Final Order 1

Order Details: Notice of Motion
Pdf Text: Order N/m No. 4106/2019 1 Suit No. 927/2019
MHCC010112602019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4106 OF 2019
(CNR NO. MHCC01-11260-2019)
IN
SUIT NO. 927 OF 2019
(CNR NO. MHCC01-003602-2019)
VASUDHA CO-OP. HOUSING SOCIETY LTD. ...Plaintiff
Versus
SMT. DAMAYANTI R. PUJARA & ORS. ...Defendants
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Defendant No.1 in person present and appearing for defendant Nos. 2
and 3 as a C.A.
Adv. Mr. Khandagale. Advocate for defendant Nos. 4 to 6 /MCGM.
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CORAM : DR. U. J. MORE
(C.R.NO.58).
DATE : 18th June, 2021
ORDER ON NOTICE OF MOTION NO. 4106 OF 2021
1. This is notice of motion filed by plaintiff against the
defendants no.1 to 3. It is stated that Suit is filed by plaintiff society
against the defendants for injunction. The plaintiff society is in the
process of re-development of Suit premises viz, consisting of ground
plus two upper floor i.e. total 10 flats lying and situated Plot of Land
bearing Plot No. D-2/403, Situated on Survey No.III of Chembur, CTS
No.1621 and 1621/1 to 4, Village Chembur, Mumbai-71 having an area
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Order N/m No. 4106/2019 2 Suit No. 927/2019
admeasuring about 645 Sq.mtrs (here in after called as Suit Property).
2. The defendant Nos. 1 to 3 are creating various hurdles,
nuisance and obstruction in the process of re-development process
undertaken by the plaintiff society with the consent of all members of
the Society except the defendants Nos.1 to 3 who are still occupying the
suit premises even though the said building being an old one, is in
dilapidated condition and not for human habitable. While all the other
members have vacated their respective premises, the defendants No. 1
to 3 are still residing and not co-operating with the plaintiff society.
3. The re-development agreement of the Suit premises is in
process and defendant Nos.1 to 3 are obstructing the process of re-
development. The injunction against the deft is need of hour.
4. Deft Nos.1 to 3 filed reply with documents. It is stated that,
the subject matter of suit and NM is liable to be dismissed as matter is
subjudice before Hon'ble High Court. The First Appeal No.803/12 was
filed challenging wrong dismissal order dt. 03.04.12 in LC Suit
No.5585/15.
5. In FA No. 813/12 Hon'ble Bombay High Court passed
stayed order dt.19.12.2019 “As parties shall maintain status-quo till
pending appeal”. The interim stay orders our made absolute and merge
with order dt. 12.02.2014 and CA 1745/12 was final disposed off and
removed from the board on 12.02.2014. The stay order are in force,
subsisting, valid and binding till date on all the respondents.
6. The Defendant/Corporation issued notice u/Sec.354 on
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Order N/m No. 4106/2019 3 Suit No. 927/2019
19.01.2015 to the defendant no.1 to 3. This notice challenged by way of
Writ Petition No.2190/15.
7. There is sole/only shelter to the defendant Nos.1 to 3 and
they have no other home. The dilapidated condition/status of Suit
premises is already challenged before Hon'ble High Court and
suppression of this material factum by plaintiff makes thus suit and NM
liable to be dismissed at the outside. The plaintiff cannot seek unlawful
reliefs for compliance by deft Nos. 4 to 6 otherwise it would be amount
to violating the orders of Hon'ble Bombay High Court. The plaintiffs are
attempting to extract relief of final permanent nature under the garb of
ad-interim relief.
8. The Court does not have jurisdiction in this matter as the
material factum of on going Hon’ble High Court proceeding on the same
matter is pending before Hon'ble High Court. Hence the notice of
motion should be dismissed for committing deliberate
misrepresentation and fraud against the Court.
9. The Ld. Advocate for plaintiff advanced following points in
the arguments :
a) The Suit premises make collapse at any time and the water
connection with electricity connection shall be disconnected
immediately.
b) The Vasudha Co-Hsg. Society (Plaintiff) has executed
redevelopment agreement in 2014, except deft Nos.1 to 3 all
members have signed on it. Ninety percent of members are above
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Order N/m No. 4106/2019 4 Suit No. 927/2019
75 to 80 years. Due to obstruction by deft Nos.1 to 3 we are
unable to start reconstruction work in Suit premises. Therefore,
deft Nos.1 to 3 shall be restrained for making any obstruction for
redevelopment and electric, water supply shall be disconnected.
10. C.A. of deft Nos. 2 to 3 and deft No.1 i.e. Party in Person
argued following point as follows :-
a) Her husband has filed Suit No. 5585/2005 which was dismissed.
b) The structural audit report dt. 13.07.2012 classified Suit building
as C1 Category.
c) After judgment in WP No.1135/14 DPL is not followed and notice
issued by BMC despite of stay order by Hon’ble High Court.
d) Writ Petition No.2190/15 was dismissed by Hon'ble High Court. It
was challenged by way of Special Leave Petition (Civil) Diary No.
37676/19 on 10.12.2019. The Hon'ble Supreme Court has passed
status quo order against the notice u/Sec. 354 of MMC Act.
Hence NM will be dismissed.
