Interim Order 3

Order Details: Order on Exhibit
Pdf Text: 1 (Ord) in exhibit 6 in 2A Appeal No.26 of 2023
CNR No.MHSCA30006302023
IN THE COURT OF SMALL CAUSES AT BOMBAY
(BANDRA BRANCH)
(APPELLATE COURT)
Order below exhibit 6
in
2A- Appeal No.26 of 2023
in
R.A.E & R Suit No.16/29 of 2004
1. Mr.Kevin D’souza ....Appellant
(Orig.Defendant-1d)
Versus
1. Mrs.Joanita Clara Braganza (since
deceased) through her C.A.
Mr.Fredrick Cyril Braganza
1(a) Mr.Federick Cyril Braganza and anr. ....Respondents
(Orig.Plaintiffs)
2. Mr.Stanislaus J.T.D’Souza (since
deceased)
2(a) Mrs.Katherine Anne D’souza (since
deceased)
2(b) Mr.Michael D’souza and ors. Formal Respondents
(Orig.Deft.1(a) to 1(c)
& 1(e)
Advocates appeared :
Mrs.Shagufta Qureshi, Advocate for Appellant.
Jyoti Thakkar, Advocate for Respondents.
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2 (Ord) in exhibit 6 in 2A Appeal No.26 of 2023
Coram : M. S. Pathan,
Addl. Chief Judge
&
D.S.Dabhade, Judge
C.R. No.41
Date : 26.02.2024
: ORAL ORDER :
(Per M.S.Pathan, Addl.Chief Judge)
The appellant/original defendant has taken out this
application seeking stay to execution and operation of the Judgement
and decree passed in R.A.E & R Suit No.16/29 of 2004 of dated
06.05.2023 by the learned trial Judge (Court Room No.34), whereby
appellant was asked to vacate the suit premises within three months
from the date of Judgement and decree. It is contended that, an appeal
has been preferred against the Judgement and decree passed by the
learned trial Court in RAE & R Suit No.58/69 of 1994, they have strong
hopes of success in appeal. Thus, if the impugned Judgement and
decree is executed, then, very purpose of filing of this appeal would be
frustrated. Hence, interference of this Court is sought for to stay the
execution and operation of the judgement and decree of the learned
trial court until adjudication of this appeal, for they have also placed on
record, the report of architecture – H. Mehata & Associates.
2. Say of respondents was called upon, it is at exhibit 15. They
have strongly objected to it with a saying that, there is no propriety to
stay the impugned Judgement and decree, as it is passed on merit.
However, if the court is prepared to grant stay, then it has to direct
appellant to pay a monthly compensation. In support of their
contention, they have also placed on record the report of architecture
i.e Nadkarni & Co.
3. Heard both side. Perused the record. In the face of
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3 (Ord) in exhibit 6 in 2A Appeal No.26 of 2023
submissions advanced at bar, the only point arise for our consideration
is as follows.
POINTS FINDINGS
Is appellant entitled to stay operation and
execution of the impugned judgment and
decree ? If yes, on what condition ?
Yes,
See final
order.
REASONS
4. As a matter of fact, in RAE & R Suit No.16/29 of 2004, the
learned trial Court has passed an eviction decree, whereby the
appellant was directed to evict suit premises i.e Flat No.F/4, Pairville
Estate Plot No.68, Juhu Vile Parle Development Scheme Vithalnagar
Co.Op.Housing Society Ltd; N.S.Road No.12, Juhu, Mumbai 400 049.
The suit premises is of residential user. The locality of suit premises
clearly suggests that, it has all civic amenities within nearby vicinity.
The Vile Parle Railway Station, which lies on the Western Railway is
hardly 2.5 km away from the suit premises. The carpet area of the suit
premises is undisputedly around 700 sq.ft. The suit premises is over to
the first floor in a building having G plus 3 structure. The record further
reveals that, the suit premises has no lift facility, however it is a two
BHK flat.
5. In this backdrop, we are privileged to go through the
reports of valuer placed on record by both sides. The report of H.Mehta
& Associates submitted by appellant suggest that, the suit premises
would fetch a rent of Rs.18,816/- per month and not more than that. He
has also placed his reliance upon a Judgement in case of State of
Maharashtra and anr. V/s.M/s.Super Max International Pvt.Ltd and
ors.[AIR 2010 Supreme Court 722]. But, in support of his contention,
he has not placed on record the comparable instances of the Leave and
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4 (Ord) in exhibit 6 in 2A Appeal No.26 of 2023
Licence Agreement of the nearby vicinity.
