Interim Order 2

Order Details: Order on Exhibit
Pdf Text: Order dtd. 30.01.2026 :: 1 :: Exh.12 R.A.D. Suit No. 426 of 2023
CNR No. MHSCA- 3000800-2023
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
Order Below Exhibit -12
In
R.A.D. Suit No. 426 of 2023
Mrs. Sudha Kanaiyalal Raval ….... Plaintiff.
V/s.
JLS Builders & Developers Private Limited …... Defendants.
Advocate for the plaintiff : Mr. Munir Merchant, Mr.Ganesh Iyer,
Mr. Shadab Peerzade, Mr. Ishwar Varak
Advocate for the defendant : Mr. Gulabsingh Yadav
Coram : Mr. P. P. Naigaonkar,
Judge, C.R. No. 38 (B.B.)
Date : 30th January, 2026
Order :
1. Read application, reply filed thereon. Heard.
2. This application is filed by the plaintiff praying that, pending
the disposal of this suit, the defendant be ordered not to sell or
alienate one residential flat ad-measuring about 582 sq.ft. carpet
usable area presently being constructed in the subject property and
one parking space.
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3. It is stated by the plaintiff that, he has filed this suit seeking
declaration that the plaintiff is a “Tenant" in the subject property,
which has since been demolished by the defendant. The defendant
has already taken "Consent Letter" from the Plaintiff as Tenant and
submitted the same to the authorities for taking permissions to
undertake redevelopment of subject property. The subject property is
already demolished and new structure is being built, in which the
plaintiff is entitled to receive residential flat & parking space as per
defendant’s promise and writing. The defendant is likely to sell all
new flats in the said property pending disposal of this suit and that
will frustrate the claim of plaintiff pending disposal of this Suit.
Thus, prayed to allow the application.
4. The defendant has filed reply at Exhibit-16 and contended
that the present application filed is not maintainable, bad in law,
illegal, improper, unjust, without any cause of action and the same is
liable to be dismissed with costs. The present suit is filed by the
plaintiff against the defendant i.e. ‘J.L.S. Builders & Developers Pvt.
Ltd.’, who if found to be existing Company is no way concerned with
the title and entitlement of the suit property comprising the suit
premises and suit building and the said ‘J.L.S. Builders & Developers
Pvt. Ltd.’ are not the owners and landlords of the suit property
comprising the suit premises. ‘M/s. JLS Builders & Developers LLP’
have filed their Written Statement in the present suit dealing with
the title and entitlements in respect of the suit property comprising
the suit premises and further pleaded the fact that J.L.S. Builders &
Developers Pvt. Ltd. are not the landlords and owners and/or
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concerns to the title and entitlements pertaining to the suit property
comprising the suit premises. Despite being aware and bringing the
said fact to the notice of the Plaintiff, he has not chosen to correct
her mistake in the present suit and accordingly, the issue of
maintainability be framed and is to be tried and entertained before
getting into the trial of the other issues involved in the matter.
5. It is further denied by the defendants that, the plaintiff is
entitled to the tenancy right and new premises in lieu of demolished
suit premises. It is stated that the tenancy rights of the Plaintiff are
already terminated and M/s. JLS Builders & Developers LLP is in
process of filing eviction proceedings shortly against the Plaintiff and
the other heirs and legal representatives of deceased tenant Mr.
Kanaiyalal M. Rawal. Upon demolition and destruction of the suit
premises, the tenancy rights of the plaintiff and the other heirs and
legal representatives of deceased tenant Mr. Kanaiyalal M. Rawal
stands determined and the plaintiff is not entitled for any reliefs
prayed in the present notice or in the suit. It is denied that, the rights
of the Plaintiff will frustrate. The plaintiff is not entitled for any
reliefs prayed in the suit. Thus, prayed to dismiss the application.
6. In view of rival pleadings of the parties, following points arise
for my determination and I record my findings thereon for the
reasons to follow :-
Sr.No. POINTS FINDINGS
1 Whether the plaintiff proves
prima-facie case in her favour ? In the affirmative
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2 Whether balance of convenience
lies in favour of plaintiff ? In the affirmative
3 To whom irreparable loss will be
caused, if the temporary
injunction in the form of interim
relief, as prayed, is granted or
refused ?
Irreparable loss will be
caused to the plaintiff, if
temporary injunction in
the form of interim relief
is not granted.
