Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on N/m No. 4191 of 2019 1 Suit No. 2600/2019.
MHCC010114962019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4191 OF 2019
(CNR NO.MHCC01-011496-2019)
IN
L. C. SUIT NO. 2600 OF 2019
(CNR NO. MHCC01-010062-2019)
1) Shyam Roopchand Jaisingh and 3 Ors ]...Plaintiff
Versus
1) The Municipal Corporation of Greater
Bombay and 3 Ors. ]...Defendants
CORAM : SHRI U.J.MORE
(C.R.NO.08).
DATE : 12TH JANUARY, 2021
=====================================
Appearance:-
Mr. P. D.Gandhi, Advocate for Plaintiff.
Mr. Khandagale, Advocate for Defendant No. 1 and 2/MCGM
Mr. Mokashi, Advocate for the Defendant No.3 and 4.
=====================================
ORDER ON NOTICE OF MOTION NO. 4191 OF 2019
1. This is notice of motion filed by the plaintiff against
defendant for challenging the repairs permission granted by the
defendant 1 and 2 in favour of defendant No. 3 and 4 facts of the notice
of motion can be summarized in short as follows:
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Order on N/m No. 4191 of 2019 2 Suit No. 2600/2019.
2. Plaintiffs are joint owner a plot of land City Survey number
668 and 668 1/33 known as Asha Studio Bharat Studio, situated at
Asha Studio compound, Sion- Trombay Road, Chembur Mumbai -71.
The defendant No. 3 and 4 are husband and wife who are claiming to
be tenant in possession of two separate structures in the shade
compound known as Asha Studio compound who obtained repairs
permission without plan tips in NOC from plaintiff.
3. Dilapidated illegal structure marked with red marking and
has with yellow lines on the plan. The defendant No. 3 claiming to be
tenant in the structure Shop bearing City Survey No. 11 and 12,
admeasuring 1020 square feet marked with blue headlines on the plan.
The defendant is claiming to be possession in respect of the structure.
Both structures are hereinafter called as suit structures. Plaintiff become
owner of the Suit property i.e., Asha Studio compound under registered
gift deed dated 15th July, 2005.
4. Defendant No. 3 and 4 through the legal heirs of late Smt.
Sita Devi being the children and husband of daughters of late Smt. Sita
Devi. Filed Suit No. 2079/2010 challenging gift deed from which the
plaintiffs have derived their rights. The notice of motion for injunction
against this plaintiff was filed by the defendant No. 3 and 4 in Hon’ble
High Court on 20th July, 2010. It was rejected on 17th September, 2010.
The appeal against the order was also rejected by division bench of
Hon’ble High Court on 29th June, 2011.
5. So, structure claimed by defendant No. 4 was already
handed over vacant possession by erstwhile tenant with settle
possession and others who has handover vacant position to the
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Order on N/m No. 4191 of 2019 3 Suit No. 2600/2019.
predecessor of plaintiff on 17th May, 1999. Despite of the complaint
letter dated 26th July, 2019. Corporation has permitted for repairs in
Suit structure. Plaintiffs lastly Submitted that, without consent of
plaintiffs no repair permission can be granted to the defendant No.3
and 4 at the instance of defendant Corporation.
6. Defendant No. 3 and 4 have filed reply. It is stated that, in
view of the fact of the order of status quo granted by the Hon’ble High
Court of Bombay on 9th October, 2019 on the statement made by
defendant this suit has become infractuous and desires to be dismissed
with cost. There is no new construction activities being carried out in
the said two suit structures which warrants any interference as prayed
by the plaintiff.
7. In the event of Hon’ble High Court order dated 18th
October, 2019 and 22nd October, 2019 and, on the statement, recorded
of this defendant now nothing remains in the motion no relief can be
granted to the plaintiff till today. No suitable action has been instituted
by the plaintiffs against these defendants in any court. It means
plaintiffs have accepted the status of dependent on the property for
years. The disputes are pending before the under Hon’ble High Court
regarding inheritance and succession rights of the parties inter-se over
the property. Hence, it is too premature to decide issue on the
averments of the plaintiffs alone.
