Order 4

Order Details: Order on Exhibit
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CNR NO.MHSCA30000712021
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.12
IN
R.A.E. & R. SUIT NO. 53 OF 2021
Ranjit Singh Chandhok . . Plaintiff.
Versus
Bhagwandas Santani . . Defendant.
Advocate for Plaintiff : Adv. Joseph Fernandes
Advocate for Defendant : Adv. M.A. Chandan
Coram : S.V.Deshmukh, Judge
C.R.No.32
Date : 29/09/2022
ORAL ORDER :
1. This is an application filed by the plaintiff for temporary
injunction and for appointment of Court Commissioner under
Order 26 of the Code of Civil Procedure, 1908.
2. The case of the plaintiff's in short is as under :
The plaintiff has filed suit against defendant for eviction
on the grounds of arrears of rent, additions and alterations. The
statement made in the plaint be treated as part of the application. A
notice was issued to the defendant dated 16/12/2020 about the
additions and alterations and damages caused to the first floor. It
was also informed that landlord would like to inspect. However, as
plaintiff went for inspection on 7/1/2021 the defendant did not open
the door. The additions and alterations are carried out without
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consent. The plaintiff apprehends that without his consent the
defendant will create third party rights into the suit premises. It is
necessary that by temporary injunction defendant is restrained from
creating any third party interest. There is a prima facie case and
balance of convenience in favour of the plaintiff. The plaintiff will
suffer irreparable loss, if the injunction is not granted. It is therefore,
prayed that by order of temporary injunction the defendant be
restrained from creating third party interest. It is further prayed that
Court Commissioner be appointed to find out who is in use and
occupation and ascertain the nature of additions and alterations.
The Court Commissioner be directed to take appropriate
photographs and submit report.
3. Defendant has filed reply at Exh.15 and resisted the
application. According to defendant, plaintiff has suppressed vital
facts. A tenancy agreement dated 16/4/1980 exists between original
landlord and original tenant. Right to carry out all internal repairs,
paint and colouring are conferred by the agreement. By letter dated
6/9/1981 permission is granted to join Flat No.8 and 9 by removing
wall. No objection letter is issued to Municipal Corporation dated
6/9/1981. According to defendant, pursuant to application,
permission is granted by BMC to make necessary alterations. The
original tenant has transferred the tenancy rights to the defendant.
The suit is bad for nonjoinder, as all coowners are not made as a
party. It is the case of the defendant that suit premises is his only
residential accommodation in Mumbai. The plaintiff is involved in
filing false complaint. The suit premises is structurally in same
condition for last 40 years. The suit is filed on false and concocted
grounds. The plaintiff did not give the names of person who would
accompany him for inspection. There were ongoing covid pandemic
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situation. This defendant has denied that unauthorised additions
and alterations are carried out. According to defendant,
apprehension of plaintiff is baseless and there is no question of
creating third party rights.
4. It is further case of the defendant that plaintiff cannot
take assistance of Court to collect the evidence. No Court
Commissioner can be appointed as such. It is therefore prayed that
the application be rejected.
5. Perused the proceeding. Heard both the sides. Advocate
for plaintiff rely upon decision in the case of Smt. Kamlabai
Laxman Mutraj Vs. Bherumal Verimal Haran in Writ Petition
No.8318 of 2008 dated 19/12/2008 and in the case of Suresh
Manoharlal Jumani and anr. Vs. Aasia Management &
Consultancy Pvt. Ltd. in Writ Petition No.2677 of 2013 dated
23/8/2013. Ld. Advocate for defendant rely upon decision of the
Hon'ble Bombay High Court in the case of Syed Mushtaque Ahmad
s/o Syed Ismail and others Vs. Syed Ashique Ali Khan s/o Haidar
Ali 2011(6) Mh.L.J.334 and in the case of Sanjay Namdeo
Khandare Vs. Sahebrao Kachru Khandare and others 2001(2)
Mh.L.J.959.
6. On rival contentions of both the parties, following points
arise for my determination and my findings thereon alongwith the
reasons are as under :
Sr.No. Points : Findings :
1. Does the plaintiff prove that he has
made out prima facie case in his
favour ?
. . In the negative.
2. Does the plaintiff prove that
irreparable loss would be caused to
. . In the negative.
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him in case temporary injunction is
refused ?
3. Does the plaintiff prove that balance
of convenience lies in his favour ?
. . In the negative.
4. Is the plaintiff entitled for
appointment of Court Commissioner ?
. . In the affirmative.
5. What order ? . . As per final order.
: R E A S O N S :
7. In support of application, Plaintiff has filed affidavit in
rejoinder at Exh.17 and rely upon copy of notice dated 16/12/2020
and 11/1/2021 and photographs dated 23/2/2021. Per contra,
defendant rely upon his surrejoinder at Exh.18. Defendant rely
upon documents annexed to reply viz. copy of agreement dated
16/4/1980 at Exh.A, letters at Exh.B to Exh.H.
As to Point No.1 :
8. It is not disputed that plaintiff is the landlord and
defendant is the tenant. It is the case of plaintiff that defendant has
carried out massive additions and alterations. The defendant thereby
has also changed the nature of rooms, plaintiff is therefore under
apprehension that defendant may create third party interest. Per
contra, according to defendant, the additions and alterations are
with due consent and authority. The suit premises are the only
residential accommodation for his family. The plaintiff has filed suit
on concocted grounds.
