Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion NO. 2456 of 2018
In
L.C.Suit No.1889 of 2017
MHCC010079482018
Hariram Parmanand Mishra ..Plaintiff
V/s
The Municipal Corporation of Gr. Mumbai ..Defendant
& Anr.
Advocate Santosh Singh for plaintiff
Advocate Giri for defendant/MMC
Advocate Harshad Sathe for defendant no.2
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 5th January, 2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this notice of motion for the
following reliefs:
a) That this Hon'ble Court be pleased to restrain the
defendant no.2 for interfering in the installation of electricity
meter connection of Pan Bidi shop of outer corner of tandoor bar
Restaurant near barka cinema compound, Manmala tank Road,
Mahim, Mumbai.
b) In the alternative the defendant no.2 be directed to assist the
electricity officer of BEST for installation of the electricity meter
for implementation of order of the indepent meter connection to
the suit premises.
c) In case of the further interference and obstruction
by the defendant No.2, the Shivaji Park local police be
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directed to assist the BEST officer for installation and
implementation of meter contention to the suit premises.
2 Facts in brief are as under:
Plaintiff is running the business of Pan Bidi under the
name and style of 'Shiv Bhole' Pan Bhandar is in a premises
admeasuring 4. 12 M2. in the outer front corner of tandoor Dance Bar
Restaurant at Matunga (West) Manmala Tank Road, Mumbai 400 016.
Plaintiff is in possession of the said shop from the year 1977. Plaintiff
has obtained necessary licenses from the defendant Municipal
Corporation. Plaintiff pays the taxes to the defendant no.1. Plaintiff has
election card, Adhar card, residence proof at the address of the
premises.
3 Earlier Mrs. Praptiben Mehta was the owner of the
building wherein the suit premises is situated. Mrs. Praptiben Mehta
gave no objection to the Municipal Corporation to run the business of
the plaintiff. Thereafter, defendant no.2 acquired the building.
However, still plaintiff is conducting his business.
4 There is a dispute between the plaintiff and defendant
no.2. Plaintiff has filed complaint against the defendant no.2 in local
police station and non cognizable case is registered against the
defendant no.2. However, police directed the plaintiff to seek redress
from the civil court. The defendant no.2 has disconnected the electric
supply of the shop of the plaintiff few months back and he also denying
to install the new meter. The officer of the defendant no.1 intending to
take action on the basis of the false complaint filed by defendant no.2.
Thus, it is necessary to direct the defendant no.1 to follow the due
process of law.
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5 Plaintiff further stated that defendant no.2 had
disconnected the electric supply and therefore he had approached the
authority of BEST. However, defendant no.2 is making hindrance in
installation of new meter. Plaintiff is the senior citizen. His livelihood is
depend upon the said small shop. Therefore it is necessary to install the
new electric meter in the suit premises to run the business safely.
Accordingly, plaintiff prayed to allow the notice of motion.
6 Notice is served to defendants. Defendants did not file
their reply.
7 I have heard Ld advocate Santosh Singh for plaintiff,
G.O.Giri advocate for defendant/BMC and Harshad Sathe advocate for
defendant no.2
8 Shri Santosh Singh advocate for plaintiff has submitted
that plaintiff is running his business in the suit premises since 1977.
Earlier owner/landlord Mrs.Praptiben Mehta has given no objection to
run his business. Plaintiff has obtained necessary license from the
defendant corporation. Plaintiff has ration card, Adhar card, Election
Identity card at the address of suit premises. Defendant no.2 acquired
the premises and he started to harass the plaintiff. Defendant no.2 has
cut off the electric supply of the plaintiff. Due to this inconvenience is
causing to the plaintiff. Further defendant no.2 did not allow the
concern authorities to install the new electricity meter. He has invited
my attention towards the documents. According to him, plaintiff has
paid taxes and license fee to the defendant no.1. Due to the
disconnection of electric supply by defendant inconvenience is causing
to the plaintiff. Therefore, it is necessary to install the electric meter in
the suit premises. He prayed to allow the notice of motion.
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9 Shri Harshad Sathe advocate for defendant no.2 has
submitted that plaintiff in the present notice of motion has not sought
any relief against the defendant/corporation. This court has no
jurisdiction to grant the relief as prayed in the notice of motion.
Plaintiff has an remedy to approach to the Small Cause Court, Mumbai.
Hence, he prayed to dismiss the notice of motion.
10 Here in the present suit as discussed above defendants did
not file their reply. Plaintiff has come with a specific case that he is in
possession of the suit premises from 1977. Earlier owner Mrs.Praptiben
Mehta has given no objection to the plaintiff to run the business.
Accordingly, plaintiff has obtained necessary licenses to run his Pan
Bidi shop. Plaintiff has identity card, ration card etc on the address of
the suit premises. Defendant no.2 acquired the premises and started to
harass the plaintiff. Defendant no.2 is disconnected the electric supply
now he is not consenting to take new electric supply.
11 Therefore, the burden is on the plaintiff to prove prima
facie case, balance of convenience and irreparable loss in case of refual
of injunction. From the perusal of documents it appears that plaintiff
has licenses to run Pan bidi shop. Plaintiff has also ration card, election
identity card on the address of suit premises. Plaintiff pays taxes to the
defendant. However, there is no any document to show that defendant
no. 2 had supplied the electric connection to the plaintiff. It is to be
noted that plaintiff has not come with a case that defendant no.2 is a
landlord and he is tenant of the suit premises. Only contention of the
plaintiff is that defendant no.2 is the owner of building and plaintiff
runs his Pan bidi shop in the said building. Thus, plaintiff has not
shown his status of occupation of the premises.
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12 Obviously, the consent of defendant no.2 is necessary for
taking electric supply in the premises because he is owner of the
building. However, it appears that there is a dispute between plaintiff
and defendant no.2. The plaintiff had also filed complaint against
defendant no.2 in the police station and N.C. case is registered against
the defendant no.2.
13 The plaintiff in the present suit has stated that defendant
no.2 filed complaint against the plaintiff to defendant no.1 and
defendant no.1 is taking action without following the due process of
law. By this suit plaintiff prayed to direct defendant no.1 to follow the
due process of law. However, plaintiff has not produced any complaint
filed by defendant no.2 to defendant no.1. Therefore in such a
circumstances, it is doubtful whether plaintiff is entitled for main relief.
As plaintiff is not entitled for main relief hence he is not entitled for
ancillary relief.
14 As discussed above , plaintiff at this stage failed to prove
that he has prima facie case and balance of convenience lies in his
favour. Therefore, this court cannot direct the concerned authorities to
install the electric meter in the suit premises where the defendant no.2,
owner of the building has raised objection for the said. Hence, in such a
circumstances, I find that plaintiff is not entitled for the relief as
sought. The notice of motion is devoid of merit. Hence the following
order:
ORDER
1 Notice of Motion no. 2456/2018 is hereby dismissed
with costs.
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2 Notice of motion is disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 5/01/2019
Typed on : 5/01/2019
Signed by HHJ. :8/1/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
11/1/2019 S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
5/01/2019
JUDGEMENT/ORDER signed by
P.O. on
8/01/2019
JUDGEMENT/ORDER uploaded
on
11/01/2019
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