Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010126572019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4609 OF 2019
IN
LC. SUIT NO.164 OF 2019
Mrs. Hayat Bi Kadir Ahmed Ansari
Age: 58 years, Occ: Housewife,
Residing at : Khindipada Police chowki
Beat No.1 Dargah Road, Khindipada
Bhandup (W), Mumbai 400 078. ... PLAINTIFF.
Versus.
The Municipal Corporation of
Greater Mumbai, a body Corporate
Constituted under BMC Act 1888,
Having ward address at S Ward,
Municipal office, 2nd floor,
LBS Marg, Bhandup W,
Mumbai 400 078. ... DEFENDANT.
CORAM : HIS HONOUR JUDGE
R. K. DESHPANDE.
(Court Room No.11).
DATED : 18.06.2026
APPEARANCE :
Ld. Adv. Jafari for plaintiff.
Ld. Adv. Mr. S.R. Yadav and Adv. Mrs. Sheetal Metakari for
defendant/BMC.
ORDER
The plaintiff has taken out this notice of motion seeking relief of
temporary injunction directing the defendant, their servants, agents and
any other persons claiming by, under or through them to open the door
of the plaintiff and to remove/demolish the wall more particularly
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described under the colored portion of rough sketch, which is
constructed by the defendant in the pathway area disturbing the
peaceful enjoyment, usage and possession of the plaintiff over the
pathway areas.
2. Defendant filed its reply and strongly opposed the present motion
by way of filing its reply on record below Exh.3.
3. Perused the record and proceeding. Heard both sides.
4. Considering the submissions, advanced before this Court,
following points are arise for my determination to which my findings
are given below:-
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out
prima facie case for granting temporary
injunction ? … In the negative.
(ii) Whether the balance of convenience lies
in favour of plaintiff ? … In the negative.
(iii) Whether the plaintiff would suffer
irreparable loss, if relief claimed for is
not granted ? … In the negative.
(iv). What Order ? … As per final Order.
5. I have gone through the thoughtful consideration to submission
made by the advocate for rival parties.
-:REASONS:-
AS TO POINT NO.1 TO 3:-
6. It is the contention of plaintiff that, she is having a room premises
admeasuring 10 X 10 sq. fts. and a shop premises admeasuring 10 X 15
sq. fts. The shop is facing towards the main road, and behind the shop
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the residential room premises are situated. The room premises are used
for the residence of the plaintiff and in the shop premises the plaintiff is
running a small shop. Both these residence premises and shop premises
hereinafter referred as the “suit premises”. It is contended that plaintiff
is in use and occupation of the suit premises since 1976 and having
valid documents in her possession to prove her use and occupation.
According to plaintiff, her residential premises having a door towards
the dustbin and this door is used by the plaintiff for the egress. The
defendant having a garbage collection area (public dustbin) besides to
the suit premises. The plaintiff is using the door opens towards the
garbage dustbin without any interference of the defendant since its
inception.
7. Besides the suit premises, there was public dustbin and the
people used to throw the garbage in this common area. In the year
2013 the plaintiff went to Delhi and in absence of the plaintiff, the
defendant had constructed this garbage (dustbin) and at that time the
defendant had closed some portion of the door from ground level and
this plaintiff using the door by climbing two steps. The plaintiff is using
the door for her egress and there was no obstruction on the part of the
defendant. The defendant used to collect the garbage from the public
dustbin and she was enjoying her residential premises as well as door
and way. The plaintiff submits that her door was open since inception
and the defendant had not taken any objection at that time and the
plaintiff is using the door, and way since inception using the same
continuously without any interference/disturbance from the defendant.
However, in the month of November 2018 the defendant had started
the renovating the garbage bin and tried to closed the door of the
plaintiff, open towards garbage bin. Than the plaintiff had written a
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letter to the defendant on 23.11.2018 and informed the defendant that
she had no objection about the renovating the garbage bin. However
she requested to the defendant that the door of the plaintiff and the
approaching way should not be blocked and the door and the way
should be kept open so that plaintiff have egress. The plaintiff had
written a letter to the defendant on 26.11.2018. The letter replied by
defendant letter dated 05.12.2018 and informed to this plaintiff that it
is not possible for defendant to kept open the door and the approaching
way of for plaintiff. By way of letter dated 05.12.2018. Hence, plaintiff
replied notice on 07.12.2018 and stated on same lady had come and
forcibly door of the passage of the plaintiff renovating garbage bin.
