Order 4

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(Bandra Branch)
ORDER BELOW EXHIBIT - 18
IN
R.A.D. SUIT NO. 213 OF 2021
[ CNR No.:- MHSCA3-000406-2021 ]
Malcolm Charles Lourenco Pereira … Plaintiff
Versus
M/s. Dolphin Build Home … Defendant
Harsh T. Pawar, learned advocate for the Plaintiff.
Chandrabhan R. Yadav, learned advocate for the Defendant.
Coram : Smt. Nutan S. Saraf
Judge,
C.R. No. 40,
Date : 16th September, 2023.
:: ORDER ::
This is an application made by plaintiff for the court be
directed to the defendant to deposit Rs.90,000/- being arrears of transit
accommodation rent for the period from 28th July 2022 to April 2023 in
this court within 15 days from the date of order and liberty may be
granted to withdraw the same as when deposited by defendant and
enhancement of transit rent amount of Rs.20,000/- from Rs.10,000/-.
On the other hand defendant objected the present application by filing
reply vide Exh.19.
2. By this application plaintiff stated that he had taken out the
interim application (Exh.13) for providing transit accommodation
and/or transit rent and other reliefs. The defendant filed reply to the
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said application. After hearing the advocates appearing on the both
sides, the Hon’ble Court was passed the order on 28th July, 2022
observing that the defendant shall provide to plaintiff either transit
accommodation of the same standard and status within the same
vicinity or pay the transit rent of Rs.10,000/- per month pending the
hearing and final disposal of the suit. The tenants used to visit regularly
the office of the defendant to comply with the order dated 28th July,
2022. However, the defendant did not comply with the said order not
did he inform that the defendant is desirous of challenging the said
order. In view of this, he was compelled to serve a notice dated 15th
March, 2023 to the defendant by Registered A.D. and also to his
Advocate. The said notice was not replied by the defendant either
stating that the defendant is willing to pay the arrears of transit rent or
in the alternative the defendant will provide transit accommodation of
the same standard and status within the same vicinity. It is further
stated that there has been arrears of transit accommodation rent for the
period from 28th July, 2022 to April 2023 amounting to Rs.90,000/-
which the defendant has not paid as compliance of order dated 28th
July, 2022. In view of this, it is just, necessary and in the interest of
justice that this Hon’ble court be pleased to direct the defendant to
deposit Rs.90,000/- in this Court within 15 days from the date of the
order and liberty may be granted to him to withdraw the said arrears of
transit rent from the office of this Hon’ble Court.
3. Plaintiff further stated that he made an attempt to find out
suitable accommodation within the same vicinity. To avail the
temporary accommodation on leave and license basis for residential
premises of the same standard and status, the transit rent prevalent is
Rs.20,000 to 25,000 per month and the transit rent @ Rs.10,000/-
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awarded by the court is not as per the prevailing market rent in the said
locality. Hence, it is not possible to have transit accommodation because
this Hon’ble Court has granted transit rent @ Rs.10,000/- per month. To
support his submission, he referred and relied upon the photocopy of
the registered leave and license agreement executed between the
licensor and the licensee within the same vicinity. Considering the
principle of equality and natural justice, this court has ample power to
enhance the transit rent from Rs.10,000/- to Rs.20,000/- or more per
month, on the strength of registered leave and license agreement
executed by third party in the same area. Hence, plaintiff prayed that
this Hon’ble court be pleased to direct the defendant to deposit
Rs.90,000/- being arrears of transit accommodation rent fro the period
from 28th July, 2022 to April 2023 in this court within 15 days from the
date of order and liberty may be granted to him to withdraw the said
arrears of transit rent from the office of this court. It is further prayed
that this court be pleased to enhance the transit accommodation rent
awarded vide order dated 28th July, 2022 from Rs.10,000/- per month
to Rs.20,000/- per month as it is not possible to acquire suitable
alternate transit accommodation of same standard and status within the
vicinity of the said locality. Lastly prayed that the defendant is not
willing to pay enhanced rent as prayed for by the plaintiff, in the
alternative this court be pleased to pass order and direction to the
defendant to provide transit accommodation to the plaintiff within the
same vicinity in compliance of order dated 28th July, 2022 till the new
building is completed and the plaintiff is rehabilitated in the new
building by obtaining occupation certificate and building completion
certificate from the Bombay Municipal Corporation. Hence, this
application.
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4. The defendant by virtue of Exh.19 strongly opposed the
application and contended that the application taken out by the plaintiff
is false, fabulous and not maintainable at all, so far contents and
averments mentioned in the said application is concern it is not
admitted at all. Defendant denied that the so-called tenants used to visit
regularly the office of the defendant to comply with the order dated 28th
July 2022. It is also denied that the defendant did not comply with the
said order nor did he inform that the defendant is desirous of
challenging the said order. He further denied that the defendant had
filed the appeal challenging the said order and the plaintiff has receive
the copy of the appeal and the matter is kept for filing reply and same is
pending for hearing and final disposal before the appeal court i.e. C.R.
