Order 5

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
ORDER BELOW EXHIBIT – 22
IN
L.E. & C. SUIT NO. 57 of 2023
(CNR No. :- MHSCA3-000539-2023)
M/s. Rajendra Builders,
Through its partner Mr. Rameshchand
Babulalji Bohra, ... Plaintiff.
Versus
M/s. Lok Holding and Construction Ltd., ... Defendant.
Appearance:-
Mr. G. S. Yadav ... Ld. Advocate for the Plaintiff.
Khatri Legal Venture ... Ld. Advocate for the Defendant.
Coram: R. R. Kale,
Judge, C. R. No. 36.
Date : 07/07/2025.
ORDER:-
Present application is taken out by the defendant
company to set aside the order passed on application vide Exh. 11
dated 11/12/2023 and grant permission to them to file reply to
application vide Exh. 11.
2. The defendant company submits in its application in brief
that, the said company has been served with copy of plaint and
interim application. The said company filed Vakalatnama on
05/09/2023 in the matter. As the negotiation for settlement in the
matter was going on, the defendant company did not file written
statement and reply to the interim application taken out by the
plaintiff firm. By the said negotiation the parties agreed to resolve the
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matter amicably and the defendant company agreed to take their
belongings. However, the plaintiff firm has put its own lock and
prevented the defendant company to enter the suit premises and take
out belongings. As a result, the suit premises was idle and no use of
the defendant company. Hence, there was no question of payment of
compensation for not using the suit premises.
3. The defendant company further submits in the application
that, the Ld. Predecessor of this Court was pleased to pass ‘No Say’
order on application vide Exh. 11 dated 29/11/2023. On
11/12/2023 the defendant company had moved application for
setting aside an order dated 29/11/2023 passed below Exh. 11.
However, the Court was pleased to reject the same. An interim
application vide Exh. 11 was also heard without reply and certain
reliefs were granted to the plaintiff inter-alia direction to the
defendant company to pay the amount of arrears though the
defendant company was not in occupation of the suit premises.
4. The defendant company further submits in the application
that, the said company has been regularly paying the monthly
compensation. However, due to covid and lockdown the said
company could not make out the payment towards compensation.
The plaintiff firm instead of co-operating prevented entry of the
defendant company by putting their own lock over the lock of the
defendant company. Due to obstruction to enter the suit premises the
defendant company suffered heavy loss in the Court matters as all the
Court papers are also lying there. The defendant company showed its
willingness to handover possession of the suit premises and settle
account later. However, the plaintiff refused to pay any heed to the
said request. Thus, an order dated 11/12/2023 passed on interim
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3 EXH-22 L.E. & C. Suit No. 57 of 2023
injunction application vide Exh. 11 be set aside as the same is passed
without reply and defendant company be permitted to file reply
which is now ready and interim application be heard on merits.
Contending all these grounds, the defendant company has prayed to
allow its application.
5. On the contrary, the plaintiff firm resisted the present
application by filing reply at Exh. 24 and urged for dismissal of the
application. The plaintiff firm in its reply in brief submits that,
present application is not maintainable, bad in law, illegal, improper,
unjust, without any cause of action and hence, liable to be dismissed
with cost. Present application is taken out by the defendant company
for setting aside the order dated 29/11/2023 passed on application
vide Exh. 11 which has been rejected vide order dated 11/12/2023.
Moreover, an order dated 11/12/2023 passed on application vide
Exh. 11 was passed in presence of Ld. Advocate for the defendant
company and after hearing the Ld. Advocate for the plaintiff firm,
hence, said order has been passed on merits. Therefore,the reliefs
asked by the defendant company cannot be tried and entertained by
this Court as the Court cannot sit in appeal on its own order and the
Hon’ble Court has become functus-officio. If the suit premises has not
been used by the defendant company for the last three years what
prevented the said company to terminate the license and offer back
the possession of the suit premises to the plaintiff firm. Therefore, all
the contentions of the defendant company are denied. Thus, present
application be dismissed with cost. Lastly, the plaintiff firm has urged
for dismissal of the application.
