Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 4242/19 in Suit No. 1519/02. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4242 OF 2019
(CNR NO. MHCC01-011610-2019)
IN
SUIT NO. 1519 OF 2002
(CNR NO. MHCC01-001198-2002)
Tulsidas V. Patel Pvt. Ltd. and another ...Plaintifs
Versus
Municipal Corporation of Greater Mumbai
and others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 4th FEBRUARY, 2020.
Mr. Rahul Soman, Advocate for Plaintif.
Mrs. Tondwalkar, Advocate for Defendant No.1 / MCGM.
Mr. Bhavik Manek, Advocate for Defendant No.2.
None for Defendant No.3.
ORDER
This is a motion taken out by plaintif for
appointment of Court Commissioner for local investigation for
the suit premises C.T.S.No. 13/15, situated at Chunabhatti,
admeasuring 55,000 sq.yards equivalent to approximately
45,987 sq.mtrs. and to carry out survey and demarcate the
boundaries of suit premises. The motion is taken out under
Order 26 Rule 9 of CPC and Order 39 Rule 7 of CPC.
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N/m No. 4242/19 in Suit No. 1519/02. 2 Order.
2. Perused reply submitted by defendant no.2. There
is no reply submitted by defendant no.1 and defendant no.3.
3. Ld. advocate Rahul Soman for the plaintifs submits
that area of suit premises is properly mentioned by plaintif.
There are allegations of plaintif that defendant no.3 has
handed over the suit premises on lease agreement to
defendant no.2 for development. During construction of
Buildings No.5, 6, 8 and 9, defendant no.2 has encroached
over suit premises owned and possessed by plaintif. In
written statement submitted by MCGM vide Exh.4, nothing has
been mentioned in respect of encroachment over suit
premises. In written statement of defendant no.3 vide Exh.44,
it is supported to the allegation of the plaintif in respect of
alleged encroachment. Admittedly, there is a map of
measurement drawn by the DILR dated 27/11/1991. If there is
no encroachment, then why defendant no.2 is resisting for
appointment of Court Commissioner. The report submitted by
him will be binding on both side. It is prayed for DILR be
appointed as Court Commissioner.
4. Ld. advocate Bhavik Manek for defendant no.2
submits that in respect of allegation of encroachment, it was
incumbent on the part of plaintif to admeasure the land prior
to institution of suit. Plaintif is relying on the map of
measurement dated 27/11/1991 and it is there on record.
Defendant no.3 is a sister concern of plaintif, who has
appointed defendant no.2 as a developer. Therefore, at the
application of defendant no.2, defendant no.3 has been
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N/m No. 4242/19 in Suit No. 1519/02. 3 Order.
impleaded in a present suit. In view of letter dated
30/11/1992, defendant no.3 M/s. Bharat Chemical is shown as
owner of C.T.S.No. 14, 14/1 to 8. As per order on Chamber
Summons No. 916/2017 dated 30/11/2017, defendant no.3
being sister concern of plaintif, impleaded in present suit.
There is a collusion between plaintif and defendant no.3.
Defendant no.3 could not get relief in Notice of Motion No.
2535/1993 order dated 10/07/1997. Therefore present suit
came to be filed by joining hands with defendant no.3.
5. Ld. advocate Manek continued that suit is part-
heard, testimony of PW 1 is recorded, substantial cross-
examination has been completed on behalf of defendant no.2.
In such circumstances, no Court Commissioner can be
appointed to collect the evidence.
REASONS FOR ORDER
6. Before adverting to the fact in issue, it is necessary
to peruse material relief claimed by plaintif in prayer clause
of Para No.22 of plaint. For sake of convenience prayer clause
22(a) and (c) are reproduced as follows :
“a) that the 1st Defendants, themselves,
their servants and agents and all persons
claiming through or under them be ordered
not to issue any Occupation Certificate or
Completion Certificate in respect of
structure constructed on the encroached
portion of land more specifically shown in
Red colour in the enclosed plan annexed
hereto in the Exhibit “B” hereto as the 2nd
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N/m No. 4242/19 in Suit No. 1519/02. 4 Order.
Defendants have carried out construction
unauthorisedly without the approval of the
plans relating to the Plaintifss property from
the 1st Defendants.
c) That the 2nd Defendants be restrained
by an Order and Injunction of this Honsble
Court from trespassing the Plaintifss land
shown shaded in Red colour on the Plan
Ex.”B” hereto.”
7. It appear from aforesaid two prayers and maps at
Page No.21 and 22 with plaint that it is a case of plaintif that
by relying on measurement map dated 27/11/1991, plaintif is
sure in respect of encroachment over the suit premises at the
hands of defendant no.2.
8. It is necessary to mention admitted facts as
follows :
A) Issues are framed by this Court vide Exh.6 on
30/10/2009.
B) It is nowhere denied that defendant no.3 is sister
concern of plaintif.
C) Suit No. 4261/1993 was filed by defendant no.3.
D) In view of Conveyance Deed dated 19/03/1965,
plaintif has purchased the suit premises from
C.J.Wadia.
E) As per agreement dated 24/07/1986 between
defendants 2 and 3, suit property was delivered to
defendant no.2 for development, in accordance
with plan sanctioned in 1971.
