Order 1

Order Details: Notice of Motion
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IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
DRAFT NOTICE OF MOTION
IN
SUIT NO.2326 OF 2019
1. Yasain Adambhai Ali Mamda & Ors. ]....Plaintiffs.
Versus
The Municipal Corporation of Gr. Bombay.]... Defendant
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 23rd August, 2019.
Ms. Megha Shigavan, Advocate for plaintiff.
Mr. Giri Advocate for Defendant/M.C.G.M.
ORAL ORDER
1. The plaintiffs have sought adinterim relief to restrain the
defendant from obstructing implementation of repair permission and
from implementing impugned Notice issued under Section 354A of the
MMC Act. Relief is also sought for appointment of Structural Engineer
from the panel of this Court to supervise and monitor repair work
carried out by the plaintiffs.
2. In brief plaintiff's case is that, plaintiff Nos. 1 to 4 are the tenants
and plaintiff No.5 is the owner and landlord of one Fatimabai House
having Ground + upper floors near Mehboob Subhani Sasjid, New Mill
Road, Kurla (West), Mumbai (hereinafter to be referred as the "Suit
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Premises"). The defendant has issued a notice dated 08.12.2018 under
Section 353(B) of the MMC Act and also revoked the repairs permission
vide notice dated 3.6.2019. The acts of defendants are illegal. On
20.8.2019 and 21.8.2019 the Officers of defendant started demolishing
the part repaired structure on first floor of the building. If the relief are
not granted the plaintiffs and their families will be constrained to reside
out of the building.
3. Perused. Heard.
4. The Advocate for plaintiff submitted certain photographs which
are taken on record and marked as Exh.X (Colly) for the purpose of
identification.
5. Advocate for plaintiff submitted that the structural Audit Report
requires the plastering of internal and external structure, partial
demolition and other repairs as suggested in the structural audit report.
Therefore, the permission was sought and was granted by the defendant.
The plaintiffs carried out the repairs however, defendant has wrongly
issued the notice under Section 354 and has wrongly demolished the
part of repaired first floor.
6. Advocate for defendant submitted that the photographs at Exh.X
clearly indicate violation of repairs permission and therefore, the
permission was revoked and action was taken in pursuance to notice
under Section 354A of the MMC Act.
7. The photographs produced at Exh.X reveal the old as well as
present structure. The old structure on first floor reveals existence of six
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windows or doors. The new structure however, reveals only three
openings on the first as well as second floor. Advocate for plaintiff fairly
submitted that the walls of first and second floor were of brick masonry.
However, the photographs produced at Exh.X reveal the walls of siporex
blocks. The photographs thus clearly indicate that the work carried out
on the first and second floor is not the work that was either suggested by
the structural Auditor or was allowed to be carried out by the defendant
vide its permission to repair. It is apparent from the photographs that
even at this prima facie stage the plaintiff's case is not acceptable that the
repairs are carried out as per permission.
8. There is nothing on record that the plaintiffs have ever replied the
impugned notice issued under Section 354A of the MMC Act. Therefore,
the action taken by the defendant to partially demolish first floor
structure is justified. Thus impugned notice is already implemented. In
such circumstances, I hold that the Adinterim injunction as sought in
prayer Clause (a) and (c) cannot be granted. The repairs permission is
not in existence as on date and so the injunction as sought cannot be
granted also on that count. When even at this prima facie stage it is
apparent that plaintiffs have acted in breach of the repairs permission,
the relief sought in prayer clause (b) of the Notice of Motion also cannot
be considered.
9. Considering circumstances and the conduct of the plaintiffs I hold
that they are in breach of principles of equity and thus are not entitled to
the adinterim relief as sought. Hence the order:
ORDER
1. Adinterim relief sought in terms of prayer clauses (a) to (c) is
rejected.
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2. Leave is granted to register the Notice of Motion.
Sd/
(A.N. MARE)
Judge,
23/08/2019 City Civil Court, Mumbai.
Dictated On : 23.08.2019
Transcribed on : 23.08.2019
HHJ Signed on : 23.08.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
23/08/19 06.10 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
23.08.2019
JUDGEMENT /ORDER signed by
P.O. on
23.08.2019
JUDGEMENT /ORDER uploaded
on
23.08.2019
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