Final Order 2

Order Details: Notice of Motion
Pdf Text: N.M.No.3983 of 2019 Order
MHCC010110182019 Presented on : 01.11.2019
Registered on : 01.11.2019
Decided on : 13.08.2024
Duration : 04 09 12
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
NOTICE OF MOTION NO.3983 OF 2019
IN
SHORT CAUSE SUIT NO.3142 OF 2019
(CNR NO. MHCC010110182019)
Shri. Amit Bajirao Rokade
Age 43 years, Hindu, Indian Inhabitant,
residing at 114, Rokad Niwas, M. N. Road,
Kurla (West), Mumbai - 400070 ... Plaintiff
Versus
Javed Ismail Kachra
Age 52 years, Muslim, Indian Inhabitant,
residing at Plot No.115 A, Behind Bhikubai
Cottage, Beside Aagase Hospital, M. N. Road,
Kurla (West), Mumbai - 400070. ... Defendant
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 13.08.2024
Appearances: -
Adv. Mr. Kishor Pashte for plaintiff.
Adv. Mr. Vimlesh Singh for defendant.
ORDER
(Dictated and pronounced in open Court)
This Notice of Motion is taken out by the plaintiff.
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2. Heard his Adv. Mr. Kishor Pashte. He submitted that
original suit is for perpetual injunction restraining the defendant
and his agents for entering upon the suit premises i.e. the road
access of the plaintiff’s property i.e. plot of land bearing CTS
No.237 part 9 of the Village-Kurla admeasuring 59.5 Sq. Mts.
situate at Rokade Niwas, M. N. Road, Kurla (West). Hearing of the
suit would take lot of time. Defendant is carrying out unauthorized
construction in the suit premises. If such unauthorized
construction is completed then purpose behind filing the suit
would get frustrated and it would pose to create multiplicity of
proceedings. Plaintiff has filed various complaints with the police
station as well as to the B.M.C. The notice by the B.M.C. came to
be issued to him for razing unauthorized construction in the suit
premises. It goes to show that he is causing obstruction to the
enjoyment of the suit premises by plaintiff.
3. He invited attention of the Court towards averments in
the plaint as well as documents annexed with it and especially the
property cards of the suit premises since the year 1962 as well as
the property tax bills paid by plaintiff from the year 1962 on-
wards. Notice issued by the Corporation itself goes to prove prima-
facie case in favour of plaintiff. The balance of convenience also
lies in his favour only and if the relief of temporary injunction is
not granted in his favour then he only would suffer an irreparable
loss. Therefore, he submitted that the Notice of Motion be made
absolute in its terms.
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4. Advocate Mr. Vimlesh Singh for the defendant strongly
resisted the Notice of Motion by filing his affidavit in reply.
According to him, the Notice of Motion taken out by the plaintiff is
false, frivolous and vexatious. He also invited attention of the
Court towards Property Card Extracts as well as the Deed of
Conveyance in favour of defendant of the year 2007. According to
him, if at all the defendant is carrying out unauthorized
construction then it is in his individual property bearing CT Survey
No.238 and not in the suit premises in CT Survey No.237.
5. He invited attention of the Court towards the Deed of
Conveyance which clearly goes to show that the property
belonging to the defendant is CT Survey No.238. Plaintiff is not
having ownership over the suit premises but those originally
belonged to one trust and the predecessor of plaintiff was the
lessee in it. As such he cannot claim ownership right in the suit
premises. The defendant has challenged notice issued by the
Corporation to him by filing Civil Suit which is pending with
another Court. Nowhere it is averred either in the plaint or in the
Notice of Motion that the defendant has made any encroachment.
No relief of removal of encroachment is sought in the plaint. Suit is
simpliciter for perpetual injunction. Original Plot No.115-A is given
new CT Survey No.238. For that purpose he invited attention of
the Court towards the xerox copies of deed of conveyance of the
year 2007 as well as Index No.2 produced on record along with list
at (Exh.4).
