Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on: 18.04.2022
Registered on: 27.04.2022
Decided on: 20.12.2022
Duration Y M D
8 2
IN THE COURT OF SMALL CAUSES AT MUMBAI
[BANDRA BRANCH]
(Appellate Bench)
(CNR NO.MHSCA30005082022)
REVISION PETITION NO. 40 OF 2022
IN
EXHIBIT NO. 15
IN
RAE SUIT NO.546 OF 2019
1.Mr. Babu Govind Kokare (Deleted)
Age about 65 years, Occ. Retired
Residing at Room No.1,Sai Ganesh Sankul,
Ramchandra Nagar,
Pool Pada Road, Virar (E),
Dist. Thane 401305
2. Mr. Gitesh Haresh Dawankar,
Aged about 43 years, Occ: Business,
Adult, Hindu,
Indian Inhabitant, residing at
1104, Saraswati CoOp. Hsg. Soc. Ltd;
Chikuwadi, Opp. Jogger's Park,
Borivali (West), Mumbai 400 092
Mobile No. 9821428255
Email id: giteshhareshdawankar@gmail.com ...Applicant/
(Original Plaintiff)
V/s.
Smt. Jyotsna Rana (Full name not known
Age and occ Not known
Adult, Indian Inhabitant, residing at Room
No. 19, Vishnu Niwas, Plot No.664,
R. M. Bhattad Road,
-- 1 of 6 --
2
Haridas Nagar, Valpada,
Borivali (W), Mumbai400 092
Mobile No. Not known
Email id: Not known … Respondent/
(Original Defendant)
S. A. Abhyankar : Advocate for the applicant.
M. A. Chandan : Advocate for the respondent
Coram : Shri Vilas P. Kadam
Additional Chief Judge,
&
A. H. Baig, Judge,
Court Room No. 41,
Date :20.12.2022
JUDGMENT: (Per A. H. Baig, Judge)
1. Present revisions is preferred by the petitioner against the
order passed by the trial court below Exh. 15 in RAE Suit No. 546 of
2019 dated 14.03.2022. The petitioner is original plaintiff and
respondent is the original defendant before the trial court. The parties
are hereinafter referred to by their original nomenclature for the sake of
convenience.
The brief facts giving rise to the present revision are as under :
2. The plaintiff filed a suit against defendant for ejectment and
possession bearing RAE Suit No. 546 of 2019 on the ground of arrears
of rent and nonuser of the suit premises. The C. A. of the defendant
has appeared in the present suit and filed copy of Power of Attorney, in
which the defendant has made a statement that she is not in need of
room and she sold, assigned and conveyed the tenancy rights in favour
of Power of attorney holder. Based on those contents of Power of
attorney, the plaintiff moved an application before the trial court vide
-- 2 of 6 --
3
Exh. 15 for passing judgment on admission under Order 12 , Rule 6 of
the Code of Civil Procedure.
3. Defendants contested the application by filing reply. It is
submitted that the application is not maintainable. The present suit is
nothing but a family issue. There was one agreement between erstwhile
landlord and Chandrabhushan G. Dubey and the plaintiff was witness to
that document. By way of that document, plaintiff's mother sold the
entire plot through an agreement. There are several litigations upto the
Hon'ble High Court between the erstwhile tenant Chandrabhushan
Dubey and one Gitesh Davankar. The present suit is also filed in
collusion. Hence, the application is liable to be rejected.
4. After hearing both the parties, learned trial court was
pleased to reject the application.
5. Being aggrieved and dissatisfied with the said order of the
trial court, the plaintiff has preferred the present revision on various
grounds as set out in Revision petition.
6. Considering the rival submissions of both the parties and
after going through the document and impugned order, following
points arise for our determination to which we have recorded our
findings with reasons thereto as under :
POINTS FINDINGS
1. Whether the decree on admission can be passed in
the present case?
In the negative
2. Whether impugned order of the trial court is
erroneous and liable to be quashed and set aside ?
In the negative
3. What Order ? As per final
order
R E A S O N S
As to Point Nos. 1 to 3
7. We have heard both the learned Advocates at length.
-- 3 of 6 --
4
8. As per Order 12, Rule 6 of the Code of Civil Procedure,
where admissions of fact have been made by any party, either in the
pleadings or otherwise, whether orally or in writing at any stage of the
suit, then, the court is competent enough to pass judgment on
admission.
