Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.354919 IN SUIT No.314119
MHCC010096512019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3549 OF 2019
IN
SUIT NO. 3141 OF 2019
Giridhari Kushaldas Sukhwani ] ...Plaintiff.
Versus
MCGM & Others ]…Defendants.
Appearance:
Ld Advocate Lanke for Plaintiff.
Ld. Advocate Chandramore for Defendant No.1 & 2/MCGM.
Ld. Advocate Ameen Shaikh for Defendant No.4.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 07/11/2022
ORAL ORDER
1) Plaintiff has taken out present notice of motion for grant of
interim relief of temporary injunction restraining defendants No.3 and 4
from carrying out any construction at the suit shop and for interim relief of
mandatory injunction directing defendant Nos. 1, 2 and 5 to take action
against defendant No.3 and 4 for carrying out illegal construction.
2) Perused the notice of motion, affidavit in support of notice of
motion, affidavit in reply of defendant No.4, affidavit in rejoinder of the
plaintiff and record. Heard arguments advanced by Ld Advocate for plaintiff
and Ld Advocate for defendant No.1 and 2. Court has gone through the
written arguments submitted by defendant No.4.
-- 1 of 7 --
2 NM No.354919 IN SUIT No.314119
3) Ld Advocate for plaintiff argued that plaintiff is a trustee of
Bharati Sevak Sena a public Trust. The suit shop No.22 is purchased by the
Bharati Sevak Sena Trust and it is in possession of Trust. Plaintiff is the only
trustee of Bharati Sevak Sena Trust who is having interest in the Trust
property. Plaintiff has already tendered application on 27/7/18 for
incorporating names of the other trustees. Defendant No.3 is the contractor.
Defendant No.4 has started to carryout illegal construction in the suit
property. Defendant No.3 and 4 are intending to encroach the suit property.
Defendant No.4 has no concern with the suit property. Defendant No.3 and
4 are carrying out construction in the suit property without any authority.
Defendant No.4 in collusion with the defendant No.2 got notice issued from
the defendant No.1 and 2 dtd.2/8/19. Inspite of the complaint defendant
No.1 and 2 and 5 failed to take action against defendant No.3 and 4 for
carrying out illegal construction in the suit property. Therefore, plaintiff
prayed that notice of motion be made absolute.
4) On the other hand Ld Advocate for defendant No.1 and 2
argued that there is no collusion between the defendant No.1 and 2 and
defendant No.4. The allegations in the notice of motion are false. Therefore,
notice of motion be dismissed.
5) Court has gone through written notes of argument submitted by
defendant No.4. From the affidavit in reply and written notes of argument of
defendant No.4 it appears that it is the defence of defendant No.4 that
plaintiff was never trustee of Bharati Sevak Sena and he has no concern with
the suit property. Defendant No.4 is trustee and Secretary of Bharati Sevak
Sena Trust. The deed of conveyance filed by plaintiff reveals that it has been
endorsed by defendant No.4 on behalf of Bharati Sevak Sena and it was not
signed by the plaintiff. The plaintiff has no locus to file the present suit. The
Trust had received notice from MCGM informing that the suit property is in
dilapidated condition. Therefore, the Trust is carrying out repair work of the
suit property and Defendant No.4 being trustee of the Trust is authorized to
-- 2 of 7 --
3 NM No.354919 IN SUIT No.314119
look after the suit property. Plaintiff's application u/s.47 of Bombay Trust Act
was disposed off on 9/7/14 itself. The document at Exh.C to the plaint is a
fictitious document. Plaintiff had just attended a meeting in the year 1995 of
Bharati Sevak Sena as a special invitee. Only repairing work is carried out in
the suit premises. Plaintiff has no right or interest in the suit property.
6) Following points arise for determination and court has recorded
its decision thereon for the reasons stated there under:
Points Decision
(i) Whether prima facie case lies in favour of plaintiff ? No.
(ii) Whether balance of convenience lies in favour of
plaintiff ?
No.
(iii) Whether plaintiff will suffer irreparable loss if
Notice of Motion is not allowed ?
No.
(iv) What Order? As per final
order.
REASONS
As to Point No.1 to 3:
7) As point No.1 to 3 are interconnected with each other they are
decided simultaneously in order to avoid repetition of facts.
