Bombay High Court
M/S. Gupta Photo Frame Thr. Its ... vs Municipal Corporation Of Greater ... on 4 September, 2018
osk 20-aost-16253-2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST.) NO. 16253 OF 2018
WITH
CIVIL APPLICATION (ST.) NO. 16254 OF 2018
M/s.Gupta Photo Frame ... Appellant
V/s.
Municipal Corporation of Gr. Mumbai ... Respondent
• Mr.Prashant Aher for the Appellant.
• Mrs.Madhuri More, for the Respondent-MCGM.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
DATE : 4 th SEPTEMBER, 2018. P.C. : 1] This Appeal is directed against the order dated 20th April,
2018, passed by the City Civil Court, Mumbai, thereby refusing the ad- interim relief in the Draft Notice of Motion filed in L.C.Suit No.1202 of 2018.
2] This Notice of Motion was taken out by the present Appellant seeking ad-interim relief to direct Respondent-Municipal Corporation to reconstruct/install/fix the iron shutter removed on 23rd February, 2018, in pursuance to the notice dated 16 th August, 1/3 ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:35:44 ::: osk 20-aost-16253-2018.odt 2017, issued under Section 354-A of the MMC Act or in the alternative to allow the Appellant to re-construct/install/fix that iron shutter. 3] At the outset itself, it has to be observed that the relief which the Appellant is claiming is that of the mandatory injunction that too at the ad-interim stage. Needless to state that at the ad- interim stage such relief of mandatory injunction cannot be granted. Secondly, in order to show that the shutters were removed illegally by the Municipal Corporation, there must be the positive evidence on the part of the Appellant and that can be adduced only at the time of the trial and not at the ad-interim stage.
4] The trial Court has considered the photographs and record and came to the conclusion that earlier there were two shutters; however, new shutters were fixed by replacing the old shutters by demolishing the wall in between two shutters, one big shutter was fixed. Admittedly, this is done without obtaining permission for removing said wall and installing one shutter at the place of two shutters. Whether it is the tenantable repairs or otherwise, it will be considered at the time of the trial. Needless to state that at this stage ad-interim relief for mandatory injunction cannot be granted. The trial Court has rightly dismissed the said Notice of Motion and in the 2/3 ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:35:44 ::: osk 20-aost-16253-2018.odt Appeal, no interference is warranted therein.
5] The Appeal holds no merit, therefore stands dismissed. 6] In view of dismissal of the Appeal, nothing survives in the Civil Application and hence, it stands disposed of.
[DR.SHALINI PHANSALKAR-JOSHI, J.] 3/3 ::: Uploaded on - 05/09/2018 ::: Downloaded on - 06/09/2018 01:35:44 :::