Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int Order on NM-3414-19 SU-2434-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF IN
NOTICE OF MOTION NO. 3414 OF 2019
(CNR no. MHCC010093232019)
IN
SUIT NO. 2434 OF 2019
(CNR no. MHCC010091782019)
Sushila Rajaram Patil ]
Age : 75 years, Occ.: Retired Senior Citizen ]
having commerical gala at T. G. No.92, ]
Opposite Mulund Darshan Building, ]
Zulelal Road, Guru Govind Sing Marg, ]
Mulund Colony, Mulund (W), Mumbai82. ]... Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai, ]
a body Corporate Governed by the provisions ]
BMC Act, through its Assistant Commissioner, ]
Devi Dayal Marg, T Ward, Mulund, Mumbai80. ]....Defendants
Appearances:
Ld. Advocate Mr. Suraj Kudalkar for the Plaintiff.
Ld. Advocate Mrs. Hajare defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 8)
DATED : 16th October, 2019
O R A L O R D E R
1. Perused plaint, notice of motion and documents annexed to
the plaint, documents filed by the defendant/MCGM and heard both
sides. The plaintiff has challenged notice dated 17.06.2019 purported to
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be under Section 351 of Mumbai Municipal Corporation Act,1888
(hereinafter "MMC Act") in respect of alleged unauthorized vertical
extension to the existing structure by using brick masonry wall, ladi
coba and cement sheet situated at T.G. No.92, Opposite Mulund
Darshan Building, Zulelal Road, Guru Govind Sing Marg, Mulund
Colony, Mulund(W), Mumbai 400082 without permission of
Competent Authority roof admeasuring as shown in the sketch. Ld.
Advocate for the plaintiff has submitted that said notice was allegedly
given to one Ashfak who has no concern with the plaintiff and it is
burden on the defendant/MCGM to prove that said Ashfak was present
at the suit premises on that date and received the notice on plaintiff’s
behalf. From perusal of the plaint, it can be seen that the plaintiff has
let out the suit premises to two persons namely Sangita Kishor Rajput
(ground floor) and Vishal Rajkumar Mahajan (upper floor). In this
backdrop, the plaintiff should have filed affidavits of both these persons
to establish that no person having name Ashfak was working in the suit
premises on the relevant date. The burden is upon the plaintiff to
establish her case but she has failed.
2. Moreover, it is pertinent to note that the notice under Section 351
of MMC Act is given to vertical extension to the existing structure which
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means the notice is not given to the whole structure but to the vertical
extension. Therefore, the receipts of Municipal Corporation in 198283,
198485, 198586, 198687 showing existence of “A.C. Shed” clearly
speak that this was a single storied structure at that time. The plaintiff
has not filed on record any document showing authorization of vertical
extension to the ground floor structure.
3. According to Ld. Advocate for the plaintiff, the suit premises is in
existence prior to 1962. However, in reply to the show cause notice vide
letter dated 31.08.2019, the plaintiff herself has contended that her
husband constructed commercial galas in 1980. Therefore, there is no
substance in the contention that the suit premises is in existence prior to
1962. For all the above reasons the plaintiff has failed to prima facie
establish that the vertical extension to the suit premises is authorized or
tolerated or protected by policy of defendant/MCGM. Hence adinterim
relief is rejected and following order:
ORDER
1. Adinterim relief is rejected.
sd/
(C. V. Marathe)
Judge,
Date : 16.10.2019 City Civil Court, Gr. Mumbai.
Dictated on : 16.10.2019
Transcribed on : 16.10.2019
Signed by HHJ on : 16.10.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 19.10.2019 at 1.42 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
16/10/2019
JUDGMENT/ORDER signed by
P.O. on
16/10/2019
JUDGMENT/ORDER uploaded
on
19/10/2019
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