Interim Order 2

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
ORDER BELOW EXHIBIT- 14
IN
R. A. E. SUIT NO. 124 OF 2023
(CNR-MHSCA-30002802023)
Smt. Janet R. Pimento ...Plaintiff
Versus
Smt. Shirley Fernandes, ...Defendant
Ms. Eventa Gonsalves, ….learned Advocates for plaintiff.
Shamim & Co., ….learned Advocate for defendant.
Coram: P. K. Kharate,
Judge, C. R. No. 35,
Date : 25th July, 2023.
ORAL ORDER:
1. The defendant has filed application stating that plaintiff
has filed present suit after 10 years of the filing of the first suit i.e. R.
A. E. Suit No. 423 of 2013. Present suit is filed on the same ground
between same parties. Hence, it is abuse of process of law. Hence, it
is necessary to stay the suit as per Section 10 of C.P.C.
2. The say filed by the plaintiff vide Exhibit- 16 stating that
the deceased Annie D’souza was the monthly tenant of the suit
premises. The previous suit i.e. R. A. E. suit No. 423 of 2013 filed on
the ground of non user of the suit premises as per Section 16 (1)(n)
of the Maharashtra Rent Control Act, 1999 and on the basis that
defendant is guilty of committing acts of waste in respect of the suit
premises within the meaning of section 108(o) of the Transfer of
Property Act. The period of six months for non use of the previous
/home/steno35/Shri. P. K. Kharate- Judge- C. R. No. 35- 2023-/July-2023/Orders/25-7/124-2023- RAE- Exh-14-appl rjctd-).odt SSC
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suit commencing from December 2012 upto June 2013. The original
tenant died on 25.02.2019 and leaving behind her only legal heir i.e.
present defendant. After death of original tenant, the present
defendant is in possession of the suit premises. Present defendant
also failed and neglected to use the suit premises. Hence, fresh cause
of action arose in favour of the plaintiff after death of original tenant.
Hence, relevant period of six months for filing present suit on the
basis of non user commencing from August 2022 upto February 2023.
Hence, cause of action both suits are different one. Hence, prayed to
reject the application.
3. Heard both sides at length. It is no doubt that the
previous suit filed against mother of present defendant who was
original tenant. The most important thing is that previous suit is filed
on the basis that mother of defendant who was tenant at the time of
filing of the suit is not using the suit premises from December 2012
to June 2013 i.e. prior to six months of filing of the suit. But
meantime the original tenant died on 25.02.2019. The present
defendant added in place of original tenant as defendant. Hence,
naturally the previous suit is based on the non use of the suit
premises by mother of defendant. Moreover, there is another ground
of eviction under section 108(o) of the Transfer of Property Act.
4. On perusal of present suit, the most important thing is
that the plaintiff had filed on record the electricity bill of the suit
premises. On perusal of electricity bill of the suit premises, it appears
that there is ‘0’ consumption from July 2022 to December 2022. It
means present defendant is also not using the suit premises after
death of her mother. But suddenly she has started the renovation
/home/steno35/Shri. P. K. Kharate- Judge- C. R. No. 35- 2023-/July-2023/Orders/25-7/124-2023- RAE- Exh-14-appl rjctd-).odt SSC
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work in the suit premises as per photographs filed by the plaintiff.
Hence, the plaintiff has correctly filed present suit on fresh cause of
action. Hence, as per Section 16(1)(n) of the Maharashtra Rent
Control Act, present suit is filed on the basis of non use of the suit
premises from August 2022 to February 2023 by the present
defendant. Moreover, it is settled position of law that plaintiff as a
landlord can file fresh suit on the basis of fresh cause of action.
Hence, section 10 of C.P.C. is not applicable in the present case.
Hence, there is no merit in the application of the defendant. Hence, I
pass the following order.
: O R D E R :
1. The application Exhibit-14 is rejected.
2. No order as to costs.
(Dictated and pronounced in Open Court.)
Bandra -Mumbai. ( P. K. Kharate )
Date : 25.07.2023 Judge, C. R. No.35
Order dictated on : 25.07.2023
Order checked & signed on : 25.07.2023
/home/steno35/Shri. P. K. Kharate- Judge- C. R. No. 35- 2023-/July-2023/Orders/25-7/124-2023- RAE- Exh-14-appl rjctd-).odt SSC
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