Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3937-19 in Suit no.3248-2009
1 Date :31.01.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3937 OF 2019
IN
SUIT NO. 3248 OF 2009
(CNR MHCC01 0108422019 )
Shri. Ashok Keshav Karambelkar & Ors. .. Plaintiffs
Versus
Shri. Raghunath Keshav Karambelkar & Ors. .. Defendants
Appearances :
Adv.Vinit D.Jawle for plaintiff.
Adv.Ram Mohit h/f Adv.S.M.Shettigar for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 31.01.2020
ORDER
1. The plaintiff has filed instant Notice of Motion seeking
following reliefs :
a) That the pending of hearing and final disposal of the
suit the Court Receiver High Court Bombay or any
other fit and proper person be appointed the Court
Receiver of both the suit premises namely (I) Room
No. 3, on the Ground Floor of Chawl D/87B and (ii)
Room on the First Floor of Chawl D/87C with all
powers under Order 40, Rule 1 of the Code of Civil
Procedure 1908.
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b) Pending the hearing and final disposal of this suit
Defendants, their servants and agents be restrained by
an order and injunction of this Hon’ble Court from
carrying out any alteration and/or modification and /
or repairs of any anture whatsoever, in or upon both
the suit premises namely (I) Room No. 3, on the
Ground Floor, chawl D/87B and (ii) Room on the first
floor of Chawl D/87C.
c) This Hon’ble court be pleased to direct Defendants to
deposit in this Hon’ble Court the amount of the
property/water charges and monthly electrical bill for
both the suit premises namely (i) Room No. 3, on the
Ground Floor, Chawl D/87B and (ii) Room on the first
Floor of Chawl D/87C and on the defendants so
depositing the said taxes and charges the plaintiffs be
permitted to withdraw the same with the leave of this
Hon’ble Court.
d) That this Hon’ble Court be pleased to expedite the trail
of the suit as out of the eight plaintiffs abovenamed
two plaintiffs namely plaintiff No. 1 and 8 are over 65
years of age and as such are senior citizens and
plaintiffs nos. 2,4 and 7 are aged 60 years and above.
e) The defendants be ordered to pay the costs of this suit
to the plaintiffs.
f) for such other and further relief as may be required in
the circumstances of the case may require.
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2. It is the case of plaintiff that they have filed suit under
Section 6 of Specific Relief Act for recovery of possession of the
suit premises.
3. It is alleged by the plaintiff that on 02.12.2010, the day of
wedding of defendant no. 3 were busy in the wedding celebration
since 7.00 am. till 4.15 p.m. The defendant no. 3 aware and
taking advantage of the same, carried out illegal and unauthorised
work in the suit premises. It is contended by the plaintiff that on
02.12.2010 while leaving from their house, they installed two web
cameras facing towards the suit properties. When they came back
at 4.15 p.m. they found illegal / unauthorised works were carried
out in both the suit premises. The aforesaid clippings were
captured by the web cameras. It was noticed by them that the
defendants had tapped the M.C.G.M. water supply line coming
from the water meter no. MWU7910005 which is connected with
the suit premises of plaintiff no. 8 situated on ground floor by
breaking metal pipe line and connecting the new PVC pipeline to
the suit premises i.e. Room on 1st floor of Chawl D/87C and
installed new drainage pipe line on both the suit premises
connecting it to main drainage of M.C.G.M. It is contended by the
plaintiffs that the aforesaid act was done without the consent and
knowledge of the plaintiffs which are harmful and damage to both
the suit premises as the structure is a load bearing structure.
4. It is further contended that apart from the aforesaid
unauthorized work, the defendants have also carried out
construction of work of new toilet and W.C’s in the suit premises,
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installed new storage tank and unauthorised drainage pipeline. It
is submitted by the plaintiff that new toilets were never in
existence with the suit premises, situated at first floor Chawl No.
D/87C and the defendants constructed the new toilet which goes
to show that the aforesaid suit premises was being used by the
plaintiff as storage place and was never used as residential
premises as the suit premises had no toilet or water closet. The
plaintiff therefore, made complaint to the to the Police Station as
well as to the M.C.G.M. However, no action has been taken.
Therefore, the plaintiff filed instant Notice of Motion seeking
appointment of Court Receiver and further injunction against
defendant from carrying out any further alteration, modification,
repair in the suit premises.
5. It is submitted by the plaintiff that if present Notice of
Motion is not allowed they will suffer grave and irreparable harm
and injury to their interest in and upon the suit premises which
can not be compensated in terms of money. Therefore, plaintiff
prayed for allowing the present Notice of Motion.