8. The case is made out between two co-owners and hence, as
per ratio laid down by under Hon’ble High Court one co-owner cannot
seek injunction against the other co-owner. The plaintiff conceals matter
fact of the prosecution pending before the Mumbai police, CID branch,
regarding the sham and bogus
"Gift deed" for
"Tenable Repairs" no
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Order on N/m No. 4191 of 2019 4 Suit No. 2600/2019.
permission of any other person other than statutory body constituted by
law is required. Replace reliance on Suit No. 68 of 2009 file before
Bombay City Civil Court which clearly makes a mention of this
defendant and their use occupation and enjoyment of the premises
situated on the premises even though the said will is an issue of
challenge upon the Hon’ble High Court in testimony Suit No. 74 / 2009.
9. Defendant further submit that, the reference regarding the
Kapil Products on by the defendant No. 3 is already made in the will
executed by the Smt. Sunita Devi special difference about the name of
the Mr. Lalit Nagpal defendant No.3. Status of defendant is accepted in
the will dated 3rd February, 2001.
10. The defendants further submit that, plaintiff has filed Writ
Petition No. 3546/2019 before Hon’ble High Court for similar relief.
Therefore, this suit becomes infractuous of the same subject matter of
the suit. Hence, prayed for rejection of NM.
11. Defendant No. 1 and 2 in the capacity as a corporation has
filed reply. It is stated that, N.M. filed against defendant No. 1 and 2 to
revoke to permissions given for defendant No.3 and 4 is itself illegal.
12. The corporation has granted repair permission on the basis
of Structural Audit Report from M/S Structural Concept Designs Private
Limited, dated 1st March, 2017 and has categorized structure as a
ground floor building / 3 shops and classified the structure under a
process C2B category and has recommended only structural repairs.
Hence, the defendant has delegated powers Under Section 353(B) of
BMC Act, 1988, has directed to carry out repairs as suggested in
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Order on N/m No. 4191 of 2019 5 Suit No. 2600/2019.
Structural Audit Report within 6 months.
13. This permission is with certain condition and in violation
the permission would be withdrawn. Defendant has not received any
claim in respect of ownership of plot in the permission dated 3rd March,
2017. Hence, It was perfectly legal and remain in force and therefore,
subsequent permission was granted in 08/07/ 2019.
14.
“Para 20 of reply of dependent No. 4 has been submitted
that, defendant No. 3 and 4 has been already acted upon the
permission and carried out the repairs as mentioned in the Structural
Audit Report” and therefore, permission letter has been already acted
upon by defendant No. 3 and 4, NM will not survive.
15. I have heard Adv. Shri. P. D. Gandhi for the plaintiff at
considerable length. He Pithily submitted that, the repair permission
dated 3rd March, 2017 and 9th August, 2019 is without following due
process of law at the instance of Mumbai municipal corporation. The
important points of argument can be summarized as follows:
1) Suit property is owned and possessed by plaintiffs jointly.
2) While granting repair permission there is a blatant violation at
the instance of the defendant No. 3 and 4.
3) The owner of suit property has bequeathed suit property in the
name of the plaintiffs only and defendant No. 3 and 4 have no
nexus with the said property.
4) Defendant No. 3 Lalit and defendant No. 4 Ranjana claiming to
be tenants and relatives of predecessor in title Smt. Sita Devi,
which is totally wrong.
-- 5 of 22 --
Order on N/m No. 4191 of 2019 6 Suit No. 2600/2019.
5) There are two structures out of which one is authorized and other
one is unauthorized. Blue one is authorized structure as shown in
BMC plan and other one is unauthorized one.
6) Plaintiff being owner objected by making complaint dated for 5th
April, 2019 to the concerned officer of corporation.
7) The Kapil products claim by the defendant No. 3 built in 1979
means not prior to datum line i.e. 22/04/1962 then how can
defendant No.3 got permission to repair suit premises from the
defendant No. 1 and 2.
08) Structural Audit Report at page 184 given by structural Auditor is
suspicious. NDT test not carried out.
09) The property regarding defendant No. 3 Lalit shown in red mark
and defendant No.4 Ranjana shown in blue mark
10) Permission dated 3rd March, 2017 and 9th August, 2019 should be
granted by BMC commissioner rather assistant commissioner. He
further Submitted that; first permission was sanctioned by
assistant commissioner where is second permission is sanctioned
by designated officer who is not in empowered to sanction repair
permission. Hence, it is invalid permission.
