Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M. No. 2859 of 2019
CNR:MHCC01-007891-2019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION No. 2859 OF 2019
IN
L.C. SUIT No. 2152 OF 2019
Tabassum Noor Mohd. Batatawala .. Plaintiff
V/s.
The Municipal Corporation of
Greater Mumbai .. Defendant
Appearance:-
Adv. B. P. Shukla for plaintiff.
Adv. Chaitanya Dalvi for defendant/MCGM.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. S. ARADHYE
CITY CIVIL COURT, GR. BOMBAY
(C.R. No.05).
DATE : 16/01/2025.
ORDER
By this Notice of Motion, plaintiff is seeking the relief of
temporary injunction against the defendant that not to take any further
action in the form of demolition of suit premises i.e. room admeasuring
10’ x 75’, 6th floor made of B.M. wall and GI sheet roof, C.S. No. 688,
Ashoka House, 151, Narayan Dhuru Street, St. Chippi Chawl, Kalbadevi,
Mumbai:400 003(hereinafter referred to as the suit premises), in
pursuance of the notice Dtd. 05/10/2018 issued under Section 354(A)
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of MMC Act 1888 and order Dtd. 13/07/2019.
2. I have gone through the affidavit in support which is filed
by plaintiff and gone through the documents annexed with the plaint.
No reply is filed on behalf of defendant/MCGM. Heard both the sides.
3. It is the case of plaintiff that she is a tenant of suit premises
which is part and parcel of the building known as Ashoka House and
same is in existence since prior to datum line. It is further the
contention of plaintiff that she being a tenant of suit premises, landlord
has issued rent receipts in her favour from time to time and accordingly,
in the year 1963, as per the approved plan, building was repaired.
However, on the basis of some false complaint, defendant has issued
notice on 05/10/2018 under Section 354A of MMC Act 1888 and
passed the speaking order on 13/07/2019 without considering the reply
and documents placed for satisfaction. Therefore, she filed one suit
bearing No. 5699 of 2019 wherein the said notice was questioned and
in that proceeding, Court has given direction to the defendant to
consider the reply and documents furnished by plaintiff and then pass
afresh speaking order. In view of this direction, on 13/07/2019,
defendant has passed afresh speaking order which is now in question.
4. It is the simple contention of plaintiff that 1) the notice
issued by defendant is based on the false complaint of some interested
person and without verifying the true and correct facts of the case; 2) it
is also issued without, inspecting the suit premises and taking into
consideration reply and documents filed by her; 3) the order Dtd.
13/07/2019 is highly cryptic and non reasoned order upon which
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defendant cannot act upon; 4) defendant has not called any remarks
from the concerned authorities about verification of the factual situation
and thus, it is not sustainable in the eyes of law.
It is, therefore, lastly prayed by the plaintiff that defendant
may kindly be restrained from acting upon notice Dtd. 05/10/2018
issued under Section 354(A) of MMC Act 1888 and subsequent order
Dtd. 13/07/2019 till pending the hearing and final decision of the
present suit.
5. Admittedly, no reply is filed on behalf of defendant, so
without reply, Notice of Motion was proceeded. However, during the
course of arguments on behalf of defendant, submission is made that
fresh speaking order Dtd.13/07/2019 is passed by the competent
authority by taking into consideration all the facts, reply and documents
tendered by plaintiff, so one cannot say that it is baseless and without
having any force of law.
6. From the record, it reveals that when the notice Dtd.
05/10/2018 was issued, plaintiff firstly has filed her reply on
13/05/2019 to defendant and thereafter, filed the suit bearing No. 5699
of 2019 wherein the concerned officer of defendant has filed pursis Ex.3
and informed the Court that the reply of plaintiff would be considered
and then speaking order will be passed. In view of this pursis Ex.3,
Court has disposed off the Suit and Notice of Motion with further
direction to the defendant that to take into consideration reply of
plaintiff and after that, if any adverse order is passed against her, then
for the period of seven days, no coercive action be taken against the
notice structure/suit premises.
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7. Upon this direction, plaintiff has filed her reply alongwith
documents, rent receipts, approved plan and IOD. After that, on
13/07/2019, defendant has passed a fresh speaking order under
Section 354(A) of MMC Act 1888. It is pertinent to note that plaintiff
has filed the approved plan and rent receipts which prima facie show
that she is the tenant of suit premises and paying rent to the landlord. I
have perused the speaking order Dtd. 13/07/2019 in which the last but
one para says that “Since you had not submitted any documents to
above notice, it can be safely concluded that you have nothing to prove
that the notice portion is legal and not contrary to the provisions of
section 342 & 347 of MMC Act.” However, reply Dtd. 13/05/2019 is
itself speaking one wherein plaintiff has taken her stand to show that
how the notice and order in question are illegal. But considering last
but one para of the speaking order Dtd. 13/07/2019, it is evident that
without going through the reply and documents, defendant has passed
the fresh speaking order and tried to act upon it. Therefore, taking into
consideration the basic principles of granting injunction i.e. prima facie
case, balance of convenience and irreparable loss, I think, certainly is in
favour of plaintiff, so in view of peculiar fact that defendant has not
filed its reply, I am of the view that Notice of Motion deserves to be
allowed. In the result, following order is passed.
ORDER
1. Notice of motion No. 2859 of 2019 is Allowed.
2. Defendant is hereby restrained from proceeding further in
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respect of notice structure/suit premises on the basis of notice Dtd.
05.10.2018 and order Dtd. 13.07.2019 till pending the hearing and
final adjudication of this suit.
3. The Notice of motion is accordingly disposed of.
Date:16/01/2025. (R. S. Aradhye)
Dictated on :16/01/2025. Judge, City Civil Court,
Typed on :17/01/2025. Gr.Mumbai.
Signed on :18/01/2025.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
22/01/2025. 12.51 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. S. Aradhye
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
16/01/2025.
JUDGMENT/ORDER signed by P.O.on 18/01/2025.
JUDGMENT/ORDER uploaded on 22/01/2025.
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