9. In this case, the plaintiff is solely relying upon averment of
the Power of Attorney. The copy of the said power of attorney is
annexed in the paper book. The said power of attorney is executed by
defendant Smt. Jyotsna Rana in favour of Smt. Binay Ashish Mishra. In
the said power of attorney, the defendant has shown suit premises as
her residence. She has stated that she is not in need of the said room
and therefore, intending to transfer the same to Smt. Binay Ashish
Mishra and land owner has no objection. It is further stated that she has
sold the said room and tenancy rights to Smt. Binay Mishra for
consideration.
10. It is important to note here that the suit is not filed on the
ground of subletting under Section 16(1)(e) of the Maharashtra Rent
Control Act, but the suit is filed on the ground of arrears of rent under
Section 15 and nonuser of the premises under Section 16(1)(n) of the
Maharashtra Rent Control Act. Admittedly, there is no admission
regarding arrears of rent. The question remains as to whether the above
averment can be construed as a admission of the ground of nonuser of
the premises under 16(1)(n) of Maharashtra Rent Control Act.
11. Before discussing this important issue, we would like to
state that as per Section 16(1)(n) of the Maharashtra Rent Control Act,
if the premises have not been used without reasonable cause for the
purpose for which they were let for a continuous period of six months
immediately preceding the date of the suit, then, the landlord is entitled
to seek eviction of tenant on the ground of nonuser. The present suit is
-- 4 of 6 --
5
filed on 21.08.2019. The said power of attorney is of 22.02.2021. In
that power of attorney, the defendants states that she is not in need of
the suit premises and accordingly, she sold it or assigned the tenancy
rights to Power of attorney holder.
12. Nonuser is to be proved for a period of 6 months
immediately preceding the date of filing of the suit. If the suit was filed
on 21.08.2019, then nonuser is to be proved from February, 2019
onwards continuously till the institution of the suit and it should also
be proved that such nonuser was without any sufficient cause. There is
absolutely no admission by defendant in the power of attorney to show
that she does not use the suit premises from February, 2019 onwards
for the purpose, for which it was let. Hence, it is clear that there is no
admission at all in respect of non user of the premises. The power of
attorney which is executed in the year 2021 is absolutely not helpful to
plaintiff in proving the ground of nonuser.
13. Learned Advocate for the plaintiff has relied upon the
authority of the Hon'ble Bombay High Court in the case of H. K. Taneja
and Ors V/s Bipin Ganatra (2013(1) Mh. L. J. 783). In that case,
defendant made a statement in a complaint that the suit flat does not
belong to him, but to the trust. In view of clear admission, it has been
held that the suit filed by the plaintiff for declaration that the defendant
has no right, title and interest in the suit flat must be decreed on
admission and further declaration that the defendant is in unlawful
possession and occupation as a trespassers, falls as a matter of corollary,
once it is admitted by defendant that flat does not belong to him. In
that case, there was clear admission and so it was held that judgment
on admission must be passed.
-- 5 of 6 --
6
14. There is no dispute with the legal proposition of law.
However, in the case at hand, there is no clear admission in respect of
the nonuser of premises for a period of 6 months immediately
preceding the date of filing the suit. Moreover, the suit is of 2019 and
Power of Attorney is of 2021. The suit is not on the ground of
subletting. Hence, in such circumstances, there is no admission in
respect of grounds pleaded by the plaintiff. In this distinguished facts,
we are of the considered opinion that authority is not helpful to
applicant in any way.
15. To conclude all above discussion, we hold that the trial
court has correctly and properly appreciated all the facts and rightly
rejected the application for passing judgment on admission. We do not
find any infirmity in the order. The order is not erroneous. Hence, it
need not be set aside. On the contrary, order is required to be
confirmed in revision. We do not find merit in the present revision. In
the result, we answer point Nos 1 and 2 in 'negative' and in answer to
point No.3, we proceed to pass following order.
O R D E R
1. Revision is dismissed with costs.
2. Inform the trial court accordingly.
I agree,
( Vilas P. Kadam ) ( A.H. Baig )
Additional Chief Judge, Judge
C. R. No. 41 C. R. No. 41
Court of Small Causes,(B.B) Court of Small Causes,(B.B)
20.12.2022 20.12.2022
Judgment dictated on : 20.12.2022
Judgment transcribed on : 20.12.2022
Judgment checked & signed on : 20.12.2022
/home/steno39/Desktop/CR41/DEC2022/JT/REVISION PETITION NO. 402022.odt
-- 6 of 6 --