6. From the contents of the application and say filed thereon,
following points arose for my determination and I record my findings
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4 EXH-22 L.E. & C. Suit No. 57 of 2023
thereon as under:-
Sr.
No.
Points Findings
1. Whether the application is liable
to be allowed?
….No.
2. What order? ….Application stands
rejected.
: REASONS :
As To Point Nos. 1 and 2:-
7. Heard the Ld. Advocates on behalf of both parties at length.
They have advanced their arguments as per their respective
contentions.
8. The Ld. Advocate for the defendant company has relied on
following case-laws:-
(a) K. Zakira Shaik Vs. K. Saleem Basha, 2011 SCC Online
AP 305;
(b) Tanmai Jewels Pvt. Ltd. Vs. Ch. Sreesaila Kumari and
Anr., 2013 SCC Onlie AP 497;
(c) Smt. Meenal Madan Kshirsagar and Ors. Vs. Bombay
Panjrapole and Ors., Writ Petion No. 9305 of 2022
dated 02/01/2024 and
(d) Rajaram Woman Masurkar Vs. Lokmanya Shikshan
Prasarak Mandal, Vadavali and Ors., 2007 SCC Online
Bom. 649.
9. In K. Zakira Shaik’s case, the defendant company has
invited attention of this court on ratio i.e. , “...This provision came
into force with effect from 2005. The purpose underlying the
provision is to ensure that the owner of the premises leased to the
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defendant in a suit pays the rents regularly, together with arrears, if
any. The word “undisputed” occurring before the word “arrears”,
assumes significance. If there is a dispute as to the quantum, the
Court has to decide the same, duly taking into account, the versions
put forward by the parties. In this regard, slightly different approach
is needed in respect of a suit in which recovery of arrears is prayed
for, as one of the reliefs on the one hand and a suit for eviction
simplicitor on the other hand. If the defendant opposes the claim in
the suit, as to arrears, the adjudication thereof must take place after
trial. An application under Order 15-A of C.P.C. is not the proper
mechanism to recover the suit amount, if seriously disputed by the
defendant. Under the garb of seeking relief under that provision,
plaintiff in a suit cannot pray for recovery of the entire amount,
which incidentally is claimed in the suit itself. In such an event, the
suit comes to be virtually decreed to that extent without trial, but
through an order under Order 15-A of C.P.C….”
10. In Tanmai Jewels Pvt. Ltd.’s case, the defendant company
has invited attention of this court on ratio i.e., “...The striking off of
defence as a consequence of non-compliance of the order passed
under Order XV-A C.P.C., by itself, did not relieve the Court of its
obligation to examine the merits of the suit. It has already been
mentioned that the very entertaining of the suit was untenable, in
view of the existence of an arbitration clause. The further questions
such as whether the suit could have been filed for eviction, even
while the lease is in force till 8 more years and whether the suit for
eviction could have been filed without seeking the relief of
declaration as to the termination of the lease, were required to be
examined. The trial Court did not take any of these important aspects
into account and proceeded to decree the suit ex parte without issues
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or findings...”
11. In Smt. Meenal Madan Kshirsagar’s case, the defendant
company has invited attention of this court on ratio i.e., “...While the
principles laid down in the decision of Govind Rangnath Kale vs.
Maharashtra Revenue Tribunal, Pune & Another (supra) are to be
respected but the same do not imply that if a holding Advocate is
seeking an adjournment on the ground of ill-health of the Advocate
on record, or that on the very same day he has received the change
report, that just because he is making an application for an
adjournment or for restoration, he is authorised to effectively
represent in the matter for a purposeful hearing. Mere physical
presence, as noted above, cannot be said to be effective presence or
appearance as observed by this Court in the case of Devidayal Sales
Pvt. Ltd. vs. State Trading Corporation (supra). The presence should
be purposeful in the sense that the Advocate appearing should take
part in the proceedings, should be prepared to lead evidence and
produce documents or take steps towards disposal of the Suit and for
any reason the Advocate is precluded or seeks an adjournment, such
an appearance cannot be said to be an appearance as contemplated
under Order XVII Rule 3(a) of the CPC. Therefore the said decision,
in my view, does not assist the Petitioners. I am also unable to agree
with the submission of the learned Counsel for the Petitioners that ill
health of an Advocate cannot be a reason seeking an adjournment/
restoration of a suit...”
