Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 335119 IN SU 236319
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO.3351 OF 2019
IN
L.C. SUIT NO.2363 OF 2019
The Kurla Dawoodi Bohra ]
Masjid & Kabristan Trust ]...Plaintiffs
Versus
The Municipal Corpn. of Gr. Mumbai ]...Defendant
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 17th September, 2019.
Mr. B.P. Shukla, Advocate for Plaintiffs.
Ms. Chavan, Advocate for defendant/B.M.C.
O R A L O R D E R
1. The plaintiff has sought adinterim relief in terms of prayer
Clause (a) to restrain defendant from acting against the Patra covered
terrace with M.S. Angle and Patra sheet roof, measuring 18.30 Meters x
21.50 Meters, on the building called "Zainee Complex".
2. Earlier in this case the plaintiff has taken out a Draft Notice of
Motion. After considering the submissions, adinterim relief was
granted with direction to the defendant to decide the representation
filed by the plaintiff and to pass order thereon holding that what was
challenged at that time was not an order but was a notice.
3. While granting adinterim relief in Order dated 29.8.2018 this
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Court has clearly observed that in the plaint in L.C.Suit No.542/2017
there is no reference to a terrace shed made up of M.S. angles and G.I.
Pipes in the description of the building known as "Zainee Complex".
Prima facie, this Court had concluded that the Patra covered terrace with
M.S. Angles and G.I. pipes is a recent development attracting the
provisions of M.R.T.P. Act.
4. Today the plaintiff has tendered on record a copy of Notice dated
20.5.2015 issued under Section 353B of the MMC Act, a copy of
Structural Audit Report and a letter by defendant Corporation.
5. Relying upon the observations in the Structural Audit Report the
Advocate for plaintiff submitted that, the terrace covered with tin sheet
was existing when the Structural Audit Report was carried out in
pursuance to the notice issued in May, 2015. It was submitted to the
defendant and accordingly the defendant has, by a letter dated
29.3.2016 has allowed the plaintiff to carry out repairs as suggested in
the Structural Audit Report.
6. However, despite this fact, in the suit relating to the same building
filed in the year 2017 there is no reference to the existence of the terrace
sought to be protected by this Notice of Motion. Thus even prima facie,
it is clear that said terrace sought to be protected is nothing but a recent
development. Thus, neither the notice nor the order, prima facie can be
faulted with.
7. The reply, given by the plaintiff to the notice in present suit,
mentions that the terrace is the subject matter of Suit No.542/2017.
However, factually it is not. In such circumstances, even prima facie it
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can be concluded that the plaintiff has not come with clean hands before
the Court. In the totality of above discussion therefore, I hold that
plaintiff is not entitled to the adinterim relief as sought. Hence the
order:
ORDER
1. Adinterim relief sought is refused.
2. Defendant to file reply to the Notice of Motion No.3351 of 2019.
(A.N. MARE)
Judge,
17.09.2019 City Civil Court, Mumbai.
Dictated On : 17.09.2019
Transcribed on : 17.09.2019
HHJ Signed on : 18.09.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
18/09/19 10.50 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
17.09.2019
JUDGEMENT /ORDER signed by
P.O. on
18.09.2019
JUDGEMENT /ORDER uploaded on 18.09.2019
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