4 What order ? As per final order
R E A S O N S
AS TO POINT NOS. 1 TO 4 :
7. As these points are interlinked with each other, they are
discussed together to avoid repetition.
8. It is the contention of the plaintiff that, pending the disposal of
this suit, the defendant be ordered not to sell or alienate one
residential flat ad-measuring 582 sq.fts. carpet usable area presently
being constructed in subject property and one parking space. The
defendant has denied these contentions. On going through the
description of the suit premises, it appears that, Room No.5 on the
First Floor is described as ad-measuring 354 sq.feet. carpet area
situated in the tenanted building named Moti Niwas situated at Plot
bearing F.P No.305 of TPS V of Vile-Parle, CTS No.1850 and 1850/1
to 9 of Village Vile-Parle at junction of Sharddhanand Road and Sant
Muktabai Road, Vile-Parle (E), Mumbai- 400 057. On going through
the above description of the suit premises, it appears that, the
plaintiff has wrongly prayed for 582 sq.ft. carpet area in the prayer
clause and one parking space in prayer clause (a) of application. The
plaintiff has not given details of the said measurements in order to
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justify the claim of 582 sq.ft. carpet area in the present application.
9. It is the contention of the plaintiff that, he has filed declaration
suit for declaring himself as “tenant” of the suit premises. It is further
stated that, defendant had already taken consent letter from plaintiff
as tenant and submitted the same to various authorities for taking
permissions to undertake redevelopment of the suit property. The suit
property is already demolished and new structure is being built up. It
is the contention of the plaintiff that, he is entitled to receive
residential flat and parking space as per defendant’s promise and
writing. The plaintiff has also stated that, there is an apprehension
that, the defendant likely to sell all new flats. The said contentions
has been denied by the defendants by filing detailed reply below
Exhibit-16. The defendant has stated that, the present application
itself is not maintainable as filed without cause of action. The
defendant has stated that, plaintiff has filed the suit against the
defendant i.e. ‘J.L.S. Builders and Developers Pvt. Ltd.’ who if found
to be existing company, is no way concerned with the title and
entitlement of the suit property comprising the suit premises.
‘J.L.S.Builders and Developers Pvt. Ltd.’ are not the owners and
landlords of the suit property. The defendant has denied all the
contentions mentioned in the application and stated that, the tenancy
rights of the plaintiff are already terminated before demolition of the
suit premises. Hence, the tenancy rights of the plaintiff are already
determined. Hence, the application is liable to be rejected.
10. Now, the plaintiff has to establish the prima-facie case that, she
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is the tenant of the suit premises. The second thing which the
plaintiff has to prove is that, the defendant is landlord of the suit
premises. In order to substantiate this fact, the plaintiff has stated
that, the plaintiff along-with her family comprising of her son by
name Mr. Bhadrasheel Raval, elder daughter Ms.Bina Raval and her
younger daughter Naimita K. Raval lived in the suit premises since
1968. It is further stated that, they have resided continuously without
any hindrance by any person, including the landlords i.e. defendant.
The original tenant in respect of the suit flat was the plaintiff’s
deceased husband namely Kanaiyalal M. Raval and after his demise,
the tenancy rights of the suit flat has been transferred in the name of
plaintiff. The plaintiff is paying monthly rent regularly to the
defendant landlord without any default. Mr. Kanaiyalal M. Raval died
on 16th June, 2019. The defendant was issuing the rent receipts in
favour of the plaintiff. In order to substantiate this fact, the plaintiff
has filed on record list of documents along-with Exhibit-3. On going
through the rent receipts, it prima-facie appears, the same has been
issued in the name of Kanaiyalal M. Raval for various periods.
11. In order to further substantiate the contentions, the plaintiff
has also filed on record the document of MTNL Bill, ration card,
Aadhar Card, copy of notice dtd. 24.03.2022 issued by MCGM, copies
of intimation of redevelopment dtd. 22.01.2022 and other documents
issued by MHADA and B.M.C. along-with notice sent by the
defendant dtd. 14.03.2023. On going through these documents, it
prima-facie appears that, the plaintiff is paying all the outgoing
charges to the various authorities. From the documents, it also
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appears that the plaintiff is residing in the suit premises. It appears
that, subsequently, the suit property was declared as ‘C-1’ Category by
the Municipal Corporation of Greater Mumbai on 24.03.2022.
Accordingly, defendants have given intimation letter dtd. 22.01.2022
requesting plaintiff to give Irrevocable Consent Letter for
Redevelopment of the suit building. Accordingly, along-with all the
tenants, the plaintiff has signed the proposal which is termed as
Consent Letter in the form of Irrevocable Consent Letter to MHADA.
