Order 7

Order Details: Order on Exhibit
Pdf Text: 1
IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
ORDER BELOW EXHIBIT- 25
IN
R. A. E. SUIT NO. 124 OF 2023
(CNR-MHSCA-30002802023)
Smt. Janet Ronald Pimento, ...Plaintiff.
Versus
Smt. Shirley Fernandes, ...Defendant.
Ms. Eventa Gonsalves, ...Ld. Advocate for plaintiff.
Shamim and Co., ...Ld. Advocate for defendant.
Coram : R. R. Kale,
Judge, C. R. No. 35,
Date : 15th December, 2023.
ORAL ORDER :-
Present suit is filed against the defendant for eviction on
various grounds.
2. The present application is filed by the plaintiff against the
defendant for an ad-interim relief thereby restraining the defendant
from sub-letting the suit premises, giving the suit premises on leave and
license basis and from transferring her interest, in any manner
whatsoever in the suit premises or from inducting any third party
person in the suit premises namely Room No. 3 admeasuring 325 sq. ft.
carpet area in the Lena Villa, situated at Church Road, Marol, Andheri
(East), Bombay – 400 059, bearing C.T.S. No. 1374, Village Marol,
Taluka- Andheri, B.S.D. (hereinafter referred for the sake of brevity to
as ‘suit premises’).
3. The plaintiff in brief in her application submits that, the
plaintiff has filed present suit against the defendant on the grounds
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 1 of 13 --
2
that, the defendant has committed breach of the provision of Section
16(1) (n) of the Maharashtra Rent Control Act, 1999 and as much as
she has failed to use the suit premises without reasonable cause for the
purpose for which the suit premises was let out for a continuous period
of six months immediately preceding the date of the suit and the
ground of waste as more particularly set out in the plaint. The writ of
summons is duly served upon defendant. She has filed written
statement on 25.07.2023. She has verified the written statement but she
has not disclosed her residential address in the verification given on it.
The plaintiff was constrained to take out application vide Exh. 11 for
appointment of a Commissioner to visit the suit premises and to take
the photographs of the premises during the commission work. An
application vide Exh. 11 was allowed by Ld. Predecessor of this Court as
per order dated 25.07.2023. Thereafter, on 26.07.2023 the defendant
had filed application vide Exh. 20 for stay of the operation of the order
dated 25.07.2023 passed on application vide Exh. 11. The Ld.
Predecessor of this Court was pleased to stay the order passed below
Exh. 11 till 11.08.2023. The defendant was also under direction to
submit undertaking that, she will not change the nature of the suit
premises amounting to additions and alterations. Accordingly, she filed
undertaking cum application vide Exh. 23 in pursuant to the direction
of the Court.
4. The plaintiff further submits in her application that, the
defendant is the married daughter of deceased tenant Annie D’Souza.
She is presently residing at Hill View, Hill Top, Marol Village, Church
Road, Andheri (East), Mumbai- 400 059. The writ of summons of the
suit as well as application vide Exh. 11 are served upon her at the said
residential address. She has never resided in the suit premises. In fact
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 2 of 13 --
3
the deceased tenant Annie D’souza had during her lifetime abandoned
the suit premises and had kept the suit premises unused. The plaintiff
has filed suit No. 423 of 2013 against the deceased tenant Annie
D’souza under Section 16(1) (n) of the Act, interalia on the grounds
that, the deceased tenant had failed to use the suit premises for the
purpose for which it was let out i.e. for her residential purposes, for a
period of more than six months before the filing of the suit. After
demise of tenant Annie D’souza, the tenancy rights of the suit premises
devolved on the defendant. The defendant also failed to use the suit
premises for the residential purposes i.e. for the purposes for which it
was let out. As more particularly set out in the plaint, the suit premises
was left in a complete state of disrepair. The plaintiff has described the
state of the suit premises in absolute detail in the relevant paragraphs
of the plaint. For the reasons best known to the defendant, on or from
09.07.2023 after the service of the suit summons the defendant started
carrying out extensive civil work in the suit premises. The defendant
does not reside in the suit premises and yet the defendant has started
extensive civil work in the suit premises. It is extremely evident that,
she has started carrying out the said civil work to beautify the same, so
as to attract third parties, who would be desirous of occupying the
same. The plaintiff has learnt that, the defendant has intentions to
permit paying guests in the suit premises and thereby recover paying
guests charges/monthly compensation or rent from them.