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N/m No. 4242/19 in Suit No. 1519/02. 5 Order.
F) Suit is part-heard, defendant no.2 has conducted
cross-examination of PW 1 in around 8 to 10
sittings.
9. In present motion in prayer clause (b) it is prayed
as follows :
“(b) That pending the hearing and final
disposal of the Suit, upon examining the
Report filed by the Commissioner under
prayer clause (a) above, if this Honsble Court
observes that Defendant No. 2 has
encroached upon any portion of the Suit
Property, this Honsble Court may be pleased
to pass an order of mandatory injunction
directing Defendant No. 1 to demolish and
remove at the cost of the Defendant No.2 the
structures erected by the Defendant No. 2 on
the Suit Property.”
10. It appear from aforesaid prayer that plaintif is not
sure in respect of encroachment, therefore he claims for
appointment of Court Commissioner. However, prayer clause
(b) is contrary to the prayer claimed by the plaintif in plaint.
11. It is specifically mentioned in reply in support of
motion that Building No.9 is substantially constructed on the
land belonging to plaintif as per map Exh.B in view of
measurement conducted by DILR on 27/11/1991.
12. In reply submitted by defendant no.2, it is
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N/m No. 4242/19 in Suit No. 1519/02. 6 Order.
specifically mentioned that there is a collusion between
defendant no.3 and plaintif and present suit is filed at the
behest of defendant no.3 because he could not get relief in
previous proceeding. It is added that Court Commissioner
cannot be appointed to fill up the lacuna and to collect the
evidence.
13. Ld. Advocate for plaintif relied on Kashinath V/s.
Purushottam Tulshiram Tekade and ors.
(MANU/MH/0867/2005), Lalitprabha Krishnaji and Ors.
V/s. Yunus Khan and Ors. (MANU/MH/2134/2016). It is
observed by the Honsble High Court that the Court may
appoint Court Commissioner where it is necessary to have
assistance of scientific investigation. In the present case,
measurement is already on record dated 27/11/1991. It is
contention of defendant no.2 that plinth were already there on
existence constructed by defendant no.3, whereon plaintif
has erected the buildings.
14. On perusal of written statement submitted by
defendant no.3 vide Exh.44, in Para 31, it is mentioned that
some of the plinth were demolished by the defendant no.2
and thereafter some buildings came to be erected. It is
surprising to note that there are no such allegation of plaintif
in the plaint, which are averred by the defendant no.3.
15. Ld. Advocate for defendant no.2 relied on Basanta
Kumar Swain V/s. Baidya Kumar Parida and others
(1987 SCC OnLine Ori 37), Sanjay Namdeo Khandare
V/s. Sahebrao Kachru Khandare and others [2001(2)
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N/m No. 4242/19 in Suit No. 1519/02. 7 Order.
Mh.L.J. 959], Union of India and another V/s. M/s. Kripal
Industries (1998 SCC OnLine Raj 51). It is well settled that
no Court Commissioner shall be appointed by the Court for
collection of evidence.
16. In continuation of aforesaid discussion, following
points are important to note :
A) It was repeatedly mentioned by defendant no.2
that he has constructed the buildings on alleged
plinth constructed by defendant no.3.
B) In last 17 years, no steps obtained by plaintif for
independent measurements by TILR.
C) It is never denied by plaintif or defendant no.3, in
respect of collusion between plaintif and defendant
no.3 or in respect of allegation that defendant no.3
is sister concern of plaintif.
D) Issues are framed by this Court on 30/10/2009 vide
Exh.6, for about 8 to 10 sittings, defendant no.2
has conducted cross-examination of PW 1.
17. It is to note that plaintif has purchased the suit
premises by Conveyance Deed dated 19/03/1965. Defendant
no.3 is owner of the suit premises on record. Therefore, as per
development agreement dated 24/07/1986, defendant no.3
has handed over the suit premises for development to
defendant no.2. Neither plaintif nor defendant no.3 has
challenged the sanction plan of 1971. Plaintif is relying on
survey map of the measurement dated 27/11/1991.
Defendant no.3 has already submitted a map vide Exh.54.
Considering all aspects in total, it is crystal clear that plaintif
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N/m No. 4242/19 in Suit No. 1519/02. 8 Order.
has preferred this motion with intent to proliferate the trial.
The motion being devoid of merit, it deserves to be dismissed.
18. The suit is 17 years old, both side may file list of
witnesses and specific schedule of hearing by which it can be
fixed for once in a week to dispose of at the earliest. Hence
the order :
- ORDER -
1. Notice of Motion No. 4242/2019 stands dismissed.
2. N/m No. 4242/19 is disposed of accordingly.
3. Both side to file list of witnesses and specific
schedule of hearing by which it can be fixed for
once in a week to dispose of at the earliest, as suit
is 18 years old.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 04/02/2020. Mumbai.
1. Dictated on : 03/02/2020.
2. Transcribed on : 04/02/2020.
3. Signed on : 05/02/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 4242/19 in Suit No. 1519/02. 9 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
05/02/2020. 1.55 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of
Judgment/Order
04/02/2020.
Judgment/Order signed by P.O. on 05/02/2020.
Judgment/Order uploaded on 05/02/2020.
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