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6. According to him plaintiff is seeking final relief at an
interim stage. If such relief is granted to him then it would be just
like to grant final relief to him which is not permissible. Therefore
he prayed for dismissal of Notice of Motion with costs.
7. Following Points arise for my determination and I
record my findings against each of them for the reasons given
below:-
Sr.
No. Points Findings
1 Whether plaintiff has made out the
prima-facie case? :: No.
2 In whose favour the balance of
convenience lies? :: In favour of
defendant.
3 To whom an irreparable loss would be
caused in case the temporary
injunction is granted or refused? ::
To the
defendant, if
temporary
injunction is
granted.
4 Whether plaintiff is entitled for
temporary injunction as prayed? :: No.
5 What order? :: Notice of Motion
is dismissed as
per final order.
REASONS
Points No.1 to 3: -
8. Upon careful perusal of the prayer clause in the plaint,
it is seen that suit is simpliciter for perpetual injunction with the
prayer that the defendant or his agents may be restrained from
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entering upon the suit premises i.e. road access of the plaintiff’s
property in Plot bearing CT Survey No.237 part 9. By way of this
Notice of Motion also plaintiff is seeking the same relief in the
form of temporary injunction. Law is settled that final relief at the
stage of interim stage cannot be granted.
9. It is important to note that my Ld. Predecessor was also
not inclined to grant ad-interim ex-parte injunction in favour of
plaintiff by holding that it would be the matter to be decided on
merits as if really the defendant has made encroachment over the
suit premises. Nowhere in the plaint or in the Notice of Motion, it
is averred by the plaintiff that the defendant by making
encroachment over the suit premises is carrying out his
construction.
10. On the contrary upon perusal of the notice issued by
the Corporation to him, it can be seen that he is carrying out his
construction, may it be unauthorized but in his own property i.e.
Plot bearing CT Survey No.238. The B.M.C. has already taken
action against him by issuing notice to raze unauthorized
construction raised by him. The defendant has challenged that
notice by filing Civil Suit in this Court which is pending and my Ld.
colleague has also granted ad-interim ex-parte injunction in favour
of defendant as argued by him.
11. From the documents placed on record, especially along
with the list at (Exh.4) it can be seen that original plot number of
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the property of defendant was 115-A which is given new CT
Survey No.238. As said earlier nowhere it is the case of the
plaintiff that defendant is carrying out his unauthorized
construction in the suit premises by making any encroachment.
Under such circumstances, I have no hesitation to reach the
conclusion that the plaintiff has not made out prima-facie case.
The balance of convenience also does not tilt in his favour. If the
relief of temporary injunction as prayed is granted in his favour
then the defendant would be put to an irreparable harm. In the
result I answer Point No.1 in the negative and Points No.2 and 3
accordingly.
Point No.4: -
12. In view of my negative finding to Point No.1 and
findings accordingly to Points No.2 and 3, plaintiff is not entitled
for discretionary relief of temporary injunction as prayed in the
Notice of Motion. In the result I answer this Point also in the
negative.
Point No.5: -
13. In view of my negative findings to Points No.1 and 4
and findings accordingly to Points No.2 and 3, fate of this Notice of
Motion becomes clear. It deserves to be dismissed and that too
with costs. Hence the following order:-
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ORDER
1. The Notice of Motion No.3983 of 2019 is dismissed with
costs.
2. Notice of Motion No.3983 of 2019 accordingly stands
disposed off.
DATE:- 13.08.2024 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 13.08.2024
Transcribed on : 13.08.2024
Checked on : 13.08.2024
Signed on : 13.08.2024
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 13.08.2024, AT 05.31 P.M. Mr. Siddhesh Shankar Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
no.)
: SHRI R. D. DESHPANDE
C.R.NO.61.
Date of pronouncement of
Judgment/order
: 13.08.2024
Judgment/order signed by the P. O.
on
: 13.08.2024
Judgment/order uploaded on : 13.08.2024
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