5. The plaintiff further submits in her application in brief that,
the suit premises is surplus residential premises available to the
defendant. It is in close proximity to Shivaji Chhatrapati International
Airport as well as of various industries areas like MIDC. The entire
surrounding of the suit premises is developed into a commercial hub. So
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 3 of 13 --
4
she has intention to give the suit premises to paying guests thereby
profiteer from the suit premises. The defendant has two sons namely
Sheldon and Schubert all they own three residential flats. So also, the
defendant’s husband Clave Fernandes owns and resides in a separate
apartment in the bungalow, Hill View. Thus, the suit premises is of no
use to her still she is holding it with sole motive of profiteering from the
premises and for that purpose she has renovated and converted it into a
posh premises in order to attract the paying guests. She is presently
residing in a two bedroom-hall-kitchen-flat. It is incredible that, the
defendant and her family members would prefer to reside in a ground
floor structure, leaving behind their luxurious flats which they own in a
multistorey building in the vicinity of the suit premises. Therefore, it is
apprehension of the plaintiff that, the defendant may give the suit
premises or induct paying guests in the suit premises and may profiteer
from the same, is well founded and substantial. Hence, it is just,
expedient and necessary that, pending the hearing and final disposal of
the suit the defendant be restrained by an order of injunction of this
Court from sub-letting the suit premises, giving the suit premises on
leave and license basis and from transferring her interest in any manner
whatsoever in the suit premises or from inducting any third person in it.
If application is not allowed, the plaintiff will suffer grave harm, loss
and inconvenience which cannot be compensated in terms of money. On
the contrary, defendant will not suffer any loss, harm, prejudice or
injury if interim orders as prayed for are granted in favour of the
plaintiff and against the defendant. Contending all these grounds, the
plaintiff has prayed that, her application be allowed.
6. The defendant has appeared through her counsel and has
submitted her reply at Exh.27. The defendant in her reply in brief
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 4 of 13 --
5
submits that, the present application has been taken out at this belated
stage as an afterthought and with malafide intentions to harass and
pressurize the defendant. Therefore, application deserves to be
dismissed with exemplary cost. The plaintiff has not made out any case
for grant of injunction as prayed in the application. She has taken out
application on the basis of vague apprehension created by her out of her
own imagination. The defendant has always maintained the suit
premises and kept in a habitable condition. She has been periodically
carrying out tenantable repairs to the suit premises since there has
always been heavy leakage and seepage from the terrace of the suit
property i.e. Leen Villa Chawl, Church Road, Marol, Andheri (East),
Mumbai, because the plaintiff has been carrying out extensive
gardening/plantation work from the terrace of the suit property. This
fact has been admitted by her in R. A. E. Suit No. 423 of 2013 in cross
examination.
7. The defendant further submits in her reply in brief that,
suit property is a single structure comprising of 8 rooms/units and 2
common toilets with a terrace above 8 rooms. The said terrace is in
exclusive possession of the landlord, where the plaintiff has doing
plantation/gardening work and also has installed heavy machinery for
Gober gas plant. The plaintiff has admitted in her cross examination in
R. A. E. Suit No. 423 of 2013 that, though suit property is more than
60-70 years old structure, the plaintiff has not carried out any repairs in
it in last several decades/years i.e. more than 20-30 years. Hence, the
tenants are required to carry out their own repairs in order to keep the
suit premises in a habitable condition. The defendant had earlier also
obtained permission for carrying out tenantable repairs to the suit
premises. The suit premises has been regularly used by the defendant
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 5 of 13 --
6
and her family members. However, it is not possible and practical to
stay in it continuously since the landlady had mischievously and
malafidely refused to give permission to the defendant to construct the
toilet inside the suit premises. In fact the plaintiff and her son have
constructed toilets in other rooms and also have allowed other tenants
to construct toilets in their respective rooms after taking heavy
compensation for granting the permission to construct toilet. The
defendant denies each and every allegation and contentions made in
the application in toto and repeat, reiterate and maintain all that is
stated by her in written statement.