11) He has invited my attention on the provisions of Section-353(b)
MMC Act, 1988, such mandates that, repairs by owner or
occupier to the
"satisfaction of commissioner". It is not happened
in this case as the repair was without permission of the owner
i.e., plaintiffs.
12) Defendant No. 3 and 4 has misused their permission by
constructing new wall outside the scope of repair permission.
13) Court commissioner appointed under Hon’ble High Court in
Appeal From Order (St) No. 27167 of 2019 with Interim
Application No. 1 of 2019 dated 09th October, 2019. He has strong
-- 6 of 22 --
Order on N/m No. 4191 of 2019 7 Suit No. 2600/2019.
objection to commissioner’s report and he has submitted the
objection on record.
14) He further submitted that, there is no NOC from owner for repair
permission, no Structural Audit Report and no inspection by BMC
officer. It is casual report without notice to owner. Hence, repair
permission challenged by way of this suit.
15) Hon’ble High Court in Appeal from order (stamp) No. 27167 of
2019 granted status quo to repair work in the suit premises by
defendants No. 3 and 4.
16) Writ Petition No. 3546 of 2019 for challenging illegal act and this
suit is filed for challenging repair permission. Both Petitions are
for different reliefs.
17) Plaintiff submitted that, the defendant No. 3 and 4 be prohibited
from acting on repair permission granted by defendant No. 1 and
2 /corporation.
16. I have heard learned advocate for different No. 1 and 2
Corporation. The important points of argument can be summarized as
follows.
1) Plaintiff is not entire owner. He is co-owner of Suit
property.
2) Executive Engineer has certainly delegated power to
sanction repair permission.
3) BMC had sanctioned repair permission to both defendant
No. 3 and 4 for their both different structures Under
Section 353(b) of MMC Act - 1988 by following proper
guideline of sanctioning repair permission.
4) The Structural Audit Report given by Mr. Rajesh Lohar has
been considered prior to sanction repair permission.
-- 7 of 22 --
Order on N/m No. 4191 of 2019 8 Suit No. 2600/2019.
5) Considering the classification of building in the category of
C2B, sanction power exercise by BMC on Structural Audit
Report. Hence, prayed for rejection of notice of motion.
17. I have heard learned Adv. Shri Mokashi for Defendants No.
3 and 4. The argument advanced by Adv. Shri. Mokashi can be
summarized as follows:
1) Defendant No. 3 and 4 are in settle possession of the both
suit premises since long.
2) There is a certain nexus between the original land owners
Smt. Sita Devi with defendant No. 3 and 4 which transpires
into will deed executed by Smt. Sita Devi and also Writ
Petition filed by plaintiff himself.
3) Defendant No. 3 and 4 has seek permission from the
constituted body which granted permission after inspection
of the documents.
4) Defendant has never violated the terms and conditions.
5) Intention to file false suit against defendants.
Hence, prayed that N.M. may be dismissed.
18. Heard, both the sides at considerable length.
19. In view of aforesaid rival contention, following points arise
for determination and findings thereon are answered as follows:
SR.NO. POINTS FINDINGS
1. Whether plaintiff prove a prima facie
case? No
2. Whether balance of convenience lies in
favour of plaintiff? No
3 Whether it will cause irreparable loss to No
-- 8 of 22 --
Order on N/m No. 4191 of 2019 9 Suit No. 2600/2019.
plaintiff, if injunction as claimed is
refused?
4 What order? As per final order
REASONS FOR ORDER
AS TO POINT NO.1 and 3:
20. It is not disputed that, the Writ Petition No. 3546/19 filed
by this plaintiff in Hon’ble High Court against the same defendants. It is
not disputed that; the testamentary suit was filed in the Hon’ble High
Court by challenging will at the instance of dependable 3 and 4. It is not
disputed that there is certain dispute between the plaintiff and
defendant No. 3 and 4 regarding this structure as well as the suit
property i.e. Asha Studio. It is not disputed that; BMC has sanctioned
repairs permission to the both structures owned by defendant No. 3 and
4 on 3rd March, 2017 and 8th July, 2019 respectively.
21. I would like to focus a light on the section 353(B) of MMC
Act, 1988.
