Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.3432/19 (LCS 1057/19)
MHCC010093612019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.3432 OF 2019
IN
LONG CAUSE SUIT No.1057/2019
Sanju s/o. Shidgonda Dodamani … Plaintiff
Versus
Municipal Corporation of
Greater Mumbai. ... Defendant
Appearance :
Mrs. S. S. Donde, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendant.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 05/06/2023.
O R D E R
. This is suit for perpetual injunction restraining defendant/
B.M.C., dispossessing the plaintiff from tenements bearing No.
307, building No.20, Kailash CHS Ltd., Shiv Shahi Punarvasan Prakalp,
Maharashtra Nagar, Mankhurd, Mumbai area admeasuring 225 Sq. Ft
(in short suit flat) without following due process of law and the plaintiff
has taken out this Notice of Motion for temporary injunction under
OrderXXXIX Rule1 of The Code of Civil Procedure.
-- 1 of 10 --
2 N/M No.3432/19 (LCS 1057/19)
2] In short, it is the case of the plaintiff that the plaintiff came
in possession of suit flat on the basis of allotment letter issued by
defendant/B.M.C. Suit flat has been allotted to the plaintiff in lieu of
old structure which is demolished by the Corporation. The original
structure of the plaintiff has been acquired by the Corporation and the
plaintiff has been given suit flat as permanent alternate accommodation
as per policy of the Government. It is further stated that the Corporation
had issued notice under Section 314 of The Mumbai Municipal
Corporation Act (in short the M.M.C. Act) and the plaintiff submitted
documents as per the said notice. It is further stated that the
Corporation verified documents and held the plaintiff eligible for
alternate accommodation and, accordingly, the Corporation allotted suit
flat to the plaintiff. It is further stated that on 6/4/2019 one of the
officers from M/East ward with two security guards came to suit flat
and threatened to dispossess the plaintiff.
3] It is further stated that suit flat has been allotted by the
Corporation and, therefore, it ought to have issued notice under Section
105B of the M.M.C. Act. However, without issuing notice the
Corporation threatened to dispossess the plaintiff. Therefore, the
plaintiff filed this suit for permanent injunction and taken out Notice of
Motion. The plaintiff has prima facie case. Balance of convenience lies in
favour of the plaintiff and if temporary injunction, as prayed is not
granted, the plaintiff will suffer irreparable loss or injury. Hence it is
prayed that Notice of Motion be allowed.
4] Defendant/Corporation opposed Notice of Motion by filing
replycumWritten Statement below exhibit2. At the outset, it is stated
that suit is not maintainable for want of statutory notice under Section
-- 2 of 10 --
3 N/M No.3432/19 (LCS 1057/19)
527 of the M.M.C. Act. Notice is administrative or executive act or order
and same is not open to challenge in a Court of law. The plaint discloses
no cause of action.
5] It is further stated that the plaintiff is not a Project Affected
Person (in short P.A.P.). On the contrary, the plaintiff is trying to
encroach upon suit flat on the basis of forged and fabricated documents.
The plaintiff has obtained interim order on the basis of forged and
fabricated documents. It is further stated that on 4/6/2013 B & F
department had received vacant possession of tenements of building
No.20, Shivshahi Punarvasan Prakalp, Mankhurd, Mumbai. It is further
stated that after receiving the plaint and documents defendant checked
record available in the office and surprised that suit flat has not been
allotted to any person and keys of flat are lying in the office of M/East
ward. The plaintiff is not in possession of suit flat. As such, the plaintiff
has made false statement. The plaintiff is not a P.A.P. and holder of
P.A.P. tenements. The plaintiff is claiming equitable relief of injunction
on the basis of fake and fabricated documents and suppressed material
facts, therefore, the plaintiff is not entitled for any relief.
6] It is further stated that Assistant Commissioner issued letter
dated 25/8/2021 to Assistant Engineer, Maintenance, G/South ward to
verify allotment letters relied by the plaintiff. By letter dated
15/11/2021 it is informed by Estate Officer, M/East ward that the
allotment letters and possession receipt are not as per the AnnexureII
of project at Dr. E. Mosses Road (L.L.) in G/South ward. It is further
stated that as per AnnexureII the plaintiff is not P.A.P. and allotment
letters and possession receipt are not issued by Assistant Engineer,
Maintenance, G/South ward. The name of the plaintiff is not in the
-- 3 of 10 --
4 N/M No.3432/19 (LCS 1057/19)
AnnexureII prepared in respect of road widening project of Dr. E.
