Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3649-19 in Suit no.7818-1996
H.C.Suit No. 2443 of 1996
1 Date :30.01.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3649 OF 2019
IN
SUIT NO. 7818 OF 1996
H.C. SUIT NO. 2443 OF 1996
(CNR MHCC01 0099642019 )
Merwin Joseph fernandes .. Plaintiff
Versus
Dr. Eustic Fernandes & Ors. .. Defendants
Appearances :
Adv.G.C.Singh a/w Shweta Singh for plaintiff.
Adv.Mehezan Iran for defendant no.7(b),7(c) and 7(d1) to
7(d3) and 7(e).
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 30.01.2020
ORDER
1. The plaintiff has filed instant Notice of Motion seeking
following reliefs :
a) That this Hon’ble Court be pleased to allow / permit
the plaintiffs to repair / reconstruct the suit premises
viz. House no. 30, Chuim, Situtated at land bearing
City Survey No. D/978 admeasuring 119 sq. yards
equivalent to 99.5 sq. trs. Chuim Gaothan, Khar, Khar
(West), Mumbai – 400 052 pursuant to repair
permission granted by the A.E. (B & F) of HWest Ward
of Municipal Corporation of Greater Mumbai bearing
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H.C.Suit No. 2443 of 1996
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No. ACHW/444/SR/AE(B)(F)2/FO100 dated
27.07.2019.
(b) Pending the hearing and final disposal of the Notice of
Motion, that this Hon’ble Court be pleased to restrain
the defendants their servants / agents / person /
persons claiming through or under them from in any
manner whatsoever obstructing and or interfering with
the repair / reconstruction of the suit premises viz.
House no. 30, Chuim, Situtated at land bearing City
Survey No. D/978 admeasuring 119 sq. yards
equivalent to 99.5 sq. trs. Chuim Gaothan, Khar, Khar
(West), Mumbai – 400 052, pursuant to repair
permission granted by the A.E. (B & F) of Hwest Ward
of Municipal Corporation of Greater Mumbai bearing
No. ACHW / 444 / SR / AE (B) (F) 2 / FO 100 dated
27.07.2019, or any part thereof in any manner
whatsoever.
c) Pending the hearing and final disposal of the Notice of
Motion, that this Hon’ble Court be pleased to restrain
the defendants their servants/ agents/ person /
persons claiming through or under them from in any
matter whatsoever obstructing and or interfering with
the structural audit of the suit premises viz. House no.
30, Chuim, Situtated at land bearing City Survey No.
D/978 admeasuring 119 sq. yards equivalent to 99.5
sq. trs. Chuim Gaothan, Khar, Khar (West), Mumbai –
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400 052, pursuant to repair permission granted by the
A.E. (B & F) of Hwest Ward of Municipal Corporation
of Greater Mumbai bearing No. ACHW / 444 / SR / AE
(B) (F) 2 / FO 100 dated 27.07.2019, or any part
thereof in any manner whatsoever.
d) Interim and adinterim reliefs in terms of prayer clause
(a), (b) and (c) above be granted for.
e) Cost of Notice of Motion be provided for.
f) Such other and further relief as the nature and
circumstances of the case may require and this Hon’ble
Court may deem fit and proper be granted for.
2. It is contended by the plaintiffs that they have filed suit for
declaration of ownership by adverse possession and injunction
against defendants. It is contended by the plaintiffs that they are
residing in the suit property bearing House no. 30, Chuim,
Situtated at land bearing City Survey No. D/978 admeasuring 119
sq. yards equivalent to 99.5 sq. trs. Chuim Gaothan, Khar, Khar
(West), Mumbai – 400 052(hereinafter shall be referred to as Suit
house).
3. The aforesaid structure is very old structure. During
pendency of the suit due to heavy rain on 26.07.2019 large portion
of wall collapse. Therefore, on 27.07.2019, they are in receipt of
notice from Municipal Corporation, whereby they are called upon
to repair / reconstruct the suit house structure. It is further
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contended that vide, another letter dated 27.07.2019 issued by
Municipal Corporation, they are called to carry out Structural
Audit of the suit house through licensed structural audit within a
period of 30 days from the receipt of the notice. Thus, plaintiff
contended that the suit premises is very old and it require
immediate repair otherwise it may further collapse and may cause
harm to the passer by. Therefore, plaintiff prayed for allowing
present Notice of Motion.
4. The Notice of Motion is opposed by defendant no. 7(a) to (e)
by filing their say. It is submitted by the defendants that plaintiffs
have not come with clean hands before the Court. The plaintiff
did not disclose that they are residing in adjoining Cottage No.
30/A on the property bearing City Survey No. D/979 situated at
30/A, Chuim Gaothan, Khar (West), Mumbai – 400 052. It is
further submitted that the plaintiffs did not disclose that they have
protected walls of the suit house by iron sheets and at present
there is no danger as such to the passer by. The defendant further
submitted that they are the recorded owners of the suit house.
However, plaintiffs in order to create evidence, by manipulation
obtained alleged notice from Municipal Corporation. The
defendant being recorded owner of the suit house did no receive
such notice. Hence, defendants prayed for rejection of Notice of
Motion.
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5. Heard both the sides. Perused Notice of Motion and reply.
The plaintiff filed instant suit for declaration of ownership of suit
house by adverse possession. The plaintiffs initially filed suit no.
2443 of 1996 before Hon’ble High Court for repair to the suit
house. The Hon’ble High Court appointed Commissioner and
Commissioner on 19.06.2000 gave his report which clearly pointed
out that the suit house is indilapidated condition since then and
not suitable for human habitation. The Hon’ble High Court vide,
its letter dated 20.06.2000 granted permission to the plaintiff to
carry out necessary repairs. It appears that inspite of that they
have not carried out any repair. Thus, the contention of the
plaintiff that wall of suit house is collapse recently and urgent
repairs are required is not appealing.
6. The plaintiffs in the present Notice of Motion specifically
contended that they are residing in the suit house. Whereas
during crossexamination, which was conducted on 15.06.2019,
PW.1 specifically deposed that they are not residing in the suit
house and residing at adjoining Cottage No. 30/A on the property
bearing City Survey No. D/979 situated at 30/A, Chuim Gaothan,
Khar (West), Mumbai – 400 052. PW.1 further deposed that suit
house is dilapidated condition since 1996 as it is mud structure
and plaster of its walls at various places have come down. The
defendants alongwith their reply also attached photographs which
shows that the plaintiffs covered the suit house by putting iron
sheets. The aforesaid fact had not been denied and not disclosed
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by the plaintiffs. The aforesaid conduct of the plaintiffs shows that
they have not come up before Court with clean hands and under
garb of notice issued by the Municipal Corporation, they are
willing to reconstruct the entire suit property. Hence, in my view,
on this count alone, the present Notice of Motion needs to be
dismissed with cost. Thus, I proceed to pass the following order :
ORDER
1. Notice of Motion No. 3649 of 2019 is hereby dismissed with
cost.
2. Notice of Motion No. 3649 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 30.01.2020 Greater Bombay.
Dictated on : 30.01.2020
Typed on : 30.01.2020
Draft Submitted on : 30.01.2020
Checked on : 03.02.2020
Signed on : 03.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
05/01/2020 at 11.30 a.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
30/01/2020
JUDGMENT/ORDER signed by P.O.
on
03/02/2020
JUDGMENT/ORDER uploaded on 05/02/2020
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H.C.Suit No. 2443 of 1996
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