Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.4592/19
MHCC010125942019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 4592 OF 2019
IN
S.C. SUIT No. 2922 OF 2019
Sudhakar Damodar Worlikar ...Plaintiff.
Vs.
1. Pravin Dharmaraj Worlikar & Anr. …Defendants.
Appearance
Learned Advocate Mr. Anil Mishra for the plaintiff.
Learned Advocate Mr. Ashok Sarogi for the defendants.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date : 14th September, 2022
O R D E R
This notice of motion is taken out by the plaintiff for
restraining the defendants or their agents from demolishing the ground
floor structure of the suit building and to restrain the defendants from
dispossessing the plaintiff from room Nos.1 and 2 on the ground floor of
the suit building.
In brief the plaintiff's case is as follows:
2. The plaintiff is uncle of the defendants and the defendants
are his brother's sons. The plaintiff's grandfather Mr. Bhavania Govind,
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was the owner of the piece and parcel of the land together with
building consisting of ground plus one storeyed building having terrace
room situated at 86A, Shanta Sadan, S.K. Bhaye Marg, Near Fish
Market, Worli village, Mumbai 400 030, same is the suit property. The
plaintiff's grandfather Bhavania died leaving behind the plaintiff's father
Damodar who demised in the year 1993 leaving behind the plaintiff, his
brothers Dharamraj and Vilas. Defendant No.1 is the son of Dharamraj
and defendant No.2 is the son of Vilas.
3. It is the case of the plaintiff that the ground floor of suit
building consist of two rooms, one electricity cabin and one shop
(room) on the ground floor. On the first floor there are two rooms
which are occupied by defendant Nos.1 and 2 and one room is on the
terrace. The plaintiff has occupied two rooms of the ground floor and
one room on the terrace. The electricity bill in respect of room No.1
(ground floor) is in the name of plaintiff and room No.2 (ground floor)
is in the name of Yatishthe plaintiff's son.
4. It is further contention of the plaintiff that the defendants
have attempted to put unauthorized construction on the upper floor.
Therefore, the plaintiff had filed complaint dated 25.02.2019 to
Municipal Corporation. The defendants due to said complaint got
annoyed and started demolishing upper floor. Therefore, the plaintiff
informed the same to the Municipal Corporation and the defendants
had stopped demolishing the upper floor. Later on, they again started
said illegal activities and therefore, by letter dated 05.03.2019, the
plaintiff informed the same to the Municipal Corporation. In spite of the
same, the defendants continued with their unauthorized work,
therefore, the plaintiff once again filed the complaint on 30.08.2019. In
spite of the objection of the plaintiff, the defendants have illegally
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demolished the terrace room, water tank and first floor of the suit
building. It is alleged that said act of the defendants is against the Will
dated 25.12.1977 executed by the plaintiff's father Damodar. Due to
the acts of the defendants, now, there is leakage on the ground floor
premises occupied by the plaintiff. The plaintiff apprehends that the
defendants may demolish the ground floor of the suit building. The
plaintiff apprehends that he will be dispossessed by the defendants.
Therefore, the plaintiff has filed this suit seeking declaration that the
defendants' act of demolishing the upper floor is illegal and unlawful.
He also sought relief to direct the defendants to repair the ceiling of
ground floor of the suit building. He also sought relief to restrain the
defendants from demolishing the ground floor and to restrain the
defendants from dispossessing the plaintiff and for the aforesaid interim
reliefs, the plaintiff has filed this notice of motion.
5. The defendants by affidavitinreply resisted this notice of
motion. They adopted their contentions made in the written statement
Exh.3. It is their contention that the plaintiff by filing present suit wants
to suggest that there is family settlement, but no such settlement is
brought on record. The Will dated 25.02.1997 though referred is not
produced by the plaintiff. By the Will dated 26.09.1978, all the three
parties are entitled to get equal proportionate share in the suit property.
The plaintiff is trying to establish the rights in the suit premises. There
is no such room situated on 2nd floor. First floor of the building was in
dilapidated condition. As the property is not yet divided, it was
mutually agreed that the defendants shall also be accommodated on the
ground floor of the building. The defendants have appointed necessary
contractor and they started necessary work for tenantable repairs. The
defendants have no intention to demolish the ground floor save and
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except to carry out necessary repairs. The defendants have no intention
to demolish any such part of the ground floor since the suit building is
in dilapidated condition. The defendants have addressed various letters
to the office of Municipal Corporation. The defendants do not intend to
make any addition to the existing building. No permission is required
for repairs. The plaintiff has suppressed material facts. At no point of
time the plaintiff was in possession of the second floor. With these
contentions, the defendants have prayed to dismiss notice of motion.
6. The plaintiff by fling affidavit in rejoinder denied the
contentions made by the defendants in their reply. He submits to allow
the notice of motion.
7. Heard learned Advocate for the plaintiff and learned
Advocate for the defendants. Following points arise for my
consideration to which I record my findings thereon with reasons as
follows :
POINTS FINDINGS
1 Whether the plaintiff has prima facie case ? Yes
2. Whether the balance of convenience lies in
favour of the plaintiff ? Yes
3. Whether the plaintiff would suffer irreparable
loss, if injunction is not granted ?
Yes
4. What order ? Motion is
allowed.