8. The defendant has no intention to give the suit premises for
paying guests purpose or make profit from it as falsely alleged and put
the plaintiff to strict proof thereof. The plaintiff had initially filed above
suit more than 10 years and now filed the present suit on the very same
ground, however, the plaintiff had never taken out any such
applications for injunction. The defendant got sentimental values
attached with the suit premises as since her childhood she has stayed in
it. Even now she continues to periodically use and occupy the suit
premises. However, it is not practical to continuously stay in the suit
premises without toilet facility available therein. The defendant denied
that, she has renovated the suit premises and has converted the same
into a posh premises for attracting the paying guests as falsely alleged
and put the plaintiff to strict proof thereof. The present application is
filed only on the basis of apprehension. However, the plaintiff has
miserably failed to point out any instances or grounds for grant of
injunction as prayed in the present application. Hence, application be
dismissed with exemplary cost. Contending all these grounds, the
defendant has prayed for rejection of the application.
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 6 of 13 --
7
9. From the contents of the application and say filed thereon,
following points arise for my determination. I have given my findings
thereon for the reasons stated as under : -
Sr. nos. Points Findings
1. Whether the plaintiff has prima facie case
in her favour?
Yes.
2. Whether the plaintiff has proved that,
balance of convenience lies in her favour?
Yes.
3. Whether the plaintiff has proved that,
irreparable loss will cause to her if
application is not allowed?
Yes.
4. What order ? Application
stands allowed.
: R E A S O N S :
As To Point Nos. 1 to 3 :-
10. The Point Nos. 1 to 3 are interlinked and interwove to each
other, therefore to avoid repetition it is desirable to discuss altogether.
Heard Ld. Advocate Ms. Eventa Gonsalves on behalf of the plaintiff and
Ld. Advocate Mr. S. Shamim on behalf of defendant.
11. The Ld. Advocate on behalf of plaintiff vehemently argued
in consonance with the present application. The Ld. Advocate on behalf
of defendant vehemently argued further argued that,as per the
contentions made in the reply vide Exh.27 and written statement vide
Exh.18. The Ld. Advocate further argued that, the present application
is not tenable on mere apprehension of the plaintiff; it is not possible
and practical for defendant to stay in the suit premises continuously
since the landlady i.e. plaintiff had mischievously and malafidely
refused to give permission to her to construct the toilet inside the suit
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 7 of 13 --
8
premises;the plaintiff does not have prima facie case, balance of
convenience also does not lie in her favour and hence, application be
rejected.
12. Grant of temporary injunction is governed by three basis
principles i.e. prima facie case ; balance of convenience and irreparable
injury which are required to be considered in proper manner after
considering the facts and circumstances of each case where party to the
suit seeks for temporary injunction. The prima facie case means that the
court must be satisfied that, there is a serious question which should be
tried at the hearing. It is a substantial question raised bonafide which
needs investigation and a decision on merits. The balance of
convenience means the comparative mischief or inconvenience to the
parties. The inconvenience to the plaintiff if temporary injunction is
refused would be balanced and compared with that to the defendant if
it is granted. If the scale of inconvenience leans to the side of the
plaintiff, then alone interlocutory injunction should be granted. The
court must be satisfied that, the comparative mischief, hardship or
inconvenience which is likely to be caused to the applicant by refusing
the injunction will be greater than that which is likely to be caused to
the opposite party by granting it.
13. The court while exercising discretion in granting or
refusing injunction should exercise sound discretion and should attempt
to weigh substantial mischief or injury likely to be caused to the parties,
if the injunction is refused and compare it with that which is likely to be
caused to the opposite party if the injunction is granted. If on weighing
conflicting probabilities, the court is of the opinion that balance of
convenience is in favour of the applicant, it would grant injunction,
otherwise refuse to grant it.