Accordingly, the plaintiff has also handed over the keys to the
defendant. The plaintiff was not executed or registered with
Individual Permanent Alternate Accommodation Agreement hence,
she has made various communications to various authorities. The
plaintiff has also filed the said documents along-with the suit. On
going through all these documents, it appears that, prima-facie, the
plaintiff was in possession of the suit premises after the demise of Mr.
Kanaiyalal M. Raval. At this juncture, it can not be said that, the
defendant is not the landlord of the suit property and also the suit
premises. In view of the oral and documentary evidence, till the suit
premises is vacated by the plaintiff, the plaintiff was in possession of
the suit premises. It prima-facie establish by way of the oral as well as
documentary evidence that, the plaintiff can be presumed as ‘tenant’
of the suit premises.
12. Just before the redevelopment, the defendant has issued notice
through his Advocate dtd. 14.03.2023 to terminate the tenancy of the
plaintiff. The said notice was replied by the plaintiff. The defendant
has issued the said notice on the ground of additions and alterations.
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This itself shows that, the defendant has issued notice to the plaintiff
presuming the plaintiff as ‘tenant’ of the suit premises. In view of the
above circumstances, the plaintiff has prima-facie proved that, she is
the tenant of the suit premises. Now, the suit premises has gone in
redevelopment and the existing structure is demolished. As per the
various authorities of the Hon’ble Supreme Court and the Hon’ble
High Court after demolition of the suit premises, which has gone in
redevelopment, the tenancy rights of the tenant does not extinguish.
In view of the same, the plaintiff is entitled for new residential
premises in newly constructed building according to her occupation
of a specific premises as tenant. In view of the same, the plaintiff has
rightly made this application for the grant of interim relief.
13. In support of his contentions, learned Advocate for the
defendants relied upon following provisions of Law :-
1. Section 7 of the Maharashtra Rent Control Act,
1999- Definition of Landlord, Tenant & Premises- The
relationship in between landlord and tenant is directly
related to the premises in existence. Relevant-Sub-Section
(3), (9) & (15)
2. Section 33 of the Maharashtra Rent Control Act,
1999- Jurisdiction of Small Causes Court relates to disputes
in between landlord and tenant and directly relates to
tenanted premises in existence.
3. Section 105 to 111 of Transfer of Property Act, 1882-
Provisions relating to Leases of Immovable Property and
rights and liabilities of lessor and lessee
14. In support of his contentions, learned Advocate for the
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defendants relied upon following Case Laws :-
[1] In case of Vannattankandy Ibrayi vs. Kunhabdulla
Hajee (AIR 2003 Supreme Court 4453), it is observed in
Head Note A- Head Note B- Upon destruction of tenanted
premises tenancy rights stands extinguished and if the
same is not in existence there in an end of tenancy.
[2] In case of V. Dhanapal Chettiar Vs. Yesodai Ammal
AIR 1979 Supreme Court 1745 - ), it is observed that, Once
the liability to be evicted is incurred by the tenant he
cannot turn round and say that the contractual lease has
not been determined.
[3] In case of Pradesh Kumar Bajpaie Vs. Benod Behari
Sarkar (Dead) by L.Rs. AIR 1980 Supreme Court 1214, it
is observed that, the tenant cannot enjoy protection under
Transfer of Property Act and Rent Act. The theory of double
protection or additional protection is not available a to a
tenant. Tenant can either seek protection under Transfer of
Property Act or under Rent Act.
[4] In case of Leelabai Maruti Holkar vs. Smt. Chaturabai
Siddheshwar Javeri [2009(2) Mh.L.J 194], it is observed
that, there could not be subsisting tenancy where the
property is not in existence. Claim for reconstruction of
room by the tenant- held there is no provision provided in
Act as such - Tenant can claim possession of the room only
in case the landlord obtains a decree against the tenant u/s
13 (1) (kk) of Bombay Rent Act.
[5] In case of Shri. Shivram Ladu Nitardekar vs. Shri.
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Alex Fernandes & Ors. 2006(3) ALL MR 119, it is observed
that, tenancy of residential premises extinguish if tenanted
premise collapse on account of natural causes- Tenancy is a
relationship between a landlord and a tenant and that
relationship is in respect of a subject matter and in the case
at hand it was in respect of a structure which the Plaintiff
fearing to collapse, abandoned and thereafter it collapsed
on account of natural causes. The interest of the tenant in
the land on which the premises existed was only incidental.