No.41, till the appeal is pending the present application taken out by
the plaintiff is not maintainable till disposal of the above said appeal.
He further denied that so far rent is concern the same is decided by the
trial court and the defendant has filed the appeal challenging the said
order as the defendant is not liable to pay any amount to the plaintiff,
therefore, no question arise for enhancement of the transit rent as
alleged by the plaintiff in the present application. Defendant further
contended that the plaintiff is not entitled to any relief as prayed for as
the plaintiff had not made out any case for the reliefs as mentioned in
the prayer clause. It is submitted that till the appeal which is filed by
the plaintiff against the order dated 28th July 2022 is pending the
plaintiff is not entitled to any rent or transit accommodation. Hence,
prayed that application filed by plaintiff be dismissed with heavy
compensatory cost.
5. It has been argued by learned advocate for plaintiff that
tenant is shelterless. His tenancy is heritable and transferable. As
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building is demolished by the developer, that the tenancy cannot come
to end. The interim application for alternative accommodation has been
granted by this court. The defendant preferred appeal on order dated
28/07/2022, Appellate Court rejected stay application as per order
dated 24/072023 vide Exh.10 of the defendant. Under such
circumstances there is no stay application in this case, therefore, allow
this application to meet the ends of justice. The plaintiff residing at
mercy of friends and shelterless. Hence, this application.
6. Per contra learned advocate for defendant argued that the
interim application was already allowed to deposit Rs.10,000/- per
month to the plaintiff. To this order he preferred appeal and which is
still pending. Prayer(2) enhancement of transit rent amount from
Rs.10,000/- to Rs.20,000/- is not tenable, again plaintiff made this
application for demanding enhanced rent amount. The plaintiff has to
challenge the order passed by the court for rent amount of Rs.10,000/-.
Thus, the defendant prayed to reject this application with costs.
7. Perused application and say. Heard both sides at length. It
is on record that the interim application is decided vide Exh.13 dated
28/07/2022, therein my learned predecessor directed to the defendant
to provide the plaintiff either transit accommodation of the same
standard, status within the same vicinity or pay the transit rent of
Rs.10,000/- per month from the date of this order till final disposal of
the suit. It is also on record that defendant preferred appeal to this
order, therein, stay application has been rejected by the Hon’ble
Appellate Court in Misc. Appeal No. 20 of 2023 vide Exh.10. While
consider the reply filed by the defendant, he denied the present
application and the tenant visited to his office also denied. The more
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buttress on the ground of the said reply is appeal pending to this order.
Therefore, he is not liable to pay any amount to the plaintiff. Said
appeal is pending for said order but stay application in said appeal has
been rejected by the Hon’ble Appellate Court. Under such circumstances
it is obligatory on the defendant to comply the order passed vide
Exh.13. Moreover, there is no compliance has been done by the
defendant to allot alternate accommodation of same status to the
plaintiff.
8. It is contention of the plaintiff that he made attempt to find
out suitable accommodation within the same vicinity, to avail the
temporary accommodation on leave and license basis for residential
premises of the same standard and status, the transit rent amount is
Rs.20,000/- to Rs.25,000/- per month and this court awarded
Rs.10,000/- per month which is not sufficient. Therefore, he prayed to
enhance transit rent amount from Rs.10,000/- per month to
Rs.20,000/- and if the defendant is not pay the above said amount then
directed to him provide transit accommodation to the plaintiff within
the same vicinity. My learned predecessor already passed the order with
direction to the defendant to provide alternate accommodation within
same vicinity or pay the transit rent @ Rs.10,000/- per month. Under
such circumstances there is no question of enhancement of rent amount
on the basis of the attempt has been made by the plaintiff to search
transit accommodation within same vicinity. As discussion held above
the defendant neither provide transit accommodation nor paid transit
rent of Rs.10,000/- per month from the date of order i.e. 28/07/2022.
Till filing the present application dated 18/04/2023 the amount is due
Rs.90,000/- the said due amount is liable to pay to the plaintiff but he
failed to do so. As discussion held above this court is not accepted the
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submission advanced by the plaintiff to enhance the transit rent amount
Rs.10,000 to Rs. 20,000/- per month. Hence, considering the discussion
made above, I proceed to pass following order :
:: O R D E R ::
1. Application (Exh.18) is partly allowed.
2. The defendant is directed to deposit arrears of
transit accommodation rent amount due of
Rs.90,000/- for the period from 28th July, 2022
to April 2023 in this court within in one month
from the date of order.
3. The plaintiff is at liberty to withdraw the said
amount as when deposited by the defendant.
4. The rest of the prayers of plaintiff stands
rejected.
5. Both parties to take note of this order.
6. Cost in cause.
( Nutan S. Saraf )
Date: 16/09/2023. Judge, C.R. No. 40
Order dictated & Typed on : 16/09/2023.
Order checked & signed on : 16/09/2023.
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