11. The Ld. Advocate for deft/Corporation advanced following points
in the arguments :
a) The BMC has already initiated action against the Suit premises.
b) The deft Nos. 2 and 3 challenged by way of Special Leave Petition
(Civil) Diary No. 37676/19 on 10.12.2019. The deft Nos.1 to 3
has got order without merit as deft/Corporation was not present.
At present the order of the Hon'ble Supreme Court is continued.
Plaintiff is staying in same suit building of C1 category.
c) Hon'ble High Court noted in WP No.2190/15 “Plaintiff has to stay
in the suit premises and BMC will not held liable”.
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Order N/m No. 4106/2019 5 Suit No. 927/2019
d) FA No. 813/12 is still pending in Hon'ble High Court and last date
is 06.01.2021 and due to pandemic it is undated now. The status-
quo was different prayed and cannot pulled up in this case.
e) BMC can't demolished suit premises due to order of Hon'ble
Supreme Court.
f) BMC can disconnect water and electricity connection as not
stayed order for the same.
g) It is prayed that, NM will be allowed.
12. In view of aforesaid rival contention, following points arise
for determination and findings thereon are narrated as follows:
SR.NO. POINTS FINDINGS
1. Whether plaintiff prove a prima facie
case? Negative.
2. Whether balance of convenience lies in
favour of plaintiff? Negative.
3
Whether it will cause irreparable loss to
plaintiff, if injunction as claimed is
refused?
Negative.
4 What order? As per final order.
REASONS FOR ORDER
AS TO POINT NO.1 to 3 :-
13. It is an admitted position that, deft Nos.1 and 2 are residing in
Suit premises at their home. It is admitted position that, one LC Suit
No.5585/15 was filed by Mr. Ratilal Pujara (Husband of deft No.1) in
City Civil Court. The suit was dismissed on 03.04.2012. It was
challenged by way of CA No.1745/12 and FA No.813/12 (filed on
11.05.2012). Deft Nos.1 to 3 submits that, there is status quo order dt.
19.12.2013 in CA No.1745/12 and FA No.813/12. In support of this
contention she has filed the copy on record which transpires that, the
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status-quo order is passed on 12.02.2014 by Hon'ble Bombay High
Court. It is admitted position that, the CA No.1745/12 disposed off with
direction of status-quo till disposal of appeal. It is admitted fact by Ld.
Advocate for deft/Corporation Nos. 4 to 6 that, till today status-quo
order is in existence.
14. It is admitted position that, defendant Nos.1 to 3 filed Writ
Petition No.2190/15 in Hon'ble Bombay High Court. The said Writ
Petition is dismissed on 16.10.2019. The dismissal order is challenged in
Hon'ble Supreme Court by way of Special Leave Petition (Civil) Diary
No. 37676/19 (arising out of impugned final judgment and order dt.
16.10.2019 in WP No.2190/15 passed by Hon’ble High Court of
Judicature at Bombay. The defendant Nos.1 to 3 has moved petition in
this case and the Hon'ble Supreme Court has passed order on
22.10.2019 “No demolition order will be passed on acted upon in the
meanwhile”. This order is continued on 10.12.2019. Considering the
pandemic situation till today there is no further order filed on record. It
is submitted by party in person that, order of the Hon'ble Supreme
Court order is in existence till today. There is substance in the argument
advanced by party in person. It is also not denied by advocate for
plaintiff or advocate for defendant Nos. 4 to 6. Therefore “No
demolition” order regarding suit premises is in existence till today.
15. Perused all documents, affidavit, additional affidavit, Preceipe,
pleadings of Notice of Motion and Suit. It is settled Civil law that, one
who seeks injuctive relief shall come with clean hands. Considering
status-quo order of Hon’ble High Court in C.A. No. 1745/12, this
plaintiff has not made out prima facie case. It is the deft Nos. 1 to 3 in
which favour there is “No demolition order” passed by Hon’ble Supreme
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Order N/m No. 4106/2019 7 Suit No. 927/2019
Court. Hence, balance of conveyance lies in favour of deft. Nos. 1 to 3
only. Despite of such facts and circumstance any interim relief is granted
against deft. Nos. 1 to 3, it would be mockery of justice and abuse of
process of Law. Therefore, I am of considerable opinion that, it is only
deft. Nos. 1 to 3 would suffer irreparable loss at this stage. Hence, I
answer point No. 1 to 3 in negative.
AS TO POINT NO. 04 :-
16. After thoughtful consideration of pleadings and arguments
submitted by both sides; I passed following order.
- ORDER -
1. Notice of Motion No. 4106 of 2019 stands dismissed being
devoid of merits.
2. Notice of Motion No. 4106 of 2019 is disposed of
accordingly,
(Dr. U. J. More)
Judge,
City Civil & Sessions Court,
Mumbai.
Date: 18.06.2021
1. Dictated on : 18/06/2021
2. Transcribed on : 18/06/2021
3. Signed on : 18/06/2021
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Order N/m No. 4106/2019 8 Suit No. 927/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/08/2021. at 1:30 p.m. Mr.G.R.Suryawanshi
Name of the Judge (with Court Room no.) HHJ Dr. U. J. More.
(Court Room No.08).
Date of Pronouncement of Judgment/Order 18.06.2021
Judgment/Order signed by P.O. on 18.06.2021
Judgment/Order uploaded on 18.08.2021
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