Final Order 1

Order Details: Notice of Motion
Pdf Text: Draft N/m in Suit No. 1528/15. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
DRAFT NOTICE OF MOTION
IN
LONG CAUSE SUIT NO. 1528 OF 2015
(CNR NO. MHCC010061732015)
Govindbhai Laxman Padaya and others ...Plaintiffs
Versus
The Mumbai Municipal Corporation of Greater Mumbai ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 16th DECEMBER, 2019.
Mr. D.A.Barot, Advocate for Plaintiffs.
Ms. Tondwalkar, Advocate for Defendant / MCGM.
ORDER
Ld. advocate Barot for plaintiff submitted that plaintiff runs
a school on suit property Survey No.4, CTS No.8 and Survey No.276,
CTS No.581, admeasuring 9000 sq. yards and 8937 sq.yards.
2. According to plaintiff, in view of Lease Deed dated
07/06/1944, lessor Nasli Wadia has given the suit premises to the
plaintiff. Instantly some service quarters and one BMC school came to
be demolished by the MCGM, it is requested to peruse various
photographs that construction activities are in progress and defendant
MCGM is intending to encroach on plot of plaintiff.
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Draft N/m in Suit No. 1528/15. 2 Order.
3. Heard ld. advocate Tondwalkar for defendant at sufficient
length. It is requested to peruse order of the Hon'ble High Court in
A.F.O. No. 471/2019 dated 27/11/2019, it is nowhere observed that
injunction as prayed be granted and to restrain the defendant from
development of the area of service quarter and school of BMC. It is
claimed to reject the motion.
REASONS FOR ORDER
4. In view of arguments of both side at length, following
material points are arise i.e.
a) In view of the order of the Hon'ble High Court dated
27/11/2019, plaintiff is directed to amend the plaint and
restrict to the extent of the area 8937 sq. yards.
b) There is no injunction granted against the MCGM by the
Hon'ble High Court, with a view that BMC school and
service quarters are standing in the premises of suit
property of the plaintiff.
c) There is no scaled map nor measurement done by the
plaintiff from TILR to prima facie conclude that BMC school
and service quarters of sweepers, standing since 50 years
are by way of encroachment in suit premises.
5. Ld. advocate Barot for plaintiff admits that there is no
measurement done by the plaintiff prior to submission of the plaint.
Admittedly plaintiff has not claimed to remove encroachment of MCGM.
However plaintiff had knowledge in respect of a school and service
quarters of MCGM.
6. I have perused Judgment of this Court in L.C.Suit No.
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Draft N/m in Suit No. 1528/15. 3 Order.
3601/2007 dated 23/09/2009. Plaintiff has approached the Court with
area 8937 sq. yards only. It was the contention of plaintiff in that suit
that defendant may encroach on suit property.
7. There was no pleading by plaintiff in L.C.Suit No.
3601/2007 that impugned structure of BMC i.e. school and service
quarters were erected by way of encroachment in suit property. Prima
facie it appear that plaintiff is intending to restrict the defendant from
development of quarters and school premises and to grab the property
as it was leased out to the plaintiff by Nasli Wadia in 1944. It appear
from the record that plaintiff is failed to approach the Court with clean
hands.
8. Plaintiff is at liberty to establish his claim on the suit
property to the extent of 8937 sq.yards and mention this notice of
motion again after completion of measurement. Hence the notice of
motion stands rejected at the draft level. Hence the order :
ORDER
1. Draft Notice of Motion in Suit No. 1528/2015 stands
rejected.
2. Plaintiff is at liberty to submit fresh Notice of Motion upon
completion of measurement through TILR.
3. Notice of Motion be sent to registration for statistical
purpose.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 16/12/2019. Mumbai.
1. Dictated on : 16/12/2019.
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Draft N/m in Suit No. 1528/15. 4 Order.
2. Transcribed on : 17/12/2019.
3. Signed on : 18/12/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19/12/2019. 2.39 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 16/12/2019.
Judgment/Order signed by P.O. on 18/12/2019.
Judgment/Order uploaded on 19/12/2019.
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