8) Plaintiff has filed the present suit for mandatory injunction
directing defendant Nos. 1 and 2 to demolish unauthorized construction
carried out by defendant Nos. 3 and 4 in the suit shop No.26 i.e. suit
property and for permanent injunction restraining defendant Nos. 3 and 4
from carrying out any reconstruction in the suit property and for mandatory
injunction directing defendant Nos. 1 and 2 to issue stop work notice to
defendant Nos. 3 and 4. Admittedly, the suit property belongs to Bharati
Sevak Sena Trust a public Trust. It is the case of plaintiff that he is the only
Trustee of Bharati Sevak Sena Trust who is having interest in the suit
-- 3 of 7 --
4 NM No.354919 IN SUIT No.314119
property of the said Trust and defendant No.4 has no concern with the suit
property. On the other hand, it is the contention of the defendant No.4 that
he is the trustee and Secretary of the said Trust and plaintiff was never
trustee of the above Trust and plaintiff has no right or interest in the suit
property. Therefore, the real controversy is whether the plaintiff or
defendant No.4 is the trustee of Bharati Sevak Sena Trust and whether
defendant No.4 is having authority to carryout any work in the suit property.
9) Therefore, in order to seek the equitable relief of temporary
injunction as sought it is necessary for the plaintiff to prima facie prove that
he is the trustee of Bharati Sevak Sena Trust and defendant No.4 has no
authority to deal with the suit property. From the matter on record it appears
that in document at Exh.C to the plaint only the name of plaintiff is reflected
as trustee of Bharati Sevak Sena Trust. Defendant No.4 denied above
document and alleged that it is ficititious document. The application for
change report itself is not sufficient to prima facie prove that plaintiff is the
trustee of the Bharati Sevak Sena Trust. Plaintiff has not produced any other
document from the office of the Charity Commissioner showing that his
name is reflected as trustee of Bharati Sevak Sena Trust. Admittedly,
defendant Nos. 1 and 2 vide notice dtd.2/8/19 had informed that the suit
property is in dilapidated condition and directed to take necessary action.
10) On the other hand from the documents filed by defendant No.4
alongwith his affidavit in reply it appears that defendant No.4 had filed the
change report reporting him as trustee on 22/1/12 in the office of Charity
Commissioner. The copy of minutes of the meeting of the Board of Trustees
held on 1/1/95 at Exh. E to the affidavit in reply reveals that name of
plaintiff is mentioned therein as invitee only. The letter at Exh. I reveals that
defendant No.4 is one of the authorized signatory of the account of Bharati
Sevak Sena Trust. As such prima facie it appears that defendant No.4 is
having some interest in suit trust and suit property. On the other hand, from
the matter on record prima facie the plaintiff failed to prove that he is
-- 4 of 7 --
5 NM No.354919 IN SUIT No.314119
trustee of Bharati Sevak Sena Trust and he is having any legal right or
interest in the suit property.
11) Moreover, from the affidavit in reply of defendant No.4 it
appears that the defendant has already carried out the work in the suit
property. The question whether plaintiff is trustee of suit Trust, the work
carried out in the suit premises is in the nature of repairs or it is in the
nature of construction which requires permission of the competent authority
also cannot be decided at this stage and it will have to be decided on merit.
Therefore, there appear no substance in the apprehension of plaintiff that
defendant Nos. 3 and 4 may carry any unauthorized construction in the suit
property. Therefore, at this stage it cannot be ascertained whether work
carried out in the suit property is unauthorized/illegal. It is settled
proposition of law that mandatory injunction at the interlocutory stage
should not be granted which has the effect of granting final relief. Therefore,
plaintiff failed to make out prima facie case. Moreover, considering the
nature of the suit and reliefs prayed balance of convenience also does not lie
in favour of plaintiff and plaintiff is not likely to suffer any irreparable loss if
the interim relief as sought are not granted. Mandatory interlocutory
injunctions are generally granted to preserve or restore the status quo when
there is strong prima facie case and when it is necessary to prevent
irreparable or serious injury and when balance of convenience lies in favour
of plaintiff. However, in the present matter plaintiff failed to prove that
strong prima facie case and balance of convenience lies in his favour.
Therefore, prima facie plaintiff is not entitled for mandatory interlocutory
injunction as prayed.
12) Considering the matter on record and above discussion court
hold that plaintiff failed to prove that prima facie case and balance of
convenience lies in his favour and he will suffer irreparable loss which
cannot be compensated in the terms of money if the interim reliefs as prayed
are not granted. Therefore, point Nos. 1 to 3 are answered in negative.
-- 5 of 7 --
6 NM No.354919 IN SUIT No.314119
AS TO POINT NO.4:
13) In view of negative findings as to point Nos. 1 to 3 present
notice of motion is liable to be dismissed. Therefore, court proceeds to pass
following order:
ORDER
1) Notice of Motion No. 3549 of 2019 is dismissed.
2) Notice of Motion No. 3549 of 2019 is disposed off accordingly.
Date : 07/11/2022. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :7/11/2022.
Typed on : 10/11/2022.
Checked on :10/11/2022.
Signed on:14/11/2022.
-- 6 of 7 --
7 NM No.354919 IN SUIT No.314119
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/11/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
7/11/2022
JUDGMENT/ORDER signed by P.O.
on
14/11/2022
JUDGMENT/ORDER uploaded on 16/11/2022
-- 7 of 7 --