Order 3

Order Details: Order on Exhibit
Pdf Text: IN THE SMALL CAUSES COURT AT MUMBAI
( BANDRA BRANCH )
ORDER BELOW EXHIBIT NO. 18
IN
R. A. E. & R. SUIT NO. 589 OF 2022
C. N. R. NO. MHSCA30008032022
1. MRS. PHILOMENA MERLYN MACHADO & Ors. …PLAINTIFFS
V/S
DR. SATISH NAIK (Full name Not Known) …DEFENDANT
********
Ms. Eventa A. Gonsalves, Advocate for Plaintiff.
Ms. Aakansha R. Sakpal, Advocate for Defendant.
********
Coram : V. G. Upadhye, Judge
Court Room No.33
Date : 20th October 2023
ORDER
This suit is filed for eviction of the defendant on the
ground of default in payment of rent and for violation of terms of the
tenancy in respect of the suit premises bearing Room No.2 (clinic),
admeasuring 200 sq. feet, situated at Edward Machado Chawl, Sahar
Village, Andheri (East), Mumbai – 400 099, surrounded by, towards
the East – Room No.3, towards the West – Room No.1, towards the
North – Road No.3 and towards the South – open space (hereinafter
referred as the ‘
Suit Premises’ for the sake of brevity and
convenience). The instant application is filed for restraining the
defendant by an order of injunction from carrying out structural
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additions and alterations in the suit premises and constructing any
upper floor on the suit premises and for restraining him from
subletting the suit premises or giving the same on leave and licence
basis or inducting any third person in it, pending the hearing and
final disposal of the suit as per the provision contained in Order 39,
Rule 1 of the Civil Procedure Code, 1908. The plaintiff also prayed
for appointment of Commissioner for local inspection of the suit
premises by visiting it and for reporting the condition and status of
suit premises.
2] It is contended in the application that the defendant is
monthly tenant of the suit premises. The suit premises are let out to
him for the purpose of running a clinic on monthly rent of Rs.233/-
inclusive of permitted increases and exclusive of municipal taxes. He
has defaulted in payment of rent since April 2015. Therefore, on
26.11.2019, the plaintiffs issued legal demand notice to the
defendant on the address of the suit premises. The envelope of
notice sent by R.P.A.D. is not claimed by him. By way of the said
notice, plaintiffs have also terminated his tenancy. He has also
caused waste and damage to the suit premises and thereby
committed the breach of terms of the tenancy.
3] According to the plaintiffs, when the bailiff of this Court
went on the suit premises to serve copy of the suit summons, it were
found locked and there was name-board of Dr. Jaykumari Tiwari
instead of name-board of the defendant. On inquiry, it is found that
the defendant has sublet the suit premises to Dr. Tiwari without the
consent of the landlords. The defendant has left the suit premises
and handed over its full and complete charge to Dr. Tiwari who is in
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its exclusive use, occupation and possession. According to plaintiffs,
after filing of the suit, it is also found that the defendant started
extensive masonry work in the suit premises and Dr. Tiwari has
removed the asbestos sheet roof and started construction of an upper
floor thus increasing the floor space area. This construction is being
carried out without written consent of the plaintiff or B.M.C.
Therefore, plaintiffs lodged a police complaint against the defendant.
However, as defendant and his contractor are influential persons, the
police have not taken any action against the unauthorized
construction work being carried out in the suit premises. If the
construction work is allowed to be continued, there is apprehension
that plaintiffs will be exposed to a penal action under the provisions
of the Maharashtra Regional Town Planning Act and the Mumbai
Municipal Corporation Act.
4] The defendant has sternly resisted the application by
filing written say at Exh.14. At the outset, the defendant has clearly
denied the status of plaintiffs as his landlords. He emphatically
denied the existence of landlord-tenant relationship between himself
and plaintiffs. He clearly denied that he has parted with possession
of the suit premises and sublet it to Dr. Tiwari. He also refuted the
allegations of erecting a permanent structure by way of constructing
an upper floor. It is his specific demurrer that he was carrying out
only water proofing work on the roof of the suit premises in order to
prevent leakage. According to him, plaintiffs have no concern with
the suit premises and they have no right to prevent him from carrying
out repairs work. He ascertained that Dr. Tiwari is his aide and who
assists him in the clinic in his absence. For these and such other
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reasons, the defendant prayed for rejection of the application.
5] From the rival pleadings of both parties, the following
points arise for my determination and I have recorded my findings
thereon for the reasons given below:
Sr.No POINTS FINDINGS
1) Whether plaintiffs have made out a prima
facie case in their favour?
Yes.
2) In whose favour balance of convenience
lies?
Plaintiffs.