Plaintiff tenant has failed to pay the rent after the collapse
of the premises and tenant leaving the premise amounts to
implied surrender and abandonment of claim of tenancy.
[6] In case of Dr.V. Sidharthan vs Pattiori Ramdasan AIR
1984 Kerala 181, it is observed that, tenanted premises
completely damaged by lorry - the tenancy comes to an end -
tenant not entitled to construct new premises on the site.
[7] In case of Shri. Vasant Vinayak Gad & Ors.Vs. Shri.
Pavan B. Purohit -Order dtd. 17th August, 2015 below
Exhibit-16 in R.A.D.Suit No.364 of 2014, it is observed
that, in the event of demolition of the suit premises/suit
building by MCGM under Section u/s 354 of BMC Act, the
tenancy of the tenant ceases to exist. The Small Cause
Court has no jurisdiction to entertain and try suit for
possession of alternate accommodation and Injunction in
such case.
[8] In case of Mr. Laxman Dyandeo Sawant and Ors.vs.
Shri. Pavan B. Purohit -Order dtd. 21st February, 2018
below Misc. Appeal No. 45 of 2016 in Order below Exhibit-
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16 in R.A.D. Suit No.364 of 2014 it is observed that, in the
event of demolition of the suit premises/suit building by
MCGM under Section u/s 354 of BMC Act, the tenancy of
the tenant ceases to exist. The Small Causes Court has no
jurisdiction to entertain and try suit for possession of
alternate accommodation and Injunction in such case.
[9] Smt. Sunita Krishna Bhatt vs. Smt. Sulbha G. Desai &
others Order dtd. 28th March, 2019 R.A.D. Suit No. 149 of
2012. In the event of demolition of the suit premises/suit
building by MCGM under Section 354 of BMC Act the
tenancy of the tenant ceases to exist. The Small Cause
Court has no jurisdiction to entertain and try suit for
possession of alternate accommodation and Injunction in
such case.
[10] Abdul Khuddus vs. H. M. Chandiramani (Dead)
through LR’s. and others Civil Appeal No. 1833 of 2008
Order dtd. 14/09/2021 – AIR 2021 SC 4321. Upon
destruction of suit premises tenancy comes to an end-
Tenancy of a premises does not ipso-facto create right in
the land. The judgment of Hon'ble Supreme Court passed
in the case of Shaha Ratansi Khimji & Sons Versus Proposed
Kumbhar Sons Hotel (P) Ltd. Reported in (2014) 14 SCC
Pg. 18 (AIR 2014 SC Pg. 2895) was passed under Transfer
of Property Act and not under Rent Act.
15. Defendant has filed on record copies of following documents :
(1) Certificate of Registration on Conversion of JLS
Builders & Developers Private Limited to JLS Builders &
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Developers LLP dtd. 24th August, 2022
(2) Commencement Certificate of New Building on the
suit property issued by Mumbai Municipal Corporation dtd.
03rd November, 2023
(3) Order copies passed in Writ Petition No. 5335 of
2024 dtd. 01.04.2025 and 15.04.2025 by the Hon’ble High
Court.
16. In view of the above discussion, the plaintiff has prima-facie
established the case for grant of temporary injunction in the form of
interim relief. Balance of convenience lies in favour of the plaintiff.
Irreparable loss will be caused to the plaintiff, if the interim relief is
not granted. In view of the above circumstances, I answer Point Nos.
1, 2 and 3 in affirmative & pass the following order for Point No. 4 :-
O R D E R
[1] The application (Exhibit-12) is allowed.
[2] Pending the disposal of this suit, the defendant is ordered not
to sell or alienate one residential flat in accordance with the area
occupied by the tenant-plaintiff in old building and in accordance
with law & consent letter, in the newly constructed building as per
rules till the disposal of the suit.
[3] No order as to costs.
(Dictated and pronounced in open Court)
(P. P. Naigaonkar)
Judge, C.R. No. 38 (B.B.)
Date : 30.01.2026 Small Causes Court, Mumbai
Dictated on : 30.01.2026
Typed, Checked & Signed on : 04.02.2026
/home/steno38/Desktop/JANUARY, 26 CR 38/30.01.26/final 30.01.26/FINAL 30.01.26 EXH-12 RAD 426-2023 INTERIM RELIEF.odt snj
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