Order 4

Order Details: Order on Exhibit
Pdf Text: 1 Exh. 20 in 2a Appeal No. 30/2022
CNR No. MHSCA3-00-0062-2022
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(APPELLATE BENCH)
(BANDRA BRANCH)
Order Below Exhibit 20
In
2a Appeal No. 30/2022
In
R.A.E. & R. Suit No. 136/411 of 1994
Smt. Ashadevi widow of
Ratanlal Jain
Appellant (Org. defendant No.2)
V/s.
1) M/s. Laxmi Associates &
Ors.
Respondents (Org. plaintiff,
defendant no. 1(a), Org.
Defendant No. 3)
Learned advocate Shri M.A. Chandan for the appellant.
Learned advocate Shri J.G. Damani for the respondent.
Coram: Smt. A.S. Khadse,
Addl. Chief Judge &
Shri D.R. Mali, Judge.
C.R. No. 31 (B.B.)
Date: 13.12.2024.
O R D E R
(Per D.R. Mali, Judge)
1) This is an application filed by the appellant for
suspension of the order dated 30.03.2022 to the extent of depositing
interim mesne profits @ Rs. 50,000/- per month.
2) The appellant submitted that the respondent had filed a
suit for recovery of possession of the suit premises. The said suit
came to be decreed vide judgment and decree dated 15.11.2021.
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2 Exh. 20 in 2a Appeal No. 30/2022
This appeal has been filed against the said judgment and decree. In
this appeal, the appellant filed an application for stay of execution of
decree. As per the order dated 28.03.2022, this court directed the
appellant to deposit the monthly compensation @ Rs. 50,000/-. The
appellant has deposited the compensation till June 2024.
3) The appellant further submitted that MCGM has issued a
notice dated 05.04.2023 under Section 354 of MMC Act and
informed that the building has been declared as dilapidated structure
and unsafe for occupation under C-1 Category. The tenants and
respondent No. 1 had filed a Writ Petition No. 1241 of 2024 before
the Hon'ble High Court. The said writ petition came to be disposed
by an order dated 20.03.2024. The Hon'ble High Court has directed
MCGM to vacate the suit premises and demolish it.
4) The appellant further submitted that the Municipal
Corporation took measurements of the suit premises and shops
therein on 10.06.2024. The appellant has produced on record the
area statement. He submitted that the electricity connections are also
disconnected. Appellant vacated the suit premises on 21/06/2024.
Therefore, the order directing the appellant to deposit the
compensation needs to be suspended because the appellant is not in
possession of the suit premises. He submitted that he is ready to
deposit the amount of rent, however, as the suit premises have been
demolished, it is necessary to suspend the direction to deposit the
monthly compensation of Rs. 50,000/-.
5) The respondent filed reply on the overleaf of this
application and submitted that the order has been passed without
prejudice to the rights and title of the owner. Therefore, there shall
be no hurdle for the appellant to deposit the amount. It is submitted
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3 Exh. 20 in 2a Appeal No. 30/2022
that the appellant is neither tenant nor having any right. Therefore,
the respondent prayed for rejection of this application.
6) The appellant filed rejoinder and reiterated the
contentions in the application. It is submitted that the execution of
decree has been stayed subject to payment of monthly compensation.
Now, the appellant is not in use and occupation of premises and
therefore, she is not liable to pay compensation.
7) We have heard learned advocates for both the parties.
The learned advocate for appellant has submitted that the suit
building has been demolished by the Municipal Corporation and
therefore, the appellant is not in use and occupation of the suit
premises. Therefore, the order passed by this court directing the
appellant to deposit the monthly compensation needs to be
suspended. She argued that the appellant is ready to deposit the
monthly rent. She further argued that this court has power to pass
such order.
8) On the other hand, the learned advocate for the
respondents has submitted that the appellant has to deposit the
amount as directed by this court to get the stay of the decree. He
further argued that if the appellant is not willing to deposit the
amount of compensation, then the execution of decree cannot be
stayed and appellant will not get any protection. He further argued
that the appellant is avoiding to obey the order passed by this court.
9) We have perused the order dated 28.03.2022. The
appellant had prayed for stay of the execution of decree. This court
had stayed the execution of decree on the condition that the
appellant shall deposit amount of Rs. 50,000/- per month as interim
compensation. It is further observed by this court that if the appeal is
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4 Exh. 20 in 2a Appeal No. 30/2022
allowed, this order shall come to an end and the amount so
deposited shall be paid to the appellants. Therefore, the order has
been passed by taking into consideration all the future aspects. If the
appellant wish to stay the execution of the decree, then he has to
obey this order. Otherwise appellant will not get protection of stay
and decree may be executed by the respondent. Though MCGM has
demolished the premises, yet as per the settled principle of law, the
tenancy and the rights of the tenants will not be extinguished.
Therefore, if the appellant intends to exercise her rights as a tenant
then she has to deposit the amount as directed by this court. In this
situation, we are of the opinion that the order dated 28.03.2022
cannot be suspended and appellant cannot be relieved from the
liability of depositing the monthly compensation as ordered by this
court. Therefore, we do not find any merit in the application and the
same deserves to be rejected. Therefore, we proceed to pass the
following order :
ORDER
The application stands rejected with costs.
I Agree,
(A.S. Khadse) (D.R. Mali)
Addl. Chief Judge Judge,
C.R. No. 31 C.R. No. 31
13.12.2024 13.12.2024
Order dictated on : 13.12.2024.
Order typed on : 13.12.2024.
Order checked & signed on : 16.12.2024.
/home/steno31/Desktop/D.R. Mali,2024-25/2. Exhibit Orders/3.NOV - 2024/30-22-2a-Appeal-Exh20(to suspend order for deposit)13.12.24.odt
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