Order 1

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
ORDER BELOW EXHIBIT- 11
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 plaintiff has filed application stating that the present
suit is filed on the ground of non use of the suit premises as per
Section 16(1)(n) of the Maharashtra Rent Control Act. The defendant
has kept suit premises locked and unused. The entire suit premises is
infected with white ants and cobweb. The suit premises is locked
hence, plaintiff is not able to take photographs of interior of the suit
premises. The defendant after service of the summons immediately
started carrying out civil work in the suit premises. The defendant
has hired several labourers and workers and civil work is carried out
day and night through them.
2. The plaintiff has requested for inspection of the suit
premises on 11.07.2023 through personally to the defendant. The
defendant has accepted said letter. But defendant has refused to
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acknowledged the said letter. On 11.07.2023 plaintiff found that
defendant has erected a sheet on the suit premises and suit premises
is fully covered. The defendant is not permitting C. A. of plaintiff to
inspect the suit premises. Then plaintiff’s advocate informed to
advocate for defendant to give inspection of the suit premises. The
plaintiff has right to inspect the suit premises as per section 28 of the
Maharashtra Rent Control Act. The defendant is not residing in the
suit premises since several years. The plaintiff is not able to ascertain
the exact nature of damage i.e. cause to the suit premises. The
defendant will wipe out of all evidence in respect of status of the suit
premises. Hence, prayed to appoint Court Commissioner to visit the
suit premises.
3. The say filed by the defendant vide Exhibit- 15 stating
that present application is filed to create the evidence which is not
permissible under the law. The similar suit is filed by the plaintiff on
the same ground by filing R. A. E. Suit No. 423 of 2013. Present suit
is hit by section 10 of C. P. C. The present application is not under
section 28 of the Maharashtra Rent Control Act. But it is for
appointment of Court Commissioner. The landlady failed to carry out
repairs since last several years. In cross examination of earlier suit,
plaintiff has admitted the bad conditions of the suit premises. The
defendant has started tenantable repairs to prevent further leakage
during monsoon. Hence, prayed to reject the application.
4. Heard both sides at length. I have already rejected the
application of the defendant to stay the suit as per section 10 of C. P.
C. The present suit is filed on fresh cause of action as mentioned in
order below Exhibit-14. In the present case, the most important thing
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is that the electricity bill filed on record by the plaintiff in respect of
the suit premises. On perusal of said electricity bill, it appears that
suit premises is in locked conditions from July 2022 till December
2022. It means it is locked prior to six months of filing of present suit.
The plaintiff wants to bring on record another evidence of factual
internal position of the suit premises due to non use of the suit
premises. But in the present case, plaintiff has filed recent
photographs of the suit premises from which it reveals that some
structure changes are going in the suit premises along with repairs
work as admitted by the defendant. It is definitely something changes
are going to be there in the suit premises by the defendant.
5. In the present case, the plaintiff has filed on record the
notices dated 10.07.2023 and 11.07.2023 to the defendant and his
advocate as per section 28 of the Maharashtra Rent Control Act. It is
no doubt that it is right of the landlord to inspect the suit premises at
any time subject to issuance of notice. Other side the defendant has
filed evidence of gobar gas, CC Tv camera, Police complaint and
other gardening work which is not related to the subject matter.
Moreover, the defendant has filed on record the notice issued to the
plaintiff dated 10.06.2021 for repairs. But the defendant has not
obtained the permission of the court as per section 14(2) of the
Maharashtra Rent Control Act. Hence, it appears that after filing of
the present suit, defendant wants to make changes in the suit
premises or clean the suit premises for habitable conditions to
disprove the facts mentioned in the present plaint.
6. Hence, it is necessary to see Section 28 of the
Maharashtra Rent Control Act, 1999 which states as below:-
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“28. Inspection premises :- The landlord shall be entitled to inspect
the premises let or given on license, at a reasonable time after giving
prior notice to the tenant, licensee or occupier”.
7. On perusal of present application, it appears that
plaintiff wants to appoint Court Commissioner to visit the suit
premises and make the report the conditions and status of the suit
premises.
8. In the present case advocate for plaintiff relied on
citation of Hon’ble High Court in the case of Empeegee Portfolio
Services Pvt. Ltd., Vs. Mrs. Sharada Navinchandra Shah reported in
2009(1) ALL MR 516. The Hon’ble Bombay High Court held that
inspection of premises covers a critical examination, it cannot be a
casual glance. It may be to determine past and present condition of
premises. Moreover, it is also held that there is no reason to reject the
application considering scope and purpose of Order 26 of C. P. C. The
landlord at any point of time after issuing notice can inspect the
premises alone or with an Architect or other such person.
9. In the present case on perusal of application, it appears
that plaintiff want to know the past situation of non use of the suit
premises and present situation of any changes made by the defendant
in the premises. The photographs filed by the plaintiff shows that
defendant has made any changes in the suit premises. Hence, it is
necessary to allow the Court Commissioner application of the plaintiff
along with Architect.
10. Advocate for the plaintiff relied on citation of Hon’ble
Bombay High Court in the case of Suresh Manoharlal Jumani and ors
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vs. Aasia Management & Consultancy Pvt. Ltd., reported in
MANU/MH/1395/2013. The Hon’ble High Court held that the right
is given under section 28 to the landlord to carry out inspection. If
the work ‘inspection’ by the landlord would be restricted to just
observing the repairs without taking an expert with him, the right
given to the landlord vide Section 28 would not serve any purpose. It
would be rendered superfluous. Giving such an interpretation to the
said provision would be rendering the said provision otiose. As such,
the said term ‘inspection’ will have to be given wider interpretation so
as to serve the object of enacting the said provisions. The said
provision will have to be so interpreted so as to achieve the aim of
workability of the enactment as a whole while giving it a purposive
interpretation in preference to the literal or textual interpretation.
Section 28 has to be invoked in aid of other provisions of statute.
11. Hence, on perusal of above citation and facts of the
present case, it is necessary to allow the plaintiff to inspect the suit
premises through Court Commissioner considering the past and
present situation. Hence, I pass the following order.
ORDER
1) The application Exhibit- 11 is allowed.
2) Plaintiff is permitted to inspect the suit premises
along with Architect and Photographer.
3) Shri. Sujit Shrikant Joglekar is hereby appointed
as Court Commissioner to visit and inspect the
premises who is on panel of court subject to
deposit of Rs. 20,000/- by the plaintiff in the
court.
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4) Court Commissioner do the work as per
provisions of law and submit report within
one month.
(Dictated and pronounced in Open Court.)
Bandra -Mumbai. ( P. K. Kharate )
Date : 25.07.2023 Judge, C. R. No.35
Order dictated on computer : 25.07.2023
Order checked & signed on : 25.07.2023
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