3) Who will suffer irreparable loss in case,
the application is granted or rejected?
Plaintiffs.
4) What order? Application is
partly allowed.
REASONS
AS TO POINT NO.1:
6] The suit, as disclosed earlier, is filed for eviction of the
defendant from the suit premises on the ground that the defendant
has defaulted in payment of rent and by causing waste and damage
to the suit premises, he has breached the terms of the tenancy. To
show prima facie case in their favour, they have produced documents
such as recent photographs of the suit premises, copy of counter foil
rent receipt dated 18.02.2019, copy of demand notice dated
26.11.2019, copy of returned notice envelope along with postal
remark, “unclaimed”, etc. On the other hand, defendants did not rely
upon any documents to support his stand.
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7] It is pertinent to note that, initially, the suit has been
filed for eviction of defendant only on the ground of default in
payment of rent. They have made allegations of illegal and
unauthorized construction in the suit premises and its subletting to a
third party, during pendency of the suit which necessitated moving
the present application. As per the statement of arrears of rent, the
defendant has defaulted in paying the rent from April 2015.
However, the single counter foil of rent receipt reflects that the rent
of the suit premises of Rs.433/- is paid on 18.02.20219 and the said
rent was accepted by the receiver for the month of May 2014. This
counter foil is not signed by the defendant. Thus, there is some
discrepancy in the documents filed by the plaintiffs and the
contentions raised in the plaint. They have not produced any other
document to show their right of ownership over the suit premises or
as the case may be, to show that they are landlords of the suit
premises. Plaintiffs have not disclosed their relationship with
deceased-landlord or owner of the suit property.
8] Admittedly, the defendant is the tenant of the suit
premise. He has denied the landlord-tenant relationship between
himself and plaintiffs as aforementioned. But, he has not whispered
in the written say or in his written statement as to who is the real
landlord or the owner of the suit property and the suit premises. He
has also not flatly denied that he has started construction on the suit
premises with bricks and cement. It is not his contention that he has
obtained written or oral permission of the landlords before carrying
out such constructions. He has not even obtained such permission
from B.M.C.
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9] The photographs produced by plaintiffs do reflect that
one Dr. Jaykumari Tiwari’s name-board is displayed on the outer wall
of the suit premises. If at all Dr. Tiwari is assisting the defendant in
his medical practice as contended by him, there is no plausible
explanation as to why his name-board is not displayed along with the
name of Dr Tiwari. There is not a single document to show that the
defendant is still in occupation of the suit premises along with Dr.
Tiwari. It was possible for the defendant to show his continuous
possession over the suit premises by producing any document such
as, electricity bills or the prescription slips if at all being issued by
him. None of those documents are filed on record to contradict
plaintiffs’ contentions. On the other hand, the copies of photographs
are suffice to believe that either the defendant or Dr. Tiwari has
started permanent construction of upper floor in the suit premises.
Even Dr. Tiwari did not come forward to say on affidavit that the suit
premises are not sublet to her. Therefore, there is no other alternative
except to believe that plaintiffs have shown prima facie case in their
favour. Hence, in conclusion, I answer Point No.1 in
“affirmative”.
AS TO POINT NOS. 2 & 3:
10] As the dispute is in respect of an immovable property,
therefore, adjudication has to be made in consonance with
irreparable loss which would have been treated in favour of plaintiffs
including balance of convenience. In the circumstances discussed
supra, as plaintiffs have prima facie case in their favour, I conclude
that, balance of convenience and irreparable loss shall cause to them
only as the defendant could not show that he would be at any loss, if
he is restrained by an order of injunction. Hence, considering the
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reasonable apprehension of the plaintiffs in respect of alienation of
suit premises/ creation of third party’s interest in it and apprehension
of erection of permanent construction in the suit premises, to avoid
the technicalities, running of transactions pendent lite need to be
restricted. In the result, I proceed to record my "
affirmative" findings
as to
Points Nos.2 & 3. At the same time, I hold that there is no
necessity at this juncture, to appoint a Commissioner for local
inspection of the suit premises as the defendant has given
undertaking that he will maintain status quo in respect to the suit
premises.. In totality of the circumstances, I proceed to pass following
order:
ORDER
1) Application at Exh.18 is partly allowed.
2) The defendant is hereby temporarily
restrained from parting with possession or
creating third party right in the suit
premises, more precisely described in para
No.1 of this order, pending the disposal of
the suit.
3) The prayer of plaintiffs regarding
appointment of Commissioner is rejected.
( Dictated and pronounced in open Court. )
( V. G. Upadhye )
Date : 20.10.2023 Judge, C. R. No.33
Order dictated on : 20.10.2023
Order checked & signed on : 20.10.2023
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