12. In Rajaram Woman Masurkar’s case, the defendant
company has invited attention of this court on ratio i.e., “...Dismissal
for want of prosecution or for default is a matter which has been
treated to be in the discretion of the Court. Where a party is in
default and there are express provisions, still the Court may prescribe
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time limits for future conduct of any plaintiff and in non-compliance
thereof, action can be dismissed. The Court would take into
consideration all circumstances, intent and hampering of course of
justice, before dismissing an action for non-prosecution. An order
dismissing an action for want of prosecution is not a decision on
merits and does not operate as res-judicata Halsbury's Laws of
England, 4th edition, vol 37)...”
13. I have carefully gone through above ratios. With due respect
to the same and perusal of the record and roznama, it can be seen
that, the defendant company has appeared in the present suit on
05/09/2023 by filing Vakalatnama below Exh. 20. An application
vide Exh. 11 was taken out by the plaintiff firm along-with the suit
for interim reliefs.
14. The record and roznama goes to show that, the dates such
as 04/10/2023, 25/10/2023, 29/11/2023 and 11/12/2023 were
fixed for filing of the reply by the defendant company on interim
injunction application vide Exh. 11 and for filing written statement to
the suit. However, the roznama dated 29/11/2023 goes to show that,
my Ld. Predecessor was pleased to pass an order of ‘No Say’ against
the defendant company on 29/11/2023 below Exh. 11. On
11/12/2023 the defendant company appears to have moved an
application vide Exh. 21 for setting aside an order of ‘No Say’ passed
on application vide Exh. 11 dated 29/11/2023. It appears that, after
giving an opportunity to both sides my Ld. Predecessor on
11/12/2023 was pleased to reject an application vide Exh. 21 i.e. an
application for setting aside ‘No Say’ passed against the defendant
company dated 29/11/2023. It also appears that, an application vide
Exh. 11 came to be heard and partly allowed by the Ld. Predecessor
on 11/12/2023 in presence of both Ld. advocates.
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15. Now, coming to the present application filed for setting
aside an order dated 11/12/2023 passed below application vide Exh.
11 and permit it to file the reply. However, the record goes to show
that, the defendant company’s application vide Exh. 21 has already
been heard and rejected by the Ld. Predecessor of this Court on
merits. The Ld. Predecessor of this Court was pleased to reject to set
aside an order of ‘No Say’ dated 29/11/2023. The defendant
company was not allowed to file reply below Exh. 11. Therefore, the
defendant company is not entitled to get the reliefs asked as in
presence of both the Ld. Advocates of the parties, the application vide
Exh. 11 has been decided on merits vide order dated 11/12/2023.
Therefore, I do found substance in the argument advanced by the
plaintiff firm that, this Court cannot sit in appeal on its own order
and Court has become
functus-officio. Therefore, the above ratios are
not helpful to the defendant company in any way as the facts and
circumstances in the cases cited are different to the case in hand.
Thus, application is liable to be rejected. Therefore, in view of above
all discussions, I answer Point No. 1 in the negative and in order to
answer Point No. 2, I proceed to pass the following order:-
: ORDER :
Application vide Exh. 22 stands rejected.
(Dictated and pronounced in the open court.)
(R. R. Kale)
Date : 07/07/2025. Judge, C. R. No.36.
Order dictated on : 07/07/2025.
Order transcribed on : 08/07/2025.
Order checked & signed on : 08/07/2025.
(R. R. Kale)
Judge, C. R. No.36.
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