Moses Road. It is further stated that the Corporation has never given
NOC for transferring electricity meter in favour of the plaintiff. It is
further stated that the documents filed by the plaintiff alongwith plaint
are fake and fabricated. The plaintiff is not entitled for relief of
temporary injunction. On these grounds, the Corporation prayed for
dismissal of Notice of Motion.
7] Points for determination alongwith findings thereon for the
reasons are as under :
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
:: R E A S O N S ::
AS TO POINTS No.1 TO 3 :
8] Learned advocate for the plaintiff submitted that the
plaintiff is in use, occupation and settled possession of suit flat since
2010. The plaintiff was residing at Dr. E. Moses Road and said structure
has been demolished by the Corporation for road widening project at
-- 4 of 10 --
5 N/M No.3432/19 (LCS 1057/19)
Dr. E. Moses Road. It is further submitted that the Corporation had
issued notice under Section 314 of the M.M.C. Act calling upon the
plaintiff to submit documents for deciding eligibility for alternate
accommodation. Accordingly, the plaintiff submitted necessary
documents and after verifying documents submitted by the plaintiff
defendant/Corporation allotted suit flat to the plaintiff as a P.A.P. vide
letter dated 15/2/2010. Learned advocate for the plaintiff relying on
photocopy of notice below exhibitA and allotment letters below
exhibitsB and C annexed to the plaint submitted that the plaintiff has
prima facie proved possession over suit flat. It is further submitted that
even the plaintiff is not having right, title and interest over suit flat, at
this stage, the plaintiff has proved his possession. In such circumstances,
the plaintiff cannot be dispossessed without following due process of
law. In support of submission learned advocate for the plaintiff relied
on the judgment of the Hon'ble Bombay High Court in the case of Abdul
Hasan Shaikh Mansuri Versus Mun. Corpn. of Mumbai [LAWS
(BOM)20073148 ] in which it is held that,
“The limited controversy that was required to be answered by the trial
Court for the nature of the dispute is whether the suit structure existed
on the site as claimed by the plaintiff and if so, the Authorities would be
obliged to take action against such structure only by following the due
process of law, which was the limited direction sought by the appellant.
In other words, the decision of the trial Court impugned in this appeal
cannot be sustained either on facts or in law. Same is therefore set aside
and instead the suit is decreed with direction to the respondents to doth
take any action in relation to the suit structure after following due
process of law”.
-- 5 of 10 --
6 N/M No.3432/19 (LCS 1057/19)
9] On the other hand, learned advocate for the Corporation
vehemently opposed Notice of Motion contending that the plaintiff is
not a project affected person and on the basis of fake and fabricated so
called notice under Section 314 of the M.M.C. Act and allotment letters
the plaintiff filed this suit and obtained adinterim protection. It is
further argued that the plaintiff has not come to the Court with clean
hands. As such, the plaintiff is not entitled for any relief. It is further
argued that signatures, outward numbers and the entire contents of
notice as well as allotment letters are false. It is further submitted that
the plaintiff has prepared fake and fabricated documents and claiming
possession over suit flat, therefore, the plaintiff is not entitled for relief
claimed.
10] The plaintiff has taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 of the C.P.C. Plaintiff is
seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
11] It is contention of the plaintiff that the plaintiff was
residing in structure at Dr. E. Moses Road and said structure was
affected by road widening project at Dr. E. Moses Road. The
-- 6 of 10 --
7 N/M No.3432/19 (LCS 1057/19)
Corporation had issued notice under Section 314 of the M.M.C. Act
calling upon the plaintiff to submit documents for deciding eligibility for
permanent alternate accommodation. Accordingly, the plaintiff
submitted documents and after verifying documents submitted by the
plaintiff he has been held eligible for permanent alternate
accommodation and, accordingly, the Corporation has allotted suit flat
to him.
12] In support of contention the plaintiff relied upon notice
issued by defendant under Section 314 of the M.M.C. Act and allotment
letters. On perusal of the notice under Section 314 of the M.M.C. Act, it
appears that notice has been issued on 9/8/2008 and allotment letter of
suit flat has been issued on 31/3/2010. Learned advocate for the
Corporation submitted that possession of suit flat has been received by
Assistant Engineer, Maintenance, M/East Ward on 4/6/2013 and it is
case of the plaintiff that suit flat has been allotted to the plaintiff in
2010. In that case, how it is possible that flat of which possession was
received by Assistant Engineer, Maintenance, M/East ward in 2013 has
been allotted to the plaintiff as a P.A.P in 2010.