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 8 of 13 --
9
14. I have considered all the submissions made by the parties
According to the plaintiff, she had filed previous suit i.e. R. A. E. Suit
No. 423 of 2013 against previous tenant i.e. Annie D’souza on the
ground of non user of the suit premises as per Section 16(1) (n) of the
Act. It is further case of the plaintiff that, after demise of original tenant
the defendant has been added as a party to that suit and present suit is
filed against the tenant i.e. defendant on the ground of non user under
Section 16(1) (n) of the Act. According to her, the defendant has failed
to use the suit premises without reasonable cause for the purpose for
which it was let out for a continuous period of six months immediately
preceding the date of the suit and the suit is also on the ground of
waste.
15. According to the defence of defendant, she admits that
original tenant was Annie D’souza and defendant is her daughter.
According to the defence of defendant, defendant has been periodically
carrying out tenantable repairs to the suit premises since there has
always been heavy leakage and seepage from the terrace of the suit
property due to extensive gardening/plantation work carried out by the
plaintiff from the terrace of the suit property. According to defendant, it
is not possible and practical for defendant to stay in the suit premises
continuously since the landlady i.e. plaintiff had mischievously and
malafidely refused to give permission to her to construct the toilet
inside the suit premises. The present application is taken out by the
plaintiff on her apprehension that, the defendant has intentions to rent
out the suit premises or to give the same to paying guests and profiteer
from the same. The plaintiff has averred that, the defendant has
renovated the suit premises and has converted it into posh premises in
order to attract the paying guests. According to the defendant, the
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 9 of 13 --
10
present application is not tenable on mere apprehension of the plaintiff.
16. Pendency of R. A. E. Suit No. 423 of 2013 between the
parties is prima facie not in dispute. It is a matter of record that, an
application vide Exh. 11 filed by the plaintiff after hearing of the
parties, my Ld Predecessor was pleased to allow and plaintiff was
permitted to inspect the suit premises along with Architect and
Photographer and also was pleased to appoint Court Commissioner to
do work as per law and to submit report accordingly. However, it is also
a matter of record that, the defendant filed Revision Application No. 62
of 2023 which was came to be partly allowed. The Hon’ble Appellate
Bench was pleased to set aside para Nos. 3 and 4 of operative order
dated 25.07.2023 passed on application vide Exh. 11.
17. It is also a matter of record that, an application vide Exh.
14 was filed by defendant for stay of the present suit until final disposal
of R. A. E. Suit No. 423 of 2013. The Ld. Predecessor of this Court was
pleased to reject the application vide Exh.14 vide order dated
25.07.2023 on merit.
18. I have gone through the documents filed by both the
parties. The plaintiff has relied on copies of agreements for sale (Exh.C)
in order to show prima facie that, the defendant’s sons namely Sheldon
and Schubert have purchased some properties and they have their
separate accommodation. The copy of electricity bill submitted by the
plaintiff (Exh.B) prima facie shows ‘0’ consumption of electricity in
respect of the suit premises. The photographs at Exh.C prima facie show
the condition of the suit premises.
19. The defendant has relied on some admissions given by the
plaintiff in cross examination in R. A. E. Suit No. 423 of 2013. However,
these admissions always would be subject to final decision of that suit.
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 10 of 13 --
11
The defendant has produced photographs of the plaintiff’s terrace in
order to show that, she has been carrying out extensive
gardening/plantation work due to which there has always been heavy
leakage and seepage from the terrace of the suit property. However,
these photographs are not in respect of the suit premises and whether
or not there is heavy leakage or seepage from terrace of the suit
property due to alleged extensive gardening/plantation work done by
the plaintiff, will be matter of trial and at this stage the said fact cannot
be proved unless opportunities to both parties to lead evidence is given.