“353B – (1) Every owner or occupier of a
building in respect of which a period of thirty years,
from date of,-
(i) issue of its completion certificate by the
Corporation ; or
(ii) issue of permission to occupy a building
under section 353A ; or
(iii) its physical occupation of at least 50 per
cent., of its built-up area,
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Order on N/m No. 4191 of 2019 10 Suit No. 2600/2019.
Whichever is earlier, has expired, shall cause
such building to be examine by a Structural Engineer
registered with the Corporation for the purposes of
certifying that the building is fit for human habitation
(such certificate hereinafter referred to as “the
Structural Stability Certificate”). The Structural
Stability Certificate issued by such Structural Engineer
shall be submitted to the Commissioner.
(2) The Structural Stability Certificate shall be
submitted within one year from the expiry of a period
of thirty years referred to in sub-section (1), and
every ten years thereafter or such earlier period as the
Commissioner may determine having regard to the
condition of the building and the corrective repairs
carried out by the owner or occupier.
(3) Notwithstanding anything contained in sub-
section (1), the Commissioner may, at any time, after
having recorded the reasons, in writing, direct the
owner or occupier of a building, to cause such
building to be examined by such Structural Engineer
and to submit to the Commissioner, the Structural
Stability Certificate, as required under sub-section (1),
within the period not exceeding thirty days as
specified by the Commissioner, in such direction.
(4) If the Structural Engineer recommends any
corrective repairs for securing the structural stability
of the building, such corrective repairs shall be carried
-- 10 of 22 --
Order on N/m No. 4191 of 2019 11 Suit No. 2600/2019.
out by the owner or occupier of a building to the
satisfaction of the Commissioner.
(5) Any owner or occupier, as the case may be,
who fails to carry out corrective repairs for securing
structural stability, within a period of six months from
the date of report of the Structural Engineer, shall be
punished with the fine as provided in section 471.
(6) Notwithstanding anything contained in sub-
section (5), the Commissioner may, after giving the
owner or occupier, a notice in writing, require him to
carry out, within the period specified in the notice,
corrective repairs for securing structural stability of a
building. If the owner or occupier fails to carry out
such corrective repairs within the period specified in
the notice, the Commissioner may carry out the same
and the expenses incurred by the Commissioner on
such repairs shall, on demand if not paid within thirty
days, be recovered from the owner or occupier as
arrears of property tax.
(7) If there is any dispute about the amount of
expenses for which demand is made under sub-section
(6), an appeal may be preferred to the Chief Judge of
the Small Causes Court, but not such appeal shall be
entertained by the said Chief Judge, unless -
(I) it is preferred within twenty-one days
from the date of receipt of notice of such demand ;
-- 11 of 22 --
Order on N/m No. 4191 of 2019 12 Suit No. 2600/2019.
(ii) the amount for which demand is
made is deposited with the Corporation and a true
copy of the receipt showing that the amount has been
so deposited accompanies the appeal.
(8) In case the appeal is decided in favour of the
appellant and the amount of expenses deposited with
the Corporation is more than the amount payable by
the appellant, the Commissioner shall adjust the
excess amount with interest at 6.25 per cent, per
annum from the date on which the amount is so
deposited by the appellant, towards the property tax
payable by the owner in respect of such building
thereafter.]”
22. I would like to focus a light on the section 354 of MMC Act.
“354 – (1) If it shall at any time appear to the
Commissioner that any structure (including under this
expression any building, wall or other structure and
anything affixed to or projecting from any building,
wall or other structure) is in a ruinous condition, or
likely to fall, or in any way dangerous to any person
occupying, resorting to or passing by such structure or
any other structure or place in the neighborhood
thereof, the Commissioner may, by written notice,
require the owner or occupier of such structure to pull
down, secure or repair such structure [subject to the
provisions of section 342], of danger therefrom.
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(2) The Commissioner may also if he thinks fit,
require the said owner or occupier, by the said notice,
either forthwith or before proceeding to pull down,
secure or repair the said structure, to set up a proper
and sufficient hoard or fence for the protection of
passers by and other persons, with a convenient
platform and hand-rail, if there be room enough for
the same and the Commissioner shall think the same
desirable, to serve as a footway for passengers outside
of such hoard or fence.”
23. Thus it is bounden duty of a commissioner under both
provision of Law S.353(B) and S.354 of MMC Act 1988, to take care
while giving permission for repair in structure.
