Interim Order 6

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(Bandra Branch)
ORDER BELOW EXHIBIT - 20
IN
R.A.D. SUIT NO. 213 OF 2021
[MHSCA-3000406-2021]
Malcolm Charles Lourenco Pereira, ... Plaintiff.
Versus
M/s. Dolphin Build Home. ... Defendant.
Pawar H. T. Ld. Advocate for the plaintiff.
Yadav C. R. Ld. Advocate for the defendant.
Coram :Smt. J. D. Hushangabade
Judge, C. R. No. 40,
Date : 20th February, 2025.
:: ORDER ::
This is an application filed by plaintiff for directing the
defendant to deposit in this Court transit accommodation rent at the
rate 10,000/- per month from October-2023 as per Order 28.07.2022 or
in alternative this Court be pleased to hold that, defendant has
committed willful and deliberate disobedience of the order dated
28.07.2022 and order dated 16.09.2023. Say of the other side has been
called.
2. It is the case of the plaintiff that, he has taken interim
application Exh.13 for direction to the defendant to provide to him
either transit accommodation of the same standard or pay transit rent.
On 28.07.2022, the order was passed below Exh.13 and defendant was
directed provide him either transit accommodation or pay the transit
rent at the rate of 10,000/- per month of the date of the order till final
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disposal of the suit.
3. The defendant did not complied with the said order. Therefore,
the plaintiff has field the application Exh.18 directing the defendant
deposit arrears of transit accommodation rent from the period
28.07.2022 till April-2023.
4. The said application was decided by an order dated 16th
September, 2023 with direction to the defendant to deposit arrears of
transit accommodation rent amounting to 90,000/- for the period form
28th July, 2022 to April-2023 within one month from the date of said
order. The defendant has not complied the order therefore, the plaintiff
has filed this application and prayed for direction to the defendant to
deposit arrears of transit accommodation rent @ 10,000/- per month
from October-2023 till the final disposal of the suit.
5. Ld. Advocate for the defendant has filed his say on the
overleaf of the application and contended that, the application taken
out by the plaintiff it is not maintainable as the plaintiff has taken very
same application below Exh.13 and 18 for the prayer and relief which
has been asked by the plaintiff by way of present application. The
plaintiff on the very same ground has again taken out the present
application instead of taking out further steps in the matter. Therefore,
the application taken by the plaintiff is not maintainable and liable to be
dismissed with heavy costs.
6. Perused the application and say thereon. Heard Ld.
Advocate for the plaintiff at length.
7. On perusal of record, it appears that, the plaintiff has filed
this R.A.D. Suit for declaration that he being tenant is entitled for
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permanent accommodation in the new building and for providing
permanent alternate accommodation. He has taken interim application
Exh.13 for direction to the defendant to provide to him either transit
accommodation of the same standard or pay transit rent. On
28.07.2022, the order was passed below Exh.13 and defendant was
directed provide him either transit accommodation or pay the transit
rent at the rate of 10,000/- per month of the date of the order till final
disposal of the suit.
8. The defendant did not complied with the said order.
Therefore, the plaintiff has field the application Exh.18 directing the
defendant deposit arrears of transit accommodation rent from the
period 28.07.2022 till April-2023.
09. The said application was decided by an order dated 16th
September, 2023 with direction to the defendant to deposit arrears of
transit accommodation rent amounting to 90,000/- for the period form
28th July, 2022 to April-2023 within one month from the date of said
order. The defendant has not complied the order therefore, the plaintiff
has filed this application and prayed for direction to the defendant to
deposit arrears of transit accommodation rent @ 10,000/- per month
from October-2023 till the final disposal of the suit.
10. It appears from the record that, the defendant has filed an
Appeal bearing No. Misc. Appeal No.18 of 2023 in the Court of Small
Causes before Hon’ble Appellate Bench against the order dated
28.07.2022 passed below Exh.13 in this suit. However, said appeal was
dismissed by an order dated 07.10.2024 and the order dated
28.07.2022 below application Exh.13 in said suit i.e. R.A.D. Suit No.
213 of 2021 was confirmed. It is not case of the defendant that, he has
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challenged the above said order. Considering the same, it clears that,
the order dated 28.07.2022 below Exh.13 has been confirmed by order
of Hon’ble Appellate Bench dated 07.10.2024 in Misc. Appeal No.18 of
2023.
11. The defendant has not denying the fact that he does not
comply the order dated 28.07.2022 and 16.09.2023. The only
contention of the defendant is that, the plaintiff has filed very same
application below Exh. 13 and 18.
12. As already stated the order below Exh.13, was confirmed
by order dated 07.10.2024 in Misc. Appeal No.18 of 2023 and the
defendant was directed by an order dated 28.07.2022 to provide either
transit accommodation or to pay transit rent at the rate of 10,000/- per
month from the date of said order till final dismissal of the suit. The
defendant has not complied with the said order and Appeal preferred by
him was dismissed. Therefore, the plaintiff constrained to file said
application for the same relief again. Therefore, in my view the
application is maintainable. It clears from the rival pleadings of the
parties that the defendant has not complied with the said order till
today.
13 Ld. Advocate for the plaintiff prayed that, “this Court be
pleased to hold that defendant has committed willful and deliberate
disobedience of order dated 28.07.2022 by not complying the said
order”. Considering, the same and considering the fact that the Appeal
was pending and decided on 07.10.2024, I am of the view that, one last
chance needs to be given to the defendant to comply the order dated
28.07.2022, passed below Exh.13, before passing any adverse order
against the defendant. Therefore, It is necessary to direct the defendant
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to deposit arrears of transit rent @ 10,000/- per month from the date of
order dated 28.07.2022 below Exh.13 till February-2025, within one
month from the date of this order and defendant to deposit further
transit accommodation rent @ 10,000/- for each month on or before
07th day of each month. If the defendant failed to comply the directions
as per order dated 28.07.2022, to pay arrears of transit accommodation
rent at the rate 10,000/- per month within one month, then this Court
can pass necessary adverse orders against the defendant. Hence, I
proceed to pass following order :
O R D E R :
1. The application is allowed.
2. The defendant to deposit arrears of transit rent @
10,000/- per month from the date of order dated
28.07.2022 below Exh.13 till February-2025, within
one month from the date of this order.
3. defendant to deposit further transit accommodation
rent @ 10,000/- for each month on or before 07th day
of each month.
4. The court will pass necessary adverse order against
the defendant for non-compliance of order dated
28.07.2022, if defendant fail to comply the said order
within one month from the date of this order or
expiry of any further period, which if extended on the
application of the defendant.
5. No order as to cost.
( J. D. Hushangabade )
Date: 20/02/2025. Judge, C.R. No. 40
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