terrace and/or install necessary
temporary weather shed upon the terrace and claim reimbursement of
the amounts spent for the same from defendant no.1.
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4. Defendant no.2 has replied contending that the mandatory
injunction in the form applied for cannot be granted and no prima facie
case is made out by the plaintiff.
5. Considering the rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:
Sr.No. POINTS FINDINGS
1. Whether the defendant is entitled for
relief of mandatory temporary
injunction against defendant no.2
Corporation as prayed.?
In the negative
2. Whether the plaintiff is entitled for
other reliefs.?
In the negative
3. What order ? Notice of motion is
dismissed.
REASONS
AS TO POINT NOS.1 & 2:
6. By way instant Notice of Motion, the plaintiff, owner of top floor
flats No.603 and 604, has raised grievance that the defendant no.1
society, which is owner of entire building having name "Trishul Ganga
CHS Ltd.," is not taking care of the terrace due to which there is
leakage of water damaging the suit flats. The plaintiff further alleges
that the defendant no.2, a local authority, is also not passing any order
on his complaint dated 23/07/2012 against defendant no.1 and
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therefore the temporary mandating injunction is sought.
7. The first thing in all the applicant has to show is that there is in
question the duty enforceable by law or, in other words, since duty is
corelated with rights that there is legal right it has been violated or
threatened by the defendant. The existence of right violated is pre
requisite to the granting of an injunction, and, whether it is clear that
the complainant does not have right that he claims, he is not entitled for
injunction, either temporary or perpetual. In this matter, plaintiff's
right to get terrace repaired is against defendant no.1. The plaintiff is
praying for direction to the defendant no.2 to take necessary action
against defendant no.1 society for not carrying out such repairs. The
defendant no.2 Corporation is a local authority having power to take
action in accordance with the provisions of MMC Act,1888 and the
rules, if any, made there under. If the said authority acts illegally or
does not follow due process of law, then Civil Suit against the same is
maintainable. In this matter, the plaintiff is not alleging that the
defendant no.2 Corporation has not passed any order on his complaint
illegally. Mere inaction of the defendant no.2 Corporation does not give
right to the plaintiff to claim mandatory injunction. Therefore, the
prayer clause(a) first part claiming relief of temporary mandatory
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injunction against defendant no.2 cannot be granted.
8. Under Section 499 of MMC Act the occupants of any premises are
entitled to execute required work and recover expenses from the owner
if the latter fails to execute such work. In this matter, the plaintiff has
not followed such procedure laid down in Section 499(2) of MMC Act
by seeking approval of defendant no.2 Corporation for executing such
work. Therefore, relief interms of alternative prayer also cannot be
given to the plaintiff. For the reasons given above, the Notice of Motion
fails. Hence, the order.
ORDER
Notice of Motion No.2419 of 2018 is dismissed.
(C.V.MARATHE)
DATE: 17/11/2018 JUDGE
CITY CIVIL COURT
GRATER MUMBAI
Dictated on : 17.11.2018
Transcribed on : 19.11.2018
Signed on : 22.11.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
22.11.2018 at 12.45 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI C.V.MARATHE
(C.R. NO.08)
Date of Pronouncement of
JUDGMENT/ ORDER
17.11.2018
JUDGMENT/ORDER signed by P.O.
on
22.11.2018
JUDGMENT/ORDER uploaded on 22.11.2018
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