Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.4707/19 (LCS No.3121/19)
MHCC010128722019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.4707 OF 2019
IN
LONG CAUSE SUIT No.3121/2019
Mrs. Priyanka Aniket Malandkar … Plaintiff
- Versus -
1] Municipal Corporation of
Greater Mumbai.
2] The Assistant Municipal Commissioner ... Defendants
Appearance :-
Mr. Sushil Matkar, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendants.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 16/06/2023.
O R D E R
. This is suit for perpetual injunction restraining defendant/
B.M.C., from dispossessing the plaintiff from tenements bearing No.
803, building No.A, Dattaguru CHS Ltd., C.T.S. No.388, Borla village,
Govandi, Mumbai (in short suit flat) without following due process of
law and the plaintiff has taken out this Notice of Motion for temporary
injunction under Order-XXXIX Rule-1 of The Code of Civil Procedure.
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2] In short, it is the case of the plaintiff that the plaintiff came
in possession of suit flat on the basis of allotment letter issued by
defendant/B.M.C. under one window scheme. Suit flat has been allotted
to the plaintiff in lieu of old structure which is demolished by the
Corporation. The original structure of the plaintiff has been acquired by
the Corporation and the plaintiff has been given suit flat as permanent
alternate accommodation (in short P.A.P.) as per policy of the
Government. It is further stated the plaintiff is having right, title and
interest in suit flat. The plaintiff is having electricity bill, maintenance
receipt bank passbook showing address of suit flat.
3] It is further stated that person claiming to be the
representative of the defendant/Corporation frequently visiting suit flat
and threatened to dispossess the plaintiff and vacate suit flat without
following due process of law.
4] It is further stated that the Corporation had issued notice
under Section 314 of The Mumbai Municipal Corporation Act (in short
the M.M.C. Act) and the plaintiff submitted documents as per the said
notice. It is further stated that the Corporation verified documents and
held the plaintiff eligible for alternate accommodation and, accordingly,
the Corporation allotted suit flat to the plaintiff. It is further stated that
on 14/10/2019 officers from M/East ward came to suit flat and
threatened to dispossess the plaintiff.
3] It is further stated that suit flat has been allotted by the
Corporation and, therefore, it ought to have issued notice under Section
105B of the M.M.C. Act. However, without issuing notice the
Corporation threatened to dispossess the plaintiff. Therefore, the
plaintiff filed this suit for permanent injunction and taken out Notice of
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3 N/M. No.4707/19 (LCS No.3121/19)
Motion. The plaintiff has
prima facie case. Balance of convenience lies
in favour of the plaintiff and if temporary injunction, as prayed is not
granted, the plaintiff will suffer irreparable loss or injury. Hence it is
prayed that Notice of Motion be allowed.
4] Defendant/Corporation opposed Notice of Motion by filing
reply-cum-Written Statement below exhibit-2. At the outset, it is stated
that suit is not maintainable for want of statutory notice under Section
527 of the M.M.C. Act. Notice is administrative or executive act or order
and same is not open to challenge in a Court of law. The plaint discloses
no cause of action.
5] It is further stated that the plaintiff is not a Project Affected
Person (in short P.A.P.). On the contrary, the plaintiff is trying to
encroach upon suit flat on the basis of forged and fabricated documents.
It is further stated that on 4/6/2013 Assistant Officer, Estate
department had received vacant possession of tenements of building
No.A, Dattaguru SRA CHSL., plot No.388, Borla village, Govandi,
Mumbai. It is further stated that after receiving the plaint and
documents defendant checked record available in the office and
surprised that suit flat has not been allotted to any person and keys of
flat are lying in the office of M/East ward. The plaintiff is not in
possession of suit flat. As such, the plaintiff has made false statement.
The plaintiff is not a P.A.P. and holder of P.A.P. tenements. The plaintiff is
claiming equitable relief of injunction on the basis of fake and
fabricated documents and suppressed material facts, therefore, the
plaintiff is not entitled for any relief.
6] It is further stated that Assistant Commissioner issued letter
dated 24/11/2021 to Assistant Engineer, Maintenance, S/Ward to verify
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allotment letter relied by the plaintiff. By letter dated 24/11/2022 it is
informed by Estate Officer, M/East ward that the allotment letter and
possession receipt are not as per the Annexure-II. It is further stated
that as per Annexure-II the plaintiff is not P.A.P. and allotment letter and
possession receipt are not issued by Assistant Engineer, Maintenance, S
Ward. The name of the plaintiff is not in the Annexure-II. It is further
stated that the Corporation has never given NOC for transferring
electricity meter in favour of the plaintiff. It is further stated that the
documents filed by the plaintiff alongwith plaint are fake and
fabricated. The plaintiff is not entitled for relief of temporary injunction.
On these grounds, the Corporation prayed for dismissal of Notice of
Motion.
7] Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
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5 N/M. No.4707/19 (LCS No.3121/19)
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
8] Learned advocate for the plaintiff submitted that the
plaintiff is in use, occupation and settled possession of suit flat. It is
further submitted that the Corporation had issued notice under Section
314 of the M.M.C. Act calling upon the plaintiff to submit documents
for deciding eligibility for alternate accommodation. Accordingly, the
plaintiff submitted necessary documents and after verifying documents
submitted by the plaintiff, the defendant/B.M.C. allotted suit flat to the
plaintiff as a P.A.P. vide letter dated 12/7/2018. Learned advocate for
the plaintiff relying on photocopy of allotment letter below exhibit-A
annexed to the plaint submitted that the plaintiff has
prima facie proved
possession over suit flat. It is further submitted that even the plaintiff is
no having right, title and interest over suit flat, at this stage, the
plaintiff has proved her possession. In such circumstances, the plaintiff
cannot be dispossessed without following due process of law.