8. By mentioning certain other facts, plaintiff submits that the
defendant by the act of omission had obstructed the easement of the
plaintiff and as plaintiff is using the door and the since inception since
1976 and as the plaintiff had illegally had closed the door. Hence by
way of the present notice of motion, plaintiff is seeking injunction
against the defendant retraining the plaintiff restraining defendant from
removing or demolishing wall constructed by plaintiff.
9. The argument advanced by Ld. advocate for plaintiff strongly
opposed by the Ld. advocate for defendant. It is argued on behalf of the
advocate for defendant that it was incumbent on the part of plaintiff, to
give statutory notice before filing the suit as required under section 527
of the MMC Act, but plaintiff failed to do so. More-so, as per prevailing
policy of defendant, the concerned department of defendant have
carried out work of reconstruction of the existing dust-bin on urgent
basis in order to avoid nuisance create due to garbage on that site and
to provide better facility to local people and the safety of structure for
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people/local residence to avoid any mis-cheap or untoward incident in
future. It is argued on behalf of defendant that during the construction
the person having name Mr. Kadir Shaikh residing behind the said
dilapidated dust-bin. Informing to stop work. Therefore, this office
issued letter to Sr. Inspector of P.S. Bhiwandi dated 01.12.2018, as well
reminder letter dated 14.12.2018. The defendant submitted that the
defendant have completed said work of reconstruction of existing
dilapidated dust-bin to provide basic clean and proper dust-bin facility
to near-by local residence. So the plaintiff has not entitled for relief of
injunction as sought.
10. According to the defendant Nagma Nagar and people of nearby
surrounding area were using the said dust-bin for throwing all waste
and there is no alternative facility available to resident of said vicinity. It
is argued on behalf of defendant that by suppressing the material facts,
the plaintiff is relief of injunction and hence she is not entitled for the
same.
11. In the light of submissions advanced before this Court, I have
gone through the record.
12. It is not disputed that the alleged suit premises of plaintiff is
prima facie appears to have ben situated just near to public garbage
dust-bin, and the people in the vicinity used to throw the garbage in the
common area. Record shows that by giving reply/notice dated
05.12.2018, to the plaintiff, defendant-corporation have directed the
plaintiff not to create any obstruction while renovating the public dust-
bin and further-more by way of said notice, defendant also informed the
plaintiff that as there was dust-bin. Hence, they can’t left the space open
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for egress for the plaintiff from the said dust-bin.
13. The plaintiff has not filed any document on record in order to
show her ownership and possession over the suit premises. In short no
documents are attached with the motion about it authorization of the
suit premises, appears to have been constructed by the plaintiff, on the
open land of defendant just adjacent to the public dustbin.
14. It is not disputed that the defendant-corporation have already
completed the work of reconstruction of existing dilapidated dust-bin in
order to provide basic clean and proper dustbin facility to nearby local
residence. In such situation, the contention of plaintiff that, the
defendant corporation constructing new wall which is constructed by
defendant in the pathway area disturbing the peaceful possession of
plaintiff is not acceptable.
15. Record prima facie shows that there are two doors are available
for the egress of plaintiff’s house and the work of renovation of public
dustbin as well as construction of wall is already completed.
16. In view of the above facts, the plaintiff has failed to make out
prima facie case. Therefore, the balance of conveyance does not lie in
favour of plaintiff. Irrespective of the fact that if the wall constructed by
the defendant is demolished then irreparable loss would not be caused
to the plaintiff. As plaintiff failed to make out necessary ingredient for
grant of temporary injunction. Therefore, in such contingency notice of
motion is liable to be dismissed. Hence I answer point no.1 to 3 in the
negative and in the result to point no.4 I proceed to pass following
order.
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ORDER
Notice of Motion no.4609 of 2019 is dismissed and disposed of.
Date:18.06.2026
(R. K. Deshpande)
Judge
City Civil Court
Mumbai
Dictated on : 18.06.2026
Transcribed on : 18.06.2026
Checked on : 18.06.2026
Signed on : 18.06.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
18.06.2026
Name of the Stenographer
Mrs. V.N.Rajgole.
Name of the Judge (with Court Room No.) HHJ Shri R. K. Deshpande
(Court Room No.11).
Date of Pronouncement of Judgment/Order 18.06.2026
Judgment/Order signed by P.O. on 18.06.2026
Judgment/Order uploaded on 18.06.2026
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