Interim Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 364/21 in S.C.Suit No. 1083/2020. 1 Order
MHCC010011472021
Presented on : 05-02-2021
Registered on : 05-02-2021
Decided on : 21-08-2023
Duration : 2 years, 6 months, 16 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 364 OF 2021
IN
S. C. SUIT NO. 1083 OF 2020
Kankaraji Lodha and others )...Plaintiffs
Versus
Praveen Selvadia and another )...Defendants
Shri Pranesh Gada, Advocate for the plaintiff.
Smt. Sumandevi Yadav, Advocate for the defendant no.1.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 21st AUGUST, 2023.
ORDER
1. The plaintiff has taken out the notice of motion for
restraining the defendant from prohibiting the plaintiffs’ lawful use of
the lift installed in the building Mani Mansion, 63, Pedder Road,
Mumbai-26 (hereinafter referred to as, ‘the suit property’).
2. Perused notice of motion, reply filed by the defendant.
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N/m No. 364/21 in S.C.Suit No. 1083/2020. 2 Order
Heard both advocates at length and therefore following points arose for
my determination alongwith my findings thereon for the reasons
enumerated below :
SR.NO. POINTS FINDINGS
1. Whether plaintiffs are entitled for the
relief prayed ?
In the Affirmative.
2. What order ? As per final order.
REASONS
3. The advocate for the plaintiff submitted that the plaintiff
has been occupying their respective flats as lawful tenant of the
building. The plaintiff occupying their flats and use the lift for their
access since long but recently the defendant occupied Flat No. 401 and
since then he denied the right of the plaintiff to use the lift and
obstructed the plaintiff for using the lift. The advocate for the plaintiff
relied on the ratio laid down in the case of Kanaiyalal Chandulal Monim
V/s. Indumati T. Potdar and Another 1958 SCR 1394 that -
(4) Any landlord, who contravenes the provisions of
sub-section (1) shall, on conviction, be punishable with
imprisonment for a term which may extend to three
months or with fine or with both.
Explanation I.-In this Section essential supply or
service includes supply of water, electricity, lights in
passages and on staircases, lifts and conservancy or
sanitary service.
Explanation II.-For the purposes of this section,
withholding any essential supply or service shall include
acts or omissions attributable to the landlord on
account of which the essential supply or service is cut
off by the local authority or any other competent
authority.
On relying above authority the advocate for the plaintiff submitted that
the lift is a essential service. Therefore landlord or any of the person not
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N/m No. 364/21 in S.C.Suit No. 1083/2020. 3 Order
entitled to restrain occupant for using essential supply or services.
4. Defendants’ contention that the plaintiff was using the
respective flats by climbing stairs. The lift is not in use, it was lying
unattended in damage condition. When defendant occupied his flat, the
defendant by his own cost installed the lift, at that time plaintiff had
given no objection and admitted that they will not use the lift. The
defendant has invested 80 lakhs rupees in installing and maintaining
the lift. Therefore, prayed for rejection of notice of motion.
5. On going through the notice of motion and reply filed by
the parties alongwith documents on record, it is a matter of record that
as per Maharashtra Rent Control Act the lift is essential service as like
water, electricity, light, staircase and sanitary services. Any person who
contravenes the above provision i.e. restrain the occupants from using
the same is punishable with imprisonment.
6. It is not in dispute that plaintiffs are flat owners of the
building Mani Mansion. They were residing in suit flat since long is also
not disputed. The contention of the defendant that the plaintiffs were
not using the lift. The defendant has invested more than 80 lakhs
rupees in installation and maintenance of the lift. At the relevant time
plaintiff had given no objection and refused to use the lift. But
surprisingly defendant has not filed on record any such ‘no objection
certificate’ given by the plaintiff in favour of the defendant. The
defendant has not filed on record any document to show that he by his
own expended huge amount of 80 lakhs rupees in starting, installing
and maintaining the lift. It is a matter of record that the plaintiffs are
residing on 3rd and 4th floor and lift being a essential service, therefore,
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N/m No. 364/21 in S.C.Suit No. 1083/2020. 4 Order
defendant cannot restrain the plaintiff from using the same. At the same
time plaintiffs also directed to contribute the maintenance charges. But
lift being essential services, in my opinion, plaintiff is entitled for the
relief prayed. Hence, I answer point no.1 in affirmative and pass
following order :
- ORDER -
1. Notice of Motion No. 364/2021 is allowed in following terms :
(i) The defendants are restrained from obstructing plaintiff in
lawfully using of the lift installed at the suit property. The plaintiffs
shall also directed to contribute in maintaining the lift and electricity
charges.
2. N/m No. 364/2021 is disposed off accordingly.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 21/08/2023. Mumbai.
1. Dictated online on : 21/08/2023.
2. Placed for correction on : 22/08/2023.
3. Checked on : 24/08/2023.
4. Correction carried on : 25/08/2023.
5. Signed on : 25/08/2023.
6. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25/08/2023. 5.56 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 21/08/2023.
Judgment/Order signed by P.O. on 25/08/2023.
Judgment/Order uploaded on 25/08/2023.
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