Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 3983/19 (St.11796/19)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.3983/2019
IN
S .C. SUIT (Stamp) No. 11796/2019
Amit Bajirao Rokade ..Plaintiff
V/s.
Javed Ismail Kachra ..Defendant
Appearance:
Adv. Mr. K.G Pashte for plaintiff.
Adv. Mr. Gandhi with Adv. Mr. Vimlesh Singh for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 5.11.2019.
ORAL ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
filed by plaintiff Amit B. Rokade. Also perused plaint and documents
filed along with the plaint on behalf of the plaintiff/ applicant.
2. Matter was taken up before holiday Court on 28.10.2019
by praecipi for seeking urgent adinterim relief by the plaintiff.
However, Ld Judge of Holiday Court did not find any urgency in the
matter for passing order of statusquo or order in respect of adinterim
relief as prayed for and directed the matter to be placed before regular
Court.
3. Today, by praecipi, the plaintiff has moved this court for
hearing the parties on N/M for seeking adinterim relief pressing for
urgency in the matter.
-- 1 of 7 --
2 N/M 3983/19 (St.11796/19)
4. I have heard Ld. Counsel for the plaintiff and Ld. Counsel
for the defendant.
5. Ld. Counsel for the defendant has strongly opposed the
N/M and submitted that, unless defendant is provided with an
opportunity to file his reply/ affidavit in reply to the N/M, no interim
order should be passed as prima facie there is no urgency in the matter
and no case is made out by the plaintiff for passing any interim order of
injunction or statusquo, without providing any opportunity to the
defendant to put forth his case.
6. On the contrary, Ld. Counsel for the plaintiff Mr. Pashte
argued that, there is prima facie case and balance of convenience lies in
favour of the plaintiff to seek interim relief in the present case. He
referred to the pleadings of the plaintiff and documents filed on record
and submitted that, as per list of documents, at pg.16, the plaintiff/
applicant has produced property card extract at Ex.A colly., which
clearly shows ownership right of the plaintiff in the column of Pattedar
as holder of land, at pgs.18 to 27. As per Ex.B colly., there are copies of
tax levied by BMC showing name of the mother of the plaintiff Rashmi
Rokde at pg.28 to 30 and at pg.31 to 36, there are receipts of payments
made by the plaintiff to the BMC. At Ex.C, there is copy of sketch map
showing CTS No.237 which is owned and possessed by the plaintiff and
CTS No.238 is owned by the defendant. At Ex.D, pg.38, there is notice
issued by MCGM dated 1.11.2017 showing unauthorized construction
as per schedule carried out by the defendant. At pg. 38, there is copy of
complaint submitted to Sr. PI of Vinoba Bhave Nagar police station by
the Asst. Engineer. At Ex.E colly, pgs.39 to 53, there are photographs
showing illegal construction carried out by the defendant on the suit
-- 2 of 7 --
3 N/M 3983/19 (St.11796/19)
site. At Ex.G, pg. 54, there is copy of complaint filed by the plaintiff to
the Asst. Engineer, Kurla, Mumbai, “L” Ward, supported by signatures of
the residents of plot no.114, Rokade Niwas. CTS No.237, M.N. Road,
Kurla(W), Mumbai 70. There is further correspondence regarding illegal
construction carried out by the defendant vide documents filed on
record at Ex.I colly.(pg.61), Ex.J colly.(pg.64), complaint filed by
members of ward no.166 and relevant committee of the BMC Mr.Sanjay
Turde, who is also representative of a local political party, Maharashtra
Navnirman Sena (MNS), Branch 166, Kurla(W), Mumbai, complaint
filed by the plaintiff to the Asst. Engineer, “L” Ward, Kurla, Mumbai
vide Ex.K, pg.67 etc.
7. Relying on the above prima facie material on record, Ld
Counsel for the plaintiff/ applicant argued that, this is fit case for grant
of adinterim relief to the plaintiff as prayed in the Motion failing which
the defendant is likely to take undue advantage of the situation and
complete the unauthorized construction work during pendency of the
suit and till the defendant/ respondents files his reply/ affidavit to the
Motion, he urged that he has made out exceptional case for grant of
adinterim order in favour of the plaintiff.
8. On the contrary, Mr. Gandhi, Ld. Counsel for the defendant
has strongly opposed the submission made by Ld. Counsel for the
plaintiff/ applicant for grant of adinterim order and pointed out from
the paras 7,9 and 22 of the plaint and documents on record that, there
is no urgency in the present case for seeking adinterim relief by
denying the defendant an opportunity to contest the Motion. He
submitted that, the construction work is being carried out by the
defendant since 2017 in his own right and it is not by encroaching upon
-- 3 of 7 --
4 N/M 3983/19 (St.11796/19)
CTS 237 or part of CTS 237. The plaintiff has made allegations in the
plaint in para7 that the defendant has made encroachment on the
access road to the plaintiff's property i.e. part9 of CTS 237, Village
Kurla and again in para9, he has contended that the defendant is
carrying out illegal construction activities by encroaching upon the land
premises of the property of the plaintiff. He is making self contradictory
contentions before this court and it is the case of the plaintiff that, the
construction work has been carried out from October 2017 and since
then the plaintiff is making a grievance about the same before the
concerned authorities, but no substance was found in the grievance of
the plaintiff and no action has been taken by the authorities. He has
referred to various correspondence between the plaintiff and the
concerned authorities and pointed out that no case of urgency is made
out by the plaintiff as argued before the court. He also produced before
the court recent photographs of suit site showing access road which is
available to the plaintiff/ defendant and submitted that, one L.C. Suit
No. 1318/18 has already been filed by the defendant against MCGM,
Mumbai and another, wherein the plaintiff had sought to add him as a
party to the suit but Ld. Judge of the C.R. No.11 of this court vide order
dated 11.1.2019 has rejected the Chamber Summons No.1860/18.