6. On the other hand, the report submitted by respondents
has mentioned three instances of the Leave and Licence Agreement.
They have also placed on record the Judgement in the case of
M/s.Martin & Harris Private Limited and anr. [Civil Appeal Nos.4646-
47 of 2022- arising out of SLP(C)Nos.20243-44 of 2019]. However, the
properties shown in those instances are of around 1345 sq.ft. & 1776
sq.ft; therefore, average rate taken out is of Rs.196/- per sq.ft. per
month, which we think is at a higher side. Even otherwise, no actual
Leave and Licence Agreements are placed on record, so as to see what
facilities in those instances are available, so as to compare with our
case, therefore, there is a huge difference in between these instances
and suit premises.
7. The report submitted by appellant suggest that, it shall
fetch Rs.18,816/- per month, whereby the Architect Report submitted
by respondents suggests that, it must be of Rs.1,10,880/- per month. It
is to be recalled that, when the present application was filed by
appellant he has suggested that, it would not fetch compensation @
Rs.8,000/- per month, however later on, report submitted by him
clearly suggests that, it would fetch compensation @ Rs.18,816/- per
month. Thus, the appellant is not true in his contention.
8. The appellant has also placed on record certain
photographs to suggest that, the suit premises floods during rainy
season, as it is situated in the low lying area. He has also brought our
attention to suggest that, underground water tanks are contaminated in
rainy season, there is no compound wall at the entrance of the building,
there is no security compound wall which is broken and sunken, there
are several tenanted repairs, the beams and columns of the suit
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5 (Ord) in exhibit 6 in 2A Appeal No.26 of 2023
premises are degraded and, therefore, the suit premises would not fetch
the amount claimed by respondents. As a matter of fact, appellant has
given photographs of surrounding area of the suit premises and not of
the inside area of suit premises. No doubt, certain walls are broken and
sunken, the water is flooded up in the compound, but it does not
diminishes the value of the premises. It is not clear in which rainy
days, these pictures have been taken. If it is heavy rain, then such
flooding occurs, this is very usual in Mumbai and its suburb cities.
9. True, the building is of 55 years old, as has been
constructed in the year 1967, however, the structure of the building
apparently seems to be very strong, the suit premises is located hardly
at a distance of 2.5 km away from Vile Parle Railway Station, the
Santacruz Railway Station is also hardly 5 k.m. away from the suit
premises, it is in Juhu locality, which is one of the posh suburbs of
Mumbai. In such circumstance, no property having a carpet area of
700 sq.ft with two B.H.K. having two wash rooms would be available at
the monthly compensation of Rs.18,000/- per month. Therefore, we
find that, the compensation @ Rs.35,000/- would be just and
reasonable in the given facts and circumstances of the case. Hence, we
answer sole point accordingly, and proceed to pass following order
ORDER
1. The application is allowed.
2. The operation and execution of impugned judgment
and decree passed in R.A.E & R Suit No.16/29 of
2004 is hereby stayed till final disposal of appeal on
following conditions :
a) The appellant shall deposit in Court the interim
compensation at the rate of Rs.35,000/- per month
from the date of decree i.e. from 06.05.2023 within a
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6 (Ord) in exhibit 6 in 2A Appeal No.26 of 2023
period of two months from the date of this order, and
shall continue to deposit the same at the rate of
Rs.35,000/- per month on or before 10th day of each
month till final disposal of the appeal.
b) The appellant shall deposit in Court the amount of
agreed rent from the date of the decree i.e. dated
06.05.2023 within one month from the date of this
order, and shall continue to deposit the same at the
same rate on or before 10th day of each month till final
disposal of the appeal.
3. The respondents are at liberty to withdraw the rent
amount as and when deposited by the appellants.
4. The office of this Court is directed to invest the
amount of compensation in Fixed Deposit for one year
in any Nationalized Bank, extendable thereafter, on
yearly basis till further order.
5. The appellant is directed not to create any third party
interest or to hand over possession of the suit
premises to any third person till disposal of the appeal.
6. Costs in cause of the application.
I agree
Sd/- Sd/-
(D.S.Dabhade) (M.S. Pathan)
Judge Additional Chief Judge
Court Room No.41 Court Room No.41
Date : 26.02.2024 Date: 26.02.2024
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