24. Section 354 of MMC Act,1988 deals with the responsibility
of owner occupier to keep and maintain exterior of the building in good
condition. Guidelines are issued under number
MGC/A/6006 dated
7/11 2013/23.11.2013 regarding implementation of provisions of
Section 353 of MMC Act,1988, appointment of Structural Auditors,
repairs to the Municipal buildings, repairs to the private buildings,
service of the notice Under Section 354 of MMC Act,1988 and
prosecution action thereof.
25. The Adv. For plaintiff has placed reliance on “
Bhagvat Sheran
(Deed Thr.LRS) Vs. Purushottam & Ors. Civil Appeal No.6875 of 2008.”
With due respect to the Judgment of Hon’ble Supreme Court, the
facts to the case are not identical to the case in hand and ratio is also
-- 13 of 22 --
Order on N/m No. 4191 of 2019 14 Suit No. 2600/2019.
not applicable considering facts before this Court”
26. The Adv. For plaintiff has placed reliance on
“Municipal
Corporation Vs. Sun Beam High Tech. Developers Private Ltd.”
With due respect the Judgment is dated 24/10/2019 on the
same date Court Commissioner report was filed. It is held by their
lordship that,
“The Municipal Corporation in the State of
Maharashtra like in any other part of the country are
vested with the power to demolish structures which
violate the laws and have been built without any
building plans or in violation of the laws. The exercise
of the power of demolition which affects the property
of the citizens of this country must be exercised in an
absolutely fair and transparent manner. Rules in this
regard must be followed.”
This ratio is clinchingly applicable in every case of
demolition. With due respect the facts of the case in hand are not
identical to the citated case laws.
27. Considering the pleadings of the parties the prayer taken by
the plaintiff is that, defendant No. 3 and 4 are claiming to be tenant in
possession of the two structures for which the repair permission has
been granted by the BMC. Plaintiff has any nexus of defendant No. 3
and 4 with the Suit. The plaintiff has to prove prima facie case that the
defendant No. 3 and 4 have no nexus with the suit structures and the
permission granted by BMC for repair purpose is not valid as per the
MMC Act,1988 and guidelines issued by the Mumbai Municipal
Corporation time to time.
-- 14 of 22 --
Order on N/m No. 4191 of 2019 15 Suit No. 2600/2019.
28. It is pertinent to note that, this property is a subject matter
of dispute between the plaintiffs and defendants in Hon’ble High Court
Suit No. 96/2010. It is to be noted that, original land owner of Asha
Studio late Smt. Sita Devi Rupchand executed will on 3rd February,
2001. The will which clearly makes a mention of this defendants and
their use occupation and enjoyment of the suit structures situated in the
suit premises.
29. It is specifically mentioned in the will - Testamentary and
Intestate Jurisdiction Petition No.384 of 2009 that,
"At the request of Lalit Nagpal son-in-law of my
daughter Vimla Gupta and on the Lalit Nagpal giving
me his solemn assurance that he and his concern of
Kapil products shall discontinue use of premises on
my property whenever required by me, I allowed the
concern of Kapil Products belongings to the said Lalit
Nagpal to use premises admeasuring about 700 Sq. ft.
at joining the office of Asha Studio on my property
known as "Asha Studios " on payment of rupees 500 /
per month. I have call upon Lalit Nagpal and his
concern of Kapil Products to discontinue use of
premises on my property and Lalit Nagpal has
promised me to do so within a short time, in case if
Nagpal and the concern of Kapil Products do not
discontinue use of premises on my property during my
life time, my executors shall take steps to ensure that
the said Kapil products and Lalit Nagpal discontinue
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Order on N/m No. 4191 of 2019 16 Suit No. 2600/2019.
use of premises on my property.”
30. The contention above mentioned transpires that, the
defendants have Nexus with the suit property in the capacity as a
tenant. Asha Studio suit structure is legal or illegal. The Mumbai
Municipal Corporation is a competent authority who look after business
to identify unauthorized structures and to initiate action under the
Section 351 and 354 of the MMC Act, 1988 and also in the light of the
judgment given by Hon’ble Bombay High Court in Writ Petition No.
1135 of 2014 with guidelines of BMC.