13] On perusal of possession receipt dated 4/6/2013 produced
by defendant/B.M.C., it appears that Assistant Engineer, Maintenance,
M/East Ward has received possession of suit flat on 4/6/2013. I do not
understand how possession of suit flat was given in 2010 to the plaintiff
of which possession was received by the concerned ward office in 2013.
Thus, documents relied by the plaintiff appears to be doubtful. The
Corporation has denied claim of the plaintiff that he is a P.A.P. The
plaintiff has not produced copy of AnnexureII in support his contention
that he is a P.A.P. On the contrary, in the photocopy of AnnexureII
-- 7 of 10 --
8 N/M No.3432/19 (LCS 1057/19)
produced by defendant/B.M.C., name of the plaintiff does not find
place. As earlier stated, the documents relied by the plaintiff appear to
be doubtful. In the circumstances, the plaintiff ought to have produced
copy of AnnexureII showing his name in the list of eligible persons. The
plaintiff has not produced any other document to show that he was
residing at Dr. E. Moses Road.
14] On perusal of documents produced by defendant, it appears
that the plaintiff has failed to establish that he is a P.A.P. and suit flat
has been allotted as alternate accommodation in lieu of old structure at
Dr. E. Moses Road. Prima facie the notice allegedly issued under Section
314 of the M.M.C. Act exhibitA and allotment letters exhibitsB and C
annexed to the plaint appear to be doubtful.
15] The plaintiff has relied on judgment of the Hon'ble Bombay
High Court in Abdul Hasan Shaikh Mansuri Versus Mun. Corpn. of
Mumbai (supra) in which it is held that, “Municipal Authorities would
be obliged to take action against such structure. Hon'ble Apex Court in
Padhiyar Prahladji Chenaji (Deceased) Through L.R.s Versus
Maniben Jagmalbhai (Deceased) Through L.R.s and Ors. (Civil
Appeal No.1382 of 2022) held that, “Applying the law laid down by this
Court in the aforesaid decision to the facts of the case on hand and once
the rights of the parties are adjudicated and the defendant No.1 is held to
be the true owner on the basis of the registered sale deed and on payment
of full sale consideration, it can be said that due process of law has been
followed and thereafter the plaintiff is not entitled to any permanent
injunction against the true owner”. It is further held that, “Due process of
law means that nobody ought to be condemned unheard. The due process
of law means a person in settled possession will not be dispossessed except
-- 8 of 10 --
9 N/M No.3432/19 (LCS 1057/19)
by due process of law. Due process means an opportunity to the defendant
to file pleadings including written statement and documents before the
court of law ”.
16] In the case on hand, the plaintiff prima facie failed to
establish legal possession over suit flat. As such, the plaintiff is not
entitled for relief of injunction as prayed. In the circumstances, the
judgment relied by the plaintiff in the case of Abdul Hasan Shaikh
Mansuri Versus Mun. Corpn. of Mumbai (supra) is not helpful to the
plaintiff. As stated earlier, the alleged notice exhibitA and allotment
letters exhibitsB and C appear to be doubtful. Thus, I hold that the
plaintiff has miserably failed to establish legal possession over suit flat.
Moreover, in view of Padhiyar Prahladji Chenaji (Deceased) Through
L.R.s Versus Maniben Jagmalbhai (Deceased) Through L.R.s and Ors.
(supra) the plaintiff is not entitled for injunction as prayed against
defendant/B.M.C. who is owner of suit flat. The plaintiff has not made
out prima facie case for grant of injunction. Balance of convenience does
not tilt in favour of the plaintiff. No irreparable loss or injury would be
caused if injunction is refused. Accordingly, I answer points No.1 to 3 in
the negative and in answer to point No.4 pass following order :
O R D E R
Notice of Motion No.3432/2019 is dismissed.
Date : 05/06/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
-- 9 of 10 --
10 N/M No.3432/19 (LCS 1057/19)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
09/06/2023 03:00 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 05/06/2023
ORDER Typed on 08/06/2023
ORDER signed by P.O. on 09/06/2023
ORDER uploaded on 09/06/2023
-- 10 of 10 --