Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4555-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4555 OF 2019
IN
SUIT NO.6921 OF 2001
(HIGH COURT SUIT NO.703 OF 2001)
CNR NO.MHCC01-012479-2019
Haji Issup Mohamd Sulleman’s Botawala
Charities & Ors.
… Plaintiffs
Vs.
The Municipal Corporation of Greater
Bombay & Anr.
… Defendants
Appearances:
Ld. Adv Barucha for plaintiffs.
Ld. Adv Toor for the defendant No.1.
Ld. Adv Priti Shah for the defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATED : 05th MARCH 2021
ORDER
The plaintiff has taken out this notice of motion under
Order XXXIX Rule 1A read with Section 151 of the Code of Civil
Procedure, 1908 (in short ‘CPC’).
2. On the point of maintainability of the notice of motion, the
learned Advocate for defendant No.2 has submitted that as per the
provisions of Rule 1(a) of Order XXXIX and Section 151 of CPC, a
Page 1 of 7
-- 1 of 7 --
NM No.4555-2019
temporary injunction can be granted in favour of the defendant. She
has laid strong emphasis on the following citations.
1. Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth
Hiralal (AIR 1962 SC 527)
2. Tanusree Basu and Ors. Vs. Ishani Prasad Basu and Ors.
(AIR 2008 SC 1909)
3. Madan Mohan Vs. Revti Prasad and Anr. (AIR 1977
Rajashtan 191)
4. Ramalah Vs. Gowdappa (I.L.R. 1989 Kar 962).
3. In Manohar Lal Chopra’s case (
cited supra), the Hon’ble
Supreme Court has observed as under:-
The Courts have inherent jurisdiction to issue temporary
injunctions in circumstances which are not covered by the
provisions of Oder XXXIX, C.P.C. There is no such
expression in S.94 which expressly prohibits the issue of a
temporary injunction in circumstances not covered by
Order XXXIX or by any rules made under the Code. It is
well settled that the provisions of the Code are not
exhaustive, or the simple reason that the Legislature is
incapable of contemplating all the possible circumstances
which may arise in future litigation and consequently for
providing the procedure for them. The effect of the
expression ‘If it so prescribed’ is only this that when the
rule prescribes the circumstances in which the temporary
injunction can be issued, ordinarily the Court is not to use
its inherent powers to make the necessary orders in the
interest of justice, but is merely to see whether the
circumstances of the case bring it within the prescribed
rule. If the provisions of S.94 were not there in the Code,
the Court could still issue temporary injunctions, but, it
could do that in the exercise of its inherent jurisdiction. No
party has a right to insist on the Court’s exercising that
jurisdiction and the Court exercises its inherent jurisdiction
only when it considers it absolutely necessary for the ends
of justice to do so. It is in the incidence of the exercise of
Page 2 of 7
-- 2 of 7 --
NM No.4555-2019
the power of the Court to issue temporary injunction that
the provisions of S.94 of the Code have their effect and not
in taking away the right of the Court to exercise its
inherent power.
4. Manohar Lal Chopra’s decision was followed in Tanusree
Basu’s case and Madan Mohan’s and Ramalah’s case (
cited supra).
5. The learned Advocate for the plaintiff has not challenged
the maintainability of the present notice of motion.
6. Admittedly, on or about 05.11.2019, the plaintiff had put
up an iron gate at the entrance of the passage between the buildings
namely Rajgir Chambers and Botawala Building (hereinafter referred to
as “
the disputed open space”).
7. The learned Advocate for defendant No.2 has fervently
submitted that the act of the plaintiff in putting up an iron gate in the
disputed open space without obtaining any permission from the
Municipal Corporation of Greater (in short “
the MCGM”) during the
pendency of the present suit and thereby obstructing the access of the
members and staff of defendant No.2 to the water tank and pump
station installed in the disputed open space, is illegal. She has further
submitted that Rajgir Chambers requires urgent repairs, but because of
the iron gate installed at the entrance of the disputed open space, it
could not be carried out. She has, therefore, prayed for a mandatory
injunction directing the plaintiff to remove the iron gate installed in the
disputed open space. She has also prayed for a temporary injunction
restraining the plaintiff from obstructing the members and staff of
Page 3 of 7
-- 3 of 7 --
NM No.4555-2019
defendant No.2 from accessing the water tank and pump station in the
disputed open space.