9. The suit premises are residential premises. The
defendant has produced on record tenancy agreement between
original landlord and original tenant dated 16/4/1980 (Exh.A).
Clause9 thereof authorizes tenant to transfer tenancy upon the same
terms and conditions. Clause8 confers right on tenant to carry out
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internal repairs, paint and colouring. It further appears from the
correspondence between earlier tenant and landlord namely letters
dated 6/7/1981, 17/1/1983, 29/1/1983 that the alterations are
made with the consent of the landlord. It seems that alleged work is
done much earlier and is also not unauthorised.
10. Apart from bare words of plaintiff, there is nothing to
show that defendant intend to create any third party interest. Even in
presuit notice date d 16/12/2020 there is no reference to any alleged
attempt to create third party interest. The notice mentions that
premises are not required for own business purpose although being
used for residential. There do not appear any other residential
premises of the defendant. There is no reason why he would transfer
it to third party. The apprehensions are unreasonable. The plaintiff
has prima facie failed to prove that defendant intends to create third
party rights. I therefore answer point No.1 in the negative.
As to Points No.2 and 3 :
11. I have answered point No.1 in the negative. Plaintiff has
failed to prove a prima facie case. The defendant is in possession
and is using the suit premises for his residence. It is not likely that
defendant will create any third party rights. If injunction is not
granted, plaintiff will not suffer any irreparable loss. On the
contrary, if application is allowed, defendant would be unnecessarily
burdened with injunction. I therefore answer point No.2 in the
negative.
12. The plaintiff has failed to show any prima facie
illegalities on the part of defendant. The balance of convenience as
such also is in favour of the defendant. I therefore answer point
No.3 in the negative.
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As to Point No.4 :
13. Plaintiff has prayed that Court Commissioner be
appointed to find out who is in actual possession of the suit premises.
Ld. Advocate Shri.M.A. Chandan for the defendant submits that it is
for the defendant to prove his case by leading evidence. Appointing
Court Commissioner to gather who is in possession of the suit
premises would amount to appointing Court Commissioner for
collecting evidence. The Hon'ble Bombay High Court in Syed
Mushtaque Ahmad’s case has accordingly held that Court
Commissioner cannot be appointed for collecting evidence. No court
commissioner can be appointed to investigate who is in possession.
14. That apart, it is also the contention of plaintiff that there
are unauthorized additions and alterations and Court Commissioner
be appointed to find out present prevailing conditions of the suit
premises. Ld. Advocate for plaintiff submits that inspite of notice,
defendant did not give the access and did not allow plaintiff to take
inspection. He submits that right is conferred by Section 28 Section
28 of the Maharashtra Rent Control Act on the landlord to inspect
the premises.
Section 28 of the Maharashtra Rent Control Act reads as
under :–
The landlord shall inspect the premises given on
license at a reasonable time and after giving prior notice
to the tenant, licensee or occupier.
15. It is not denied that defendant has received the notice
dated 16/12/2020 given on behalf of the landlord plaintiff. It
appears from the notice that specific date and time of inspection was
intimated to the defendant. Admittedly no inspection could be
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conducted. Plaintiff has specifically contended that the defendant
did not open the door. It appears that inspection was refused. In
such circumstance, plaintiff has every right to make application to
the Court limited for the purpose of Section 28 of The Maharashtra
Rent Control Act, 1999. The Hon'ble Bombay High Court in the
decision of Suresh Manoharlal Jumani’s case (cited supra) has
considered the scope of Section 28 and Order 26 of the Code of Civil
Procedure, 1908, and it is held that for the purpose of inspection the
landlord can take his representative to conduct measurement and to
take photographs. It is also made clear that measurement carried out
by surveyor will not be on same pedestal as that of the Court
Commissioner.
16. The application as made by the plaintiff for appointment
of Court Commissioner can as such be construed accordingly and be
allowed. The plaintiff is entitled to appointment of Court
Commissioner for the purpose of Section 28 of The Maharashtra Rent
Control Act, 1999. I therefore, answer point No.4 accordingly in the
affirmative.
As to Point No.5 :
17. Plaintiff has failed to prove a prima face case and
irreparable loss. The balance of convenience is also in favour of
defendant. The plaintiff is not entitled to temporary injunction as
prayed. I have answered point No.4 in the affirmative. The plaintiff
is entitled for inspection of the suit premises and for appointment of
Court Commissioner for such purpose. In answer to Point No.5, I
pass the following order.
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ORDER
1. The application for temporary injunction is
rejected.
2. The application for appointment of Court
Commissioner is allowed.
3. A reputed Architect is appointed as Court
Commissioner for inspection of the suit
premises under Section 28 of The
Maharashtra Rent Control Act, 1999, to assist
the plaintiff.
4. The Court Commissioner shall upon notice to
both parties visit the suit premises and
conduct the measurement. The Court
Commissioner shall prepare a hand sketch
and the detail report of measurements.
5. The Court Commissioner shall also take
photographs of the suit premises and may
carry a photographer for the said purpose.
6. Plaintiff to bear the costs of Court
Commissioner.
7. Parties may suggest names of two persons
each on or before next date as Court
Commissioner.
Bandra Mumbai. ( S.V.Deshmukh )
Date : 29/09/2022. Judge, C. R. No.32.
Order dictated & typed on : 29/09/2022.
Order checked & signed on : 07/10/2022.
.
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