6. The Notice of Motion is opposed by the defendants by filing
their say. It is submitted by the defendants that the suit property
in larger portion of the Pardi No. 3 of Village Chembur, Taluka
Kurla is the joint property of Karambelkar family. Since beginning,
suit property at first floor of Chawl D/87B was occupied by
defendant no. 3 and suit property Room No. 3 on ground floor was
occupied by defendant no. 4.
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7. It is specific allegation of defendant that suit premises
situated at first floor was at all material times having regular
pipeline. The plaintiff no. 1 and plaintiff no. 3 – Anant in the
absence of defendants removed the said pipeline which was
connected to the suit premises on the first floor from the ground
floor TJunction of water pipeline and thereafter sealed the
connection which was going on to the suit premises on the first
floor.
8. It is submitted by the defendants that son of plaintiff in order
to cause inconvenience had removed the water connection which
was going to the suit premises on the first floor. After getting
knowledge of mischief, the defendant again reconnected the same
water pipeline to the suit premises by removing seal which was put
by the son of the plaintiff on the ground floor. He only reconnect
the pipeline to the suit premises on the first floor.
9. It is specific defence of the defendant that, the drainage
pipeline was already in existence as it was old drainage causing
leakage in the ground floor and for proper and effective use of suit
premises, old drainage line was replaced with new PVC drainage
line. The defendant specifically denied that they constructed new
toilet and W.C. Thus, the defendant denied to carry out
unauthorised work. Thus, defendant prayed for dismissal of the
Notice of Motion.
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10. Heard both the sides. Perused Notice of Motion, reply and
rejoinder. The plaintiff filed suit under Section 6 of Specific Relief
Act. The plaintiff alleged that they were dispossessed by the
defendants. During pendency of the trial on the statement made
by the defendants, the Hon’ble High Court vide, order dated
25.08.2009 granted adinterim protection to the plaintiff whereby
the defendant restrained from creating any third party interest in
the suit premises. There are two suit premises, firstly on the
ground floor Room No. 3, Chawl No. D/87B and Room at First
Floor of Chawl No. D/87C. The plaintiff no. 8 is residing in the
ground floor above which the first floor is occupied by one the the
defendant. The plaintiffs alleged that on 02.12.2010 between 7.00
a.m. to 4.15 p.m., the defendants have carried out major repairs.
In order to support their allegation, the printout of Web Camera
captured on the relevant day is annexed by the plaintiff.
11. I have perused those photographs which clearly shows that
earlier there was no drainage and water pipeline connection to the
first floor of the suit premises which was subsequently installed.
The aforesaid conduct shows that the defendants have made
alteration in the suit premises without consent of the plaintiff and
without permission of the Court.
12. The plaintiff prayed for appointment of Court Receiver in
respect of suit premises. Under Order 40 Rule 1 the object of
appointing receiver is to protect, preserve, manage the property
during pendency of the suit. The power of the Court to appoint a
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receiver is subject to the controlling provision of Section 94, and is
to be exercised for preventing the ends of justice from being
defeated. The appointment of a receiver is recognized as one of
the harshest remedies which, the law provides for the enforcement
of rights and is allowed only in extreme cases and in circumstances
where the interest of the plaintiff are exposed to manifest peril. A
receiver is not to be appointed unless, there is some substantial
background for such an interference, such as, a well founded
apprehension that the suit property would be subjected to mischief
unless the Court appoints a Receiver.
13. In the present case there is no doubt that the defendant
made alteration in the suit premises but there is no evidence to
show that the suit premises would be subjected to mischief, if the
court receiver is not appointed. In my view, by granting injunction
against the defendants not to carry out further alteration,
modification and repair in the suit premises would suffice the ends
of justice. As far as regarding deposit of water and property
charges, there is no evidence quantifying the said amount. Hence,
it can not be considered at this stage. Thus, in my view, Notice
of Motion needs to be partly allowed. Thus, I proceed to pass the
following order :
ORDER
1. Notice of Motion No. 3937 of 2019 is hereby made absolute
in prayer clause (b), defendants, their servants and agents
are hereby restrained from carrying out any alteration,
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modification or repair of any nature whatsoever, in or upon
the suit premises without consent of the Court.
2. Prayer Clause (a) and (b) is hereby rejected.
3. Parties to bear cost of Notice of Motion.
4. Notice of Motion No. 3937 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 31.01.2020 Greater Bombay.
Dictated on : 31.01.2020
Typed on : 04.02.2020
Draft Submitted on : 06.02.2020
Checked on : 07.02.2020
Corrected on : 12.02.2020
Signed on : 12.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
13/02/2020 at 11.15 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
31/01/2020
JUDGMENT/ORDER signed by P.O.
on
12/02/2020
JUDGMENT/ORDER uploaded on 13/02/2020
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