8. Countering these submissions, the learned Advocate for the
plaintiff has strenuously submitted that the plaintiff was constrained to
put up the iron gate in the open space to safeguard it from trespassers.
He has further submitted that the plaintiff has never obstructed the
members and staff of defendant No.2 from using the disputed open
space.
9. In the affidavit filed in reply, it has been contended that
despite the efforts taken by the MCGM to demolish the illegal structure
and evict authorized occupants from the disputed open space, the issue
of encroachment continued to persist causing interference with the
peaceful possession of the plaintiff over it.
10. From the copy of the letter dated 30.12.2014, it seems that
the MCGM had demolished the unauthorized structure of one A. K.
Dasan on the open space. The plaintiff vide that letter had intimated
the Assistant Engineer of the MCGM about illegal activities on the open
space and requested him to allow them to put up an iron gate at the
entrance of the open space.
11. The copy of the letter dated 21.01.2015 shows that the
Assistant Engineer, MCGM had intimated the plaintiff to take steps to
protect their property by deploying security guards and erecting fences.
Page 4 of 7
-- 4 of 7 --
NM No.4555-2019
12. The Structural Audit Report of Rajgir Chambers is of the
year March 2018. From the copy of the letter dated 26.02.2021, it
appears that the repairs of Rajgir Chambers could not be carried out
and got delayed as many members of that society had not paid their
respective contribution for the major repairs. So, it cannot be said that
due to the iron gate put up at the entrance of the disputed open space,
defendant No.2 could not carry out repairs of Rajgir Chambers.
13. The learned Advocate for the plaintiff has submitted that
till date, the plaintiff has neither obstructed the members or staff of
defendant No.2 from using the disputed open space nor removed the
water tank and pump station or any other articles of defendant No.2
from the open space. He has further submitted that the plaintiff was
ready to keep one key of the lock put on the iron gate at the entrance of
the disputed open space with defendant No.2, but the learned Advocate
for defendant No.2 has declined that offer. Despite that, the plaintiff
would not obstruct the members and staff of defendant No.2 from using
the disputed open space until the decision of the suit, and if the suit is
dismissed on merits, the plaintiff would remove the iron gate put up at
the entrance of the disputed open space.
14. From the record, it
prima facie appears that the plaintiff
has put up the iron gate at the entrance of the disputed open space to
protect it from trespassers and encroachers. It also shows that the so-
called delay in carrying out of repairs of Rajgir Chambers was not
because of the iron gate put up at the entrance of the open space, but
because of the non-challan of their members to pay the contribution for
the repairs. Defendant No.2 has also failed to prove that the plaintiff
Page 5 of 7
-- 5 of 7 --
NM No.4555-2019
has obstructed their members or staff from using the disputed open
space.
15. Considering the above facts and the submission made by
the learned Advocate for the plaintiff, I see no good reason to pass a
temporary injunction in favour of defendant No.2. Accordingly, I hold
that the notice of motion is liable to be dismissed and proceed to pass
the following order:
ORDER
1. Notice of Motion No.4555 of 2019 is dismissed.
2. Costs shall be costs in the cause.
3. Notice of Motion No.4555 of 2019 is accordingly
disposed of.
Sd/-
R. S. PAVASKAR
Judge,
Dated : 05/03/2021 City Civil Court, Gr. Bombay
Dictated on : 05/03/2021
Transcribed on : 05/03/2021
HHJ signed on : 05/03/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
08.03.2021 3.19 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Shri. R.S. PAVASKAR (CR 12)
Page 6 of 7
-- 6 of 7 --
NM No.4555-2019
Date of Pronouncement of
JUDGEMENT /ORDER
05.03.2021
JUDGEMENT /ORDER signed by
P.O. on
05.03.2021
JUDGEMENT /ORDER uploaded
on
08.03.2021
Page 7 of 7
-- 7 of 7 --