The defendant has also relied on photographs submitted along with her
written statement vide Exh.C in order to prima facie show that, it is not
possible and practical for her to stay in the suit premises continuously
since the plaintiff had mischievously and malafidely refused to give
permission to the defendant to construct the toilet inside the suit
premises. The defendant has also relied on documents vide Exh.E, Exh.
F, G, H, I to K in order to prove her defence prima facie.
20. The plaintiff has on affidavit submitted that, she has
apprehension that, the defendant may gave the suit premises and induct
paying guests in it and may profiteer from the same as herself and her
family members do have separate residential flats and she has all
intentions to rent out the suit premises. It is also contended by the
plaintiff on affidavit that, she has learnt that the defendant has
intentions to permit paying guests in the suit premises and thereby
recover paying guests charges/monthly compensation or rent from such
paying guests and suit premises is of no use to the defendant as there
are other different accommodations available to her and her family. The
documents i.e. copies of agreements of sale have not been denied by the
defendant prima facie. The defendant in para no. 10 of her reply has
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 11 of 13 --
12
stated that, she has obtained permission for carrying out tenantable
repairs to the suit premises and Exh.4 is copy of such permission and
letter dated 10.06.2021 written by the defendant.
21. I have gone through the copy of letter vide Exh.4 from
which it seems that, said letter prima facie appears to be addressed to
the plaintiff by the defendant to carry out repairs inside and out for suit
premises. However, the plaintiff has not admitted the said document. So
also, the said document would be always subjected to cross
examination by the plaintiff. The present application is filed by the
plaintiff for interim injunction against the defendant to restrain her
from subletting the suit premises, giving the suit premises on leave and
license basis and from transferring her interest, in any manner
whatsoever in it or from inducting any third person in it.
22. Prima facie it shows that, the defendant has not denied
that, she is not in continuous use of the suit premises and electricity bill
in respect of the suit premises prima facie also shows the ‘0’
consumption. The contentions of the defendant made in para No. 10
prima facie show that, she has intention to carry out tenantable repairs
to the suit premises. The defendant has nowhere prima facie produced
any document in order to show that, the plaintiff has given consent for
such tenantable repairs except Exh. 4. In such circumstances, prima
facie the plaintiff’s apprehension is well founded and substantial.
Considering the facts of the present case and all documents, I do found
that the plaintiff does have prima facie case and therefore, if the
defendant succeeds in sub-letting the suit premises or giving the suit
premises on leave and license basis and from transferring her interest,
in any manner whatsoever in the suit premises or from inducting any
third party person in the suit premises then very purpose of the filing of
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 12 of 13 --
13
the suit and application will get frustrated. In this regard, the balance of
convenience is in favour of the plaintiff. If application is allowed then
no prejudice, harm or injury will be caused to the defendant. However,
If application is not allowed, the plaintiff will suffer grave harm, loss
and inconvenience which cannot be compensated in terms of money. In
such circumstances and in view of all discussion to avoid further
complications about the suit premises, the present application is
required to be allowed. In doing so, no prejudice will be caused to the
defendant. Hence, I answer Point Nos. 1 to 3 in affirmative.
As to Point No. 4:
23. Considering the findings and reasoning given on Point Nos.
1 to 3, present application needs to be allowed. Therefore, in answer to
Point No. 4, I proceed to pass the following order :-
: O R D E R :
1. Application vide Exh. 25 stands allowed.
2. The defendant is hereby restrained by temporary
injunction order from unlawfully sub-letting the suit
premises, giving it on Leave and License basis and from
transferring her interest, in any manner whatsoever in the
suit premises or from inducting any third person in it till
final disposal of the suit.
3. Costs in cause.
(Dictated and pronounced in Open Court.)
Sd/-
Bandra -Mumbai. ( R. R. Kale )
Date : 15.12.2023. Judge, C. R. No.35.
Order dictated on : 15.12.2023
Order checked and signed on : 15.12.2023.
/home/steno35/R.R. Kale, Judge- C.R.35/Dec-23/Orders/15-12/124- 2023- RAE- Exh-25- injunction. odt
-- 13 of 13 --