Final Order 4

Order Details: Copy of Judgment
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sMHSCA30010982022 Presented on : 08.09.2022.
Registered on : 21.03.2023.
Date of Decision : 07.10.2024.
Duration of disposal : Years Months Days
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IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(APPELLATE BENCH)
(BANDRA BRANCH)
Misc. Appeal No. 19 of 2023
In
Order Below Exhibit 13
In
R.A.D. Suit No. 215 of 2021
M/s. Dolphin Build Home
A partnership firm registered under the
Indian Partnership Act, 1932, through its
partners (1) Mohammed Shakeel S.
Khamker
Aged about 56 years and
(2) Walliulahainullah Khan,
aged about 59 years through its authorized
signatory Mohd. Faizan W. Khan having its
office at Shop no. 8, Aminabai Chawl, Pandit
Jawaharlal Nehru Road, Near Vakola Masjid,
Vakola Santacruz (East), Mumbai-400055
and at Makhdoomi Palace, Mezzanine Floor
No.1, Opposite Vakola Masjid, Pandit
Jawaharlal Nehru Road, Vakola, Santacruz
(East), Mumbai-400055.
(Appellant/Org.
defendants)
V/s.
Malcolm Charles Lourence Pereira,
Age: 51 years
Occupation : Service
residing at Flat No.08, 1st floor, Valentino
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Building, Near Saint Charles Girls High
School, Vakola Village Road, Santacruz (E),
Mumbai-400055 and at Present residing at
A-302, Hoshang Baug CHS Limited, Saint