R E A S O N S
AS TO POINT Nos.1 to 3 :
8. The plaintiff in this case prays for interim injunction
restraining the defendants from demolishing the ground floor of the suit
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building. He also prays for interim injunction to protect his possession.
In paragraph No.12 of the written statement, the defendants have made
it clear that they have no intention to demolish the ground floor of the
suit building in question save and except carrying out necessary repairs.
Therefore, the defendants are not intending to demolish the ground
floor. In the written statement, it is the case of the defendants that, the
first floor of the suit building was in dilapidated condition, it was
agreed that the defendants shall be accommodated on the ground floor
and the building should be repaired. Thereby the defendants admit that
they were not in occupation and possession of the ground floor
premises.
9. In paragraph No.8 of the written statement also it is their
contention that these defendants are unable to occupy the firstfloor
premises and since they are not entitled to occupy the ground floor, the
present suit is filed with malafide intention. Therefore, on the basis of
these contentions, it appears that the plaintiff alone is occupying the
ground floor premises. It is the contention of the defendants that the
upper floor of the suit building was in dilapidated condition, none was
occupying the said premises and when the work of repairs was started,
all the parties accommodated on the ground floor. It is further
contention of the defendants that since the firstfloor premises was not
in a position to occupy and part of the same had fallen down, the suit
has been filed to keep the defendants away from their own premises
and to stop work of tenantable repairs. The photographs attached with
the plaint show that the first floor has been demolished. The defendants
in their contention admit that they have appointed the contractor for
the repairs of the suit building but later on said work could not be
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completed. The plaintiff in support of his contention has relied upon the
correspondence dated 25.02.2019, 05.03.2019, 19.03.2019, 30.08.2019
made with Bombay Municipal Corporation alleging that the defendants
are illegally demolishing the part of the suit building. The defendants
in their compilation of documents have also relied upon the
correspondence made by them with Bombay Municipal Corporation
alleging that the structure of suit building is in dilapidated condition.
They also requested for permission to repair the same. There is no
other correspondence made by Bombay Municipal Corporation is on
record to satisfy that the structure of the suit building is in dangerous
condition. There is also no document to show that Bombay Municipal
Corporation has issued any notice to the occupants of the suit building
that the structure of the suit building is dangerous. The defendants from
their contentions intend to carry out repair works of the suit building.
There is dispute between the plaintiff and the defendants. The upper
part of the suit building has been demolished, whether that has been
demolished with the permission of the Municipal Corporation or not?
that is also required to be seen. Presently, there is no such document to
show that upper part of the suit building is demolished with the
permission of the Bombay Municipal Corporation. The plaintiff is in
occupation of the ground floor. He relied on electricity bill, passport of
his son, copy of ration card and copy of Aadhar card. The defendants in
their contention have admitted that the plaintiff is occupying the
ground floor. The plaintiff apprehends that the defendants may
demolish the structure of the ground floor as they have demolished
upper floor of the suit building. There is substance in the apprehension
raised. However, the defendants in their written statement mentioned
that they have made submission that they do not intend to demolish the
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ground floor structure of the suit building hence, there is no need to
pass any separate order of injunction in that regard. The defendants
can be directed to act as per their statement. The said statement of the
defendants is accepted and they are directed to act accordingly.
10. As aforesaid the plaintiff is in possession of the ground
floor of the premises, the defendants were occupying the first floor of
the premises, the facts on record are now showing the possession of the
plaintiff in respect of the ground floor premises. If the suit building
requires any repairs or demolition as per the rule of Bombay Municipal
Corporation, the plaintiff or the defendants shall be required to follow
the due process accordingly. As the facts on record show that the
plaintiff is in possession of the ground floor premises, his possession
needs to be protected hence, the plaintiff has prima facie case in that
regard. The balance of convenience to protect his possession lies in
favour of the plaintiff. If injunction restraining the defendants'
obstruction is not granted irreparable loss will be caused to the plaintiff.
Hence, I answer point Nos.1 to 3 accordingly.
AS TO POINT NO.4:
11. In view of my findings to point Nos.1 to 3, the notice of
motion is required to be allowed. Costs shall follow the event. In the
result, in answer to point No.4, I pass the following order.
ORDER
1. Notice of Motion No.4592/2019 is allowed.
2. The statement of the defendants in paragraph
12 of their written statement that they have
no intention to demolish the ground floor of
the suit building is accepted and till disposal
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of this suit they are directed to act
accordingly.
3. By the order of interim injunction the
defendants are restrained from disturbing
the plaintiff's possession in the ground floor
of the suit building.
4. If any direction from Bombay Municipal
Corporation is received in respect to the
condition of the suit building, the parties are
at liberty to act accordingly with respect to
the repairs or demolition of the suit
building. It is made clear that this order
shall not be considered as measure to
restrain the due process adopted for repairs
or for demolition, if any.
5. Costs shall follow the event.
6. Notice of Motion No.4592/2019 is disposed
of accordingly.
Date :14/09/2022 (Rajesh A. Sasne)
Dictated on : 14/09/2022. Judge, C.R.No.62,
transcribed on : 17/09/2022. City Civil Court,
Signed on : 19/09/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
20.09.2022 at 3.30 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 14/09/2022
Order signed by P.O. on 19/09/2022
Order uploaded on 20/09/2022
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