31. Defendant No. 1 and 2 submitted that, after inspection of
the Structural Audit Reports and documents the repairs permission was
granted by the MCGM with proper care and caution. As discussed
earlier the provisions of Section 353(B) provides that the repairs
permission should be subject to the satisfaction of commissioner and
consent by the owner. As per plaintiff he has not consented for the
same. As per defendant No.1 and 2 there is no question of consent for
the tenantable repair’s permission. There is substance into stand taken
by the defendant Corporation. It is true that defendant No. 3 and 4 that
they are tenants in possession of the property. The corporation has
inspected the documents as well as Structural Audit Report given by M/
s. Structural Concept Designs private limited dated 1st March, 2017
supports the contention of defendant 1 and 2.
32. Structural Audit Report (Defendant 3) - Structural Audit
Report dated 5th July, 2019 is regarding structure of Mr.Lalit Nagpal the
Defendant 3. This report transpires is that, the building condition in the
C2-B category Table. The recommendation is made as follows:
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Order on N/m No. 4191 of 2019 17 Suit No. 2600/2019.
"No eviction only structural repairs” it is issued
by Mr Rajesh Lohar who is on the panel of the
Mumbai Municipal Corporation as a certified
Structural Auditor.
33. Permission to restore Kapil Products go-down at Asha
Studios dated 3/3/2017. This is allowed permission in favour of
defendant No. 3 and 4, regarding Kapil Products go-down at our
studios. Guide-line of the permission order transpires
"examined and
this permission is liable to be revoked.” this particular case there is no
any documentary proof to show that there is an objection in 2017 and
2019 before grant of second permission dated 8th July, 2019 at the
instance of plaintiffs. On the basis of said permission on 9th August,
2019 permission granted to defendant No. 3 and 4 with same dis
claimer clause regarding the ownership of the land.
34. Permission for repairs of suit structure of Defendant No.4
Ranjana without repetition on the same date i.e. 3rd March, 2017;
permission to restore shop in possession of Mrs.Ranjana Nagpal outside
Asha Studios was granted by considering Structural Audit Reports by
the Mumbai Municipal Corporation. On the basis of first permission
second permission is granted on 9th August, 2019 which is now
challenged. Second Structural Audit Report is also transpires structure
in the possession of defendant No.4 before classified in the category of
C2B.
35. It is to be noted that, both permissions of 2017 and 2019
were considered with support of Structural Audit Report given by the
-- 17 of 22 --
Order on N/m No. 4191 of 2019 18 Suit No. 2600/2019.
Structure auditor on the panel of Mumbai Municipal Corporation. The
consent of owner for tenantable permission as per the guideline and the
provisions of Mumbai Municipal Corporation is not necessary.
36. Hon’ble High Court specifically directed in Appeal from
order (stamp) No. 27167 of 2019 that,
"The City Civil Court hearing the
notice of motion, shall consider the merits of the case independently
and arrive at its conclusion without being, in any way, influenced” by
the fact that the defendants agreed before this court to maintain status
quo in respect of the structures being part of the suit property. With due
respect to the observation made by his lordship, after considering
pleadings of the both parties and the documents on record the repairs
permission given in favour of the defendant No. 3 and 4 for two
different structures is nothing but permission for tenantable repairs. The
reply given by the defendant No. 3 and 4 specifically transpires that,
They have carry out the repairs as mentioned in the Structural Audit
Report. Therefore, the prayer regarding notice of motion seeking the
revoking repairs permissions certainly become infractuous and does not
survive in this situation.
37. Court commissioner report – Hon’ble High Court of
Bombay has directed to appoint an officer of the court as a
commissioner to find the status of the said property in terms of the
structure existing at side as of today with photographs. Ir is directed to
produce report to City Civil Court hearing the notice of motion. The
order of status quo order to be complied by defendant No. 3 and 4.
