Interim Order 1

Order Details: Order
Pdf Text: Draft N/M in SU2467/19 1 Order
MHCC040078612019
IN THE CITY CIVIL COURT FOR GR.MUMBAI AT DINDOSHI
BORIVALI DIVISION, MUMBAI
DRAFT NOTICE OF MOTION
IN
S.C.SUIT NO.2467/2019
(CNR NO:MHCC040078612019)
Prafulla Jaya Shetty
….. Plaintiff
Vs.
The Assistant Municipal Commissioner
& Anr.
…. Defendants
Advocate Mr.P.D. Gandhy for plaintiff.
Advocate Mrs. Basudkar for defendant/MMC.
CORAM : HIS HONOUR JUDGE
SHRI L.S.CHAVAN.
(C.R. No.14)
Date : 10th October 2019
:ORDER:
1. This draft notice of motion is taken out by the plaintiff to
appoint the authorized Architect as a Court Commissioner to visit the
suit premises and to carry out inspectionmeasurement of the suit
premises and to grant temporary injunction to restrain the defendant
from demolishing the suit premises till the joint inspection
measurement.
-- 1 of 5 --
Draft N/M in SU2467/19 2 Order
2. It is submitted that, the plaintiff by filing this suit
challenged the Area Statement pasted on 27/02/2019 in common
premises of Umrai Sadan Building and sought the relief of declaration
by contending that, the Area Statement is inaccurate and not as per the
actual area at side and same is not binding on the plaintiff. The learned
advocate for plaintiff argued that, the plaintiff is tenant and in
possession of the suit premises i.e. garage admeasuring 642 sq. ft. She is
paying the necessary charges for the assessment in respect of the entire
suit premises. The assessment charges is calculated for 59.60 sq. meters
which is equivalent to around of 650 sq. ft. The said area reflects in the
description and details of capital value calculation. They argued that in
the list of Area Statement, the area of suit premises is shown only 179
sq. ft. instead of 642 sq. ft. The said Area Certificate is inaccurate,
without actual measurement and same is contrary to the assessment
record of the defendant. Hence, requested to appoint the Architect as a
Court Commissioner to visit the suit premises, to measure the suit
premises and to submit the report. It is also prayed to restrain the
defendant from demolishing the suit premises till the measurement of
the suit premises.
3. Per contra, learned advocate Mrs. Basudkar for MCGM
argued that, the Umrai Sadan Building is declared as dilapidated
structure. The defendant has issued notice U/sec 354 of MMC Act to the
owner and occupiers of the Umrai Sadan Building to vacate their
premises to pull down the building. They also issued Area Statement as
per the approved plan. The copy of Area Statement and approved plan
is placed on record. The present suit is filed by plaintiff only to prolong
the demolition action of Umrai Sadan Building. Hence, requested for
refusing adinterim injunction.
-- 2 of 5 --
Draft N/M in SU2467/19 3 Order
4. Admittedly, Umrai Sadan Building is declared as
dilapidated structure and required its demolition. The defendant has
issued notice U/sec 354 of MMC Act to the owner and occupiers of the
Umrai Sadan Building to vacate their premises. The plaintiff is tenant of
garage/shed which is abutting to the Umrai Sadan Building. As per the
contention of the plaintiff, the suit premises i.e. garage is independent
structure and it is not a part of Umrai Sadan Building. Therefore, the
said notice is not applicable to the suit premises. However, the plaintiff
by filing L.C. Suit No. 3239/2017 challenged the notice U/sec 354 of
MMC Act issued by the defendant. She by taking the notice of motion,
sought the relief of injunction to restrain the defendant from taking
action upon the notice U/sec 354 of MMC Act. After hearing the both
sides, the said notice of motion was dismissed by this Court on
12/04/2019. Being aggrieved by the said order, the plaintiff had filed
Appeal From Order No. 591/2019 before the Hon'ble High Court. The
Hon'ble High Court dismissed the Appeal From Order dated
10/07/2019. The said order was challenged by plaintiff before the
Hon'ble Supreme Court by filing SLP No. 18072/2019. The said SLP
also came to be dismissed on 09/08/2019. It means the order of
dismissal of notice of motion is confirmed up to the Hon'ble Apex Court.
In view of the said order, the plaintiff has no right to seek the injunction
against the defendant from taking action pursuance to the notice U/sec
354 of MMC Act. Therefore, she is not entitled for the relief of
injunction.
5. So far as the Area Certificate is concerned, the learned
advocate for the plaintiff stated that, the area of suit premises is
admeasuring 642 sq. ft. But, in the list of Area Statement dated
27/02/2019 it is shown only 179 sq. ft. They relied on the assessment
-- 3 of 5 --
Draft N/M in SU2467/19 4 Order
bill alongwith description and details of Capital Value Calculation sheet.
Wherein the area of suit premises is shown 59.60 sq. meters which is
equivalent to 650 sq. ft. But, the assessment bill is not a basic
document to ascertain the exact area of the suit premises. It is used only
for collection of taxes. Therefore, the assessment bill is not useful to
hold that, the area of suit premises is 642 sq. ft. On the contrary, the
defendant filed the list of Area Statement and sanction plan of Umrai
Sadan Building. Wherein the area of suit premises is shown 180 sq. ft.
as per the approved plan. The plaintiff cannot claim the excess area
which is shown in the approved plan unless show any documentary
evidence. Admittedly, plaintiff is tenant of the suit premises. But, she
has not produced tenancy agreement or any documentary evidence
except assessment bill to ascertain that, she is in possession of 642 sq.
ft. On the contrary, defendant has produced the Area Statement dated
9/10/2019 which shows that initially the Area Statement was issued on
27/02/2019. Thereafter, as per the request of Navin Jagani it was
revised on 23/03/2019. Again complaint was received from the tenant
as well as the owner for the fresh Area Statement. Therefore, the
defendant has issued fresh Area Statement as per the approved plan
dated 09/10/2019 and canceled the earlier Area Statement dated
27/02/2019. In view of the issuance of the fresh Area Statement and
cancellation of earlier Area Certificate, the suit has become infructuous.
The fresh Area statement and approved plan make it clear that, the area
of the suit premises is 180 sq. ft. I do not find any ambiguity in the
Area statement and approved plan. As the Umrai Sadan Building is
dilapidated condition. It is already observed that the suit premises is the
part of Umrai Sadan Building. The defendant has issued the fresh Area
Certificate as per the approved plan. Therefore, I am not inclined to
grant any relief including appointment of Architect as a Court
-- 4 of 5 --
Draft N/M in SU2467/19 5 Order
Commissioner. Therefore, the notice of motion taken out by plaintiff is
lack of merit and liable to be dismissed. Hence, following order.
ORDER
1. Draft Notice of Motion is hereby dismissed.
2. No order as to cost.
3. Draft Notice of Motion is hereby disposed of accordingly.
4. The Draft Notice of Motion be registered for statistical purpose.
10/10/2019 (L.S. CHAVAN)
Judge, City Civil Court,
Borivali Division, Dindoshi, Mumbai
Dictated on : 10/10/2019
Transcribed on : 10/10/2019
Signed by HHJ on : 11/10/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF the ORIGINAL
SIGNED JUDGEMENT/ORDER.”
Uploaded on: 11/10/2019 Stenographer:Mrs.J.S. Gawai
Name of the Judge (with Court
room no.)
HHJ Shri L.S.Chavan.
Court Room no.14
Date of pronouncement of
judgment/order:
10/10/2019
Judgment/order signed by P.O. on 11/10/2019
Judgment/order uploaded on 11/10/2019
-- 5 of 5 --