9. Ld. Counsel for the defendant has also relied upon
authority of Hon'ble Bombay High Court reported in the case of Capt.
Harcharanjit Singh Thind V/s. Deeksha Thind and Ors. (2008(3)
MhLj 587), wherein Hon'ble Bombay High Court, in para 17, has held
that, relief of injunction is a discretionary and equitable relief and if the
party is guilty of suppression of material fact from the court then such
party is not entitled for any discretionary relief, as the party who has
not come before the court with clean hands, is not entitled for such
-- 4 of 7 --
5 N/M 3983/19 (St.11796/19)
relief. Similarly, reliance is placed on another decision of Hon'ble
Madras High Court in the case of Mr. R. Riyaz Ahmed & Ors V/s. J.G.
Glass Industries Pvt. Ltd. & Ors. (S.A.No.655 of 2011) decided on
4.4.2014, wherein Hon'ble Madras High Court, in para 12, has held
that, if plaintiff has approached the court by taking two inconsistent
pleas and obtained interim order on that basis without obtaining leave
of the court under Order 2 Rule 2 of CPC, it is not legal and permissible
in law, therefore the appeal was rejected on that ground itself.
10. Similarly, reliance is placed on another decision of Hon'ble
Apex Court in the case of Zenit Mataplast P. Ltd V/s. State of
Maharashtra and Ors. ((2009)10 SCC 388). In this authority, in paras
30 to 35, Hon'ble Apex Court has held that, if there is delay on the part
of plaintiff in approaching the court of law, it is good ground for refusal
of interim relief because only in exceptional circumstances such delay
can be condoned and exceptional circumstances can be in the nature of
violation of fundamental rights of the parties guaranteed under the
Constitution. In the said case, the delay on the part of appellant was
found fatal to the case and it was held that interim stay cannot be
granted at a belated stage as it would be preposterous.
11. Ld. Counsel for the defendant also relied upon photocopy
of sanction plan by Executive Engineer of Municipal Authority, wherein
suit property is shown in the name of the plaintiff. Access road to the
property in possession of the plaintiff and defendant is clearly shown
and it is clear from the said map that, the access road is not exclusively
for the plaintiff but it is for all residents residing in the adjacent
building, including the defendant.
-- 5 of 7 --
6 N/M 3983/19 (St.11796/19)
12. Under the above circumstances, after considering the rival
submissions made by Ld. Counsels for both sides at length, I am of the
considered opinion that, no prima facie case or balance of convenience
is made out by the plaintiff for passing any interim order in his favour at
this stage. Prima facie, I find that, the defendant has not made any
encroachment of the land of the plaintiff or the common access road.
The question whether the construction carried out by the defendant is
prima facie illegal, cannot be decided without giving an opportunity to
the defendant. Hence, I am of the view that, no irreparable loss will be
caused to the plaintiff, if interim relief is not granted. On the other
hand, if any interim relief is granted at this stage without providing an
opportunity to the defendant to file his reply/ affidavit opposing the
Motion, it will cause serious prejudice to the defendant.
13. The plaintiff shall be at liberty to produce before the court
more convincing evidence at the time of hearing the Motion on merit. In
the meanwhile, the defendant/respondent can also file his reply/
affidavit for opposing the Motion so that this court can consider the
Motion on merit at an appropriate stage. Hence, I proceed to pass
following order:
ORDER
1. Interim relief as prayed for by plaintiff is hereby rejected.
2. It is made clear that, the observations made by this court
while passing this order are only on the basis of prima
facie material on record and it is not on merit of the
case.
3. Matter shall proceed further after filing affidavit in reply
-- 6 of 7 --
7 N/M 3983/19 (St.11796/19)
by the defendant to the Motion.
4. Ld Counsel for plaintiff to remove the office objection, if
any, within four weeks and serve the writ of summons
to the defendant by next date.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 5.11.2019 Gr. Bombay (C.R. 03)
Dictated on :5.11.2019
Typed on : 5.11.2019
Signed by HHJ on : 6.11.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 7.11.19
TIME: 4 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 5.11.2019
Judgment/ order signed by P.O on 6.11.2019
Judgment/ order uploaded on 7.11.2019
-- 7 of 7 --