9] On the other hand, learned advocate for the Corporation
vehemently opposed Notice of Motion contending that the plaintiff is
not a P.A.P. and on the basis of fake and fabricated so called notice
under Section 314 of the M.M.C. Act and allotment letter the plaintiff
filed this suit. It is further argued that the plaintiff has not come to the
Court with clean hands. As such, the plaintiff is not entitled for any
relief. It is further argued that signature, outward number and the
entire contents of notice as well as allotment letter are false. It is further
submitted that the plaintiff has prepared fake and fabricated documents
and claiming possession over suit flat, therefore, the plaintiff is not
entitled for relief claimed.
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10] The plaintiff has taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C.P.C. Plaintiff is
seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a
prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
11] It is contention of the plaintiff that the Corporation had
issued notice under Section 314 of the M.M.C. Act calling upon the
plaintiff to submit documents for deciding eligibility for permanent
alternate accommodation. Accordingly, the plaintiff submitted
documents and after verifying documents submitted by the plaintiff she
has been held eligible for permanent alternate accommodation and,
accordingly, the Corporation has allotted her suit flat.
12] In support of contention the plaintiff relied upon allotment
letter. On perusal of the allotment letter of suit flat has been issued on
12/7/2018. Learned advocate for the Corporation submitted that
possession of suit flat has been received by Assistant Engineer, M/East
Ward on 14/6/2017 and it is case of the plaintiff that suit flat has been
allotted to the plaintiff in 2018. I do not understood how it is possible
that flat of which possession was received by Assistant Engineer, Estate,
M/East ward in 2017 has been allotted to the plaintiff as a P.A.P in
2018.
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13] On perusal of possession receipt dated 11/1/2017
produced by defendant/B.M.C., it appears that Assistant Officer, Estate,
M/East Ward has received possession of suit flat on 14/6/2017. I do not
understand how possession of suit flat was given in 2018 to the plaintiff
of which possession was received by the concerned ward office in 2017.
Thus, documents relied by the plaintiff appear to be doubtful. The
Corporation has denied claim of the plaintiff that she is a P.A.P. The
plaintiff has not produced copy of Annexure-II in support her contention
that she is a P.A.P. As earlier stated, the documents relied by the plaintiff
appear to be doubtful. In the circumstances, the plaintiff ought to have
produced copy of Annexure-II showing her name in the list of eligible
persons. The allotment letter of suit flat is alleged to be given to the
plaintiff on 24/5/2017 i.e. before taking possession by Assistant Officer,
Estate, M/East ward. This fact is not digestible. This shows that
document relied by the plaintiff i.e. allotment letter is doubtful.
14] On perusal of documents produced by defendant, it appears
that the plaintiff has failed to establish that she is a P.A.P. and suit flat
has been allotted as alternate accommodation in lieu of old structure.
Prima facie the allotment letter exhibit-A annexed to the plaint appear
to be doubtful.
15] The Hon'ble Apex Court in the matter of Padhiyar Prahladji
Chenaji (Deceased) Through L.R.s Versus Maniben Jagmalbhai
(Deceased) Through L.R.s and Ors. (Civil Appeal No.1382 of 2022) held
that, “
Applying the law laid down by this Court in the aforesaid decision
to the facts of the case on hand and once the rights of the parties are
adjudicated and the defendant No.1 is held to be the true owner on the
basis of the registered sale deed and on payment of full sale
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consideration, it can be said that due process of law has been followed
and thereafter the plaintiff is not entitled to any permanent injunction
against the true owner”. It is further held that, “
Due process of law
means that nobody ought to be condemned unheard. The due process
of law means a person in settled possession will not be dispossessed
except by due process of law. Due process means an opportunity to the
defendant to file pleadings including written statement and documents
before the court of law ”. In the case on hand, the parties have filed
their pleadings and documents in support their case. The plaintiff has
failed to establish legal possession over suit structure. Therefore, I hold
that the plaintiff is not entitled for relief of temporary injunction.
16] In the case on hand, the plaintiff
prima facie failed to
establish legal possession over suit flat. As such, the plaintiff is not
entitled for relief of injunction as prayed. As stated earlier, the alleged
allotment letter exhibit-A appears to be doubtful. Thus, I hold that the
plaintiff has miserably failed to establish legal possession over suit flat.
Moreover, in view of Padhiyar Prahladji Chenaji (Deceased) Through
L.R.s Versus Maniben Jagmalbhai (Deceased) Through L.R.s and Ors.
(supra) the plaintiff is not entitled for injunction as prayed against
defendant/B.M.C. who is owner of suit flat. The plaintiff has not made
out
prima facie case for grant of injunction. Balance of convenience
does not tilt in favour of the plaintiff. No irreparable loss or injury
would be caused if injunction is refused. Accordingly, I answer points
No.1 to 3 in the negative and in answer to point No.4 pass following
order :-
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9 N/M. No.4707/19 (LCS No.3121/19)
O R D E R
Notice of Motion No.4707/2019 is dismissed.
Date : 16/06/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
23/06/2023 03:35 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 16/06/2023
ORDER Typed on 20/06/2023
ORDER signed by P.O. on 23/06/2023
ORDER uploaded on 23/06/2023
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