Court commissioner report has prepared in presence of the plaintiff and
defendants. Para of (VI) 27167 of 2019 while making order it is
clarified that this order has been passed purely on the basis of
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Order on N/m No. 4191 of 2019 19 Suit No. 2600/2019.
concession made by the parties and not after considering the merits of
case. Accordingly in view of order dated 09/10/2019 and 22/10/2019
the court commissioner was appointed to verify status of property. The
report transpires that commissioner has confirmed with both parties
about photographer. Therefore, objection about photographer is not
acceptable. The Court Commissioner Report no where transpires that
the repairs has been done out of legal scope of repairs permission
granted by MCGM. The Court Commissioner report as follows :
Premises 1 – (Respondent No.3) The report transpires tube lights and
fan to be in working condition. It also observed galvanized sheets on the
roof were in good condition. The internal walls of the structure without
plaster with plain Cement flooring.
Premises 2 - (Respondent No. 4) He observed 3 shops with closed
shutters facing noth side. He observed that although there were 3
shutters externally but from inside, there were 2 shops, one big and the
other small. He observed that, tube lights and fans though old to be in
working condition in both shops. He observed internally that the
galvanized sheets on the rood were in good condition. The internals of
the shops were observed plastered and painted in pale yellow colour
and that the flooring of the shops was plain Cement flooring. He
photographed internally and externally. Thus, in short the commissioner
report transpires all repairs were has been completed by defendant No.3
and 4 and supports contention of defendant No.3 and 4 that repairs has
been already carried out.
The objection regarding not recording all the factual circumstance
which Court commissioner witnessed on 24th October, 2019 at suit
premises are without any justifiable reason and self contradictory. In
short the report supports the contention of defendant No. 3 and 4 that
-- 19 of 22 --
Order on N/m No. 4191 of 2019 20 Suit No. 2600/2019.
repairs has been carried out in both suit structures regarding defendant
No. 3 and 4 respectively. Now there is no scope remain for injunctive
relief in favour of plaintiff.
38. It is well settled that the discretionary powers has to be
used judiciously. The discretion of the court is exercised to grant a
temporary injunction only when the following requirements are made
out by the plaintiff :
(i) existence of a prima facie case as pleaded, necessitating
protection of plaintiff's rights by issue of a temporary
injunction;
(ii) when the need for protection of plaintiff's rights is
compared with or weighed against the need for protection
of defendant's rights or likely infringement of defendant's
rights, the balance of convenience tilting in favour of
plaintiff; and
(iii) clear possibility of irreparable injury being caused to
plaintiff if the temporary injunction is not granted. In
addition, temporary injunction being an equitable relief,
the discretion to grant such relief will be exercised only
when the plaintiff's conduct is free from blame and he
approaches the court with clean hands.
39. Thus, considering above discussions as made above plaintiff
has not made out prima facie case to get injunctive relief. considering
the facts and circumstances of case neither the balance of convenience
is in plaintiffs favour. The ends of justice, equity and good conscious
warrants that defendant No. 3 and 4 who acting in pursuance of can be
appropriately protected.
-- 20 of 22 --
Order on N/m No. 4191 of 2019 21 Suit No. 2600/2019.
40. It is the defendant who would cause grave harm and
irreparable loss in such circumstances where already repairs has been
carried out as per contentions defendant No. 1 to 4 and also Court
Commissioner report Dated 24/10/2019.
41. The repairs order dated 09/08/2019 passed by defendant
No. 1 and 2 Corporation no where shows any miss-carriage of justice or
violation of MCGM Law. The Court Commissioner report also transpires
completion of repair works as per factual position in the inspection of
the suit premises. Therefore, plaintiff have certainly not proved prima
facie case. As a result of the above discussion at lastly, I answer point
No. 1 and 3 in negative. As I answered point No.1 and 3 in negative; I
am inclined to pass following order.
- ORDER -
1. The prayer clause (a) of N.M.No. 4191 of 2019 is rejected
being devoid of merits.
2. Notice of Motion No. 4191 of 2019 is stands disposed off
accordingly.
(U.J.More)
Judge,
City Civil & Sessions Court,
Mumbai.
Date :
1. Dictated on : 12.01.2021
2. Transcribed on : 12.01.2021
3. Signed on : 12.01.2021
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Order on N/m No. 4191 of 2019 22 Suit No. 2600/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12/01/2021. at 4:50 p.m. Mr.G.R.Suryawanshi
Name of the Judge (with Court Room no.) HHJ Shri U.J.More.
(Court Room No.08).
Date of Pronouncement of Judgment/Order 12.01.2021
Judgment/Order signed by P.O. on 12.01.2021
Judgment/Order uploaded on 12.01.2021
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