Order 1

Order Details: Order on Exhibit
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CNR NO.MHSCA-30006972023
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.17
IN
R.A.E. SUIT NO. 312 OF 2023
1. Mrs. Ashmi Atul Parekh and ors. . . Plaintiffs.
Versus
1. Mr. Rajesh Himmatlal Shah and ors. . . Defendants.
Coram : A.S. Pandagle, Judge
C.R.No.32
Date : 30/10/2023.
ORAL ORDER :
1. Perused the application and say filed thereon.
2. This is an application filed by the defendant for showing
urgency that the plaintiff has sought the status-quo order and now
they themselves have violated the order of this Court and therefore
the defendant is seeking justice before this Court.
3. By filing present application it is contended that as per
order dated 1/9/2023 this Court passed the status-quo order and
which is extended till next date i.e. 18/10/2023. Further joint pursis
was filed by both parties on 26/9/2023. Even after granting status-
quo, the plaintiff has started to demolish the entire building
including the suit property and has already pulled out the window
safety grills of the suit premises violated the status-quo order. The
suit premises is not in human habitable safeness condition. The
plaintiff had sought status-quo order and now they themselves have
violated the order of this Court, therefore, defendants have no other
option but to seek justice before this Court.
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4. On the other hand, plaintiff by giving handwritten reply
contended that application is false, frivolous and without any
supporting affidavit of the defendants. Plaintiffs have not demolished
the suit building, the plaintiffs have not violated the order of status-
quo at all. In absence of documents on affidavit of the defendants,
the plaintiffs are not admitted the allegations made in the application
and therefore submitted that the application may be dismissed.
5. Plaintiff also by filing reply Exh.18 on 9/10/2023
resisted the application and contended that the application filed by
defendant is not maintainable and liable to be dismissed with
compensatory costs. It is further contended that the defendants have
not come before this Court with clean hands, suppressed various
material facts and documents from this Court. The MCGM has
already issued notice dated 27/6/2023 under Section 354 of MMC
Act. The said notice is issued to the owners as well as occupants/
tenants also. As per the said notice the suit building is in ruinous
condition likely to fall and dangerous to any persons occupying,
residing to or passing by such building. Against the said notice the
defendants filed Writ Petition (L) No.18921 of 2023 before the
Hon'ble High Court. The Hon'ble High Court, by order dated
19/7/2023 disposed off the said writ petition. It is categorically
mentioned in said order in para 2 that the defendant No.3 is not
against the demolition. Thereafter MCGM by letter dated 21/9/2023
intimated about the disconnection of electricity and water
connection of dilapidated suit building. This notice was also issued
to tenants/occupants of the suit building. Defendants are also aware
about the same. Accordingly the MCGM on 26/9/2023 disconnected
electricity and water connection of the suit building. Subsequent to
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disconnection of electricity and water connection the defendant
vacated the suit premises and removed their all articles and
belongings from the suit premises. By letter dated 27/9/2023 the
plaintiff No.3 intimated MCGM about appointment of structural
Engineer for demolition. Thereafter MCGM by letter dated
4/10/2023 directed the plaintiffs to demolish the suit building with
proper safety precaution and to start demolition within 7 days from
receipt of the letter. Under such circumstances, the plaintiffs have
complied with the order of MCGM, plaintiffs have at their own have
not demolished the building but at the MCGM’s directions have
demolished it. The plaintiffs have not violated the order of this
Court. In fact, there is no order of status-quo passed against the
plaintiffs at all. The application/precipe/pursis is not supported any
affidavit of the defendants as well as there is no prayer for any relief,
therefore submitted that application may be dismissed with costs.
6. After hearing both sides, gone through the contents of
the application and reply filed thereon, also gone through the record
of the proceedings, also gone through the documents filed by both
parties. Alongwith present application Exh.17 defendants filed two
photographs showing the suit premises and the window safety grill
of the suit premises pulled out. Alongwith Exh.19 defendants filed
three photographs of suit premises showing the nature of suit
premises as is of dilapidated condition. The defendants alongwith
application Exh.19 filed notice issued by the MCGM under Section
354 of MMC Act. On the light perusal of the said notice clearly
appears that the said notice is issued by MCGM on 27/6/2023 to the
owners as well as occupants/tenants also. The said notice is issued
by the MCGM which clearly goes to show that the suit building
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structure is in ruinous condition likely to fall and dangerous to any
person occupying residing to or passing by such building and
directed to comply requisition within 7 days. Defendants alongwith
application Exh.19 filed notice dated 21/9/2023 which is in respect
of disconnection of electricity and water connection of
dangerous/dilapidated condition of suit building. From the
documents filed on behalf of defendants itself clearly shows that
MCGM has already issued notice dated 27/6/2023 under Section
354 of MMC Act. As per the said notice the suit building is in
dangerous condition likely to fall and dangerous to any person
occupying residing to or passing by such way. It also appears that
against the said notice the defendants approached to the Hon'ble
High Court by preferring Writ Petition (L) No.18921 of 2023, the
Hon'ble High Court by the order dated 19/7/2023 disposed off the
writ petition filed by the defendants. It is mentioned in the said
order in para 2 that the defendant No.3 is not against the demolition,
the copy of the said order is filed by the plaintiff alongwith reply
Exh.18. Area certificate is also issued after measurement of the suit
premises by officer of MCGM on 14/9/2023. Thereafter MCGM by
letter dated 21/9/2023 intimated about the disconnection of
electricity and water connection and accordingly, MCGM on
26/9/2023 disconnected electricity and water connection of the suit
building.
7. Present application Exh.17 is filed by defendant which is
not supported by affidavit of defendant. On the interim application
Exh.9 filed by the plaintiff against the defendants, this Court by
order dated 1/9/2023 directed defendants to maintain status-quo
over the suit property in respect of they will not create third party
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rights in the suit premises. The said status-quo order passed below
Exh.9 is against the defendants and not against the plaintiff. The
plaintiff as per MCGM’s letter dated 27/6/2023 under Section 354 of
MMC Act demolished dilapidated suit building as per the order of
MCGM. It is the obligation upon the plaintiff to take effective steps,
if the building is declared in C1 category being in dangerous and
dilapidated condition. The action taken under Section 354 of MMC
Act shall not affect inter-se right of the owners or tenants or
occupiers including right of rehabilitation in any manner. The
plaintiff acted as per notice issued by MCGM dated 27/6/2023 under
Section 354 of MMC Act, therefore there is no any violation of status-
quo order. Furthermore, the status-quo order passed below Exh.9 on
1/9/2023 is against the defendants in respect of the defendants will
not create third party rights in the suit premises and therefore, the
defendants are directed to maintain status-quo over the suit property
till date. It clearly appears that the said order is against the
defendants and not against the plaintiffs. The plaintiffs acted as per
the notice of MCGM under Section 354 of MMC Act. Hence, there is
no substance in this application, furthermore, there is no any prayer
in this application Exh.17 and therefore, application Exh.17 is liable
to be dismissed. Hence, I proceed to pass the following order.
ORDER
1. Application Exh.17 is rejected.
2. Parties to bear their own costs.
Bandra - Mumbai. ( A.S. Pandagle )
Date : 30/10/2023. Judge, C. R. No.32..
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