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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. DESHPANDE, J.
Suresh Shankar Rokade - Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. - Respondents
Appeal From Order No. 276 of 2018, Appeal From Order (St.) No. 9483, 9490, 9493, 9498, 9503, 9505, 9510, 9514, 9518, 9522, 9525 of 2018 With Civil Application No. 358 of 2018, Civil Application (St.) No. 9484, 9491, 9494, 9499, 9504, 9507, 9511, 9515, 9520, 9523, 9526 of 2018
Decided On : 27-06-2018
Mumbai Municipal Corporation Act, 1988 - Section 351 - Controversy - Pleadings of above LC suits and notices - Advocate waives notice for Respondent Corporation counsel Naidu waives notice for Respondent - After counsel for respective Respondent waives service of notice for final hearing all matters are taken up for final hearing forthwith - All these appeals challenge judgment and order March passed Judge City Civil Court Division Mumbai - In all these cases though impugned order that order is passed in separate notice of motion in separate - Suit filed by each Appellant - By impugned order Judge of Court below has rejected respective notice motion taken out for temporary injunction in respective - Suits – Held, In present case plaintiffs pointed out by placing on record two very important documents of Corporation to show that structures are standing prior - Therefore on consideration these vital documents requires me to record finding that approach of court below is perverse and cannot sustain in eye of law because of non consideration of vital documents which goes to root of matter - Aforesaid evaluation of pleadings and documents on records leads me to record find that each of plaintiff has successfully demonstrated existence of prima facie case in their favor - Once court records finding that Appellants plaintiffs have prima facie case in their favoring my view court is also required to record finding that balance of convenience is also in their favor and if injunction is not granted there will be irreparable injury to them - All appellants plaintiffs are residing in premises for which notice of demolition is issued - If notice is allowed to given effect then their structures will be demolished to extent as it is mentioned in notice thereby causing serious prejudice to each of plaintiff - That would make them suffer which cannot be compensated in terms of money - Evaluation of Appellants case and Respondents version insofar as notice of motion for injunction here foreheads me to pass following order – Appeal allowed
1. All these 12 appeals from order are heard simultaneously. Looking to the controversy involved in these appeals, I am of the view that those can be decided and disposed of finally at the admission stage.
2. Admit. Learned advocate Mrs. Meena Bhoir waives notice for Respondent Corporation, and learned counsel Mr. Yogesh Naidu waives notice for Respondent No. 2. After the counsel for the respective Respondent waives service of notice for final hearing, all the matters are taken up for final hearing forthwith.
3. All these 12 appeals challenge the judgment and order dated 5th March, 2018 passed by the learned Adhoc Judge, City Civil Court, Borivali Division, Dindoshi, Mumbai. In all these cases, though the impugned order is dated 5.3.2018, that order is passed in separate notice of motion in separate L.C. suit filed by each of the Appellant. By the impugned order, learned Judge of the Court below has rejected the respective notice of motion taken out for temporary injunction in the respective L.C. suits.
4. Appellant in Appeal from order No. 276 of 2018 filed L.C. Suit No. 3732 of 2017, and has taken out Notice of Motion No. 8 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9483 of 2018 filed L.C. Suit No. 3733 of 2017 has taken out Notice of Motion No. 9 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9522 of 2018 filed L.C. Suit No. 3736 of 2017 and has taken out Notice of Motion No. 12 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9414 of 2018 filed L.C. Suit No. 3727 of 2017 and has taken out Notice of Motion No. 3 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9518 of 2018 filed L.C. Suit No. 3734 of 2017 and has taken out Notice of Motion No. 10 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9525 of 2018 filed L.C. Suit No. 3726 of 2017 and has taken out Notice of Motion No. 2 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9510 of 2018 filed L.C. Suit No. 3731 of 2017 and has taken out Notice of Motion No. 7 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9490 of 2018 filed L.C. Suit No. 3729 of 2017 and has taken out Notice of Motion No. 5 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9493 of 2018 filed L.C. Suit No. 3728 of 2017 and has taken out Notice of Motion No. 4 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9503 of 2018 filed L.C. Suit No. 3735 of 2017 and has taken out Notice of Motion No. 11 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9505 of 2018 filed L.C. Suit No. 3730 of 2017 and has taken out Notice of Motion No. 6 of 2018 in the said suit. Appellant in Appeal from Order (St.) No. 9548 of 2018 filed L.C. Suit No. 3725 of 2017 has taken out Notice of Motion No. 1 of 2018 in the said suit.
5. It is to be observed here that pleadings of above L.C. suits and notices of motion are identical except number of their tenements. Similarly, all the separate orders dated 5.3.2018 disposing of all aforesaid notices of motion in respect of L.C. suit is also identical, word by word. Therefore, I thought convenient to decide and dispose of all these appeals against the order by passing this common judgment and order.
6. All civil suits challenge the notice dated 9.11.2017 bearing Reference No. RS/DO3RS021/351 – MMC – RS 293 No. 01 under Section 351 of Mumbai Municipal Corporation Act, 1988 and speaking order dated 10.12.2017 passed by the Designated Officer i.e. Assistant Engineer (B & F) R/South Ward, issued against each of the Appellant in respect of tenements which one is in their respective possession. The plaintiff has sought decree for declaration that this notice is illegal, null and void, so also a decree of permanent injunction is claimed against the Respondent No. 1/defendant No. 1, its officers, servants and person claiming through it that they should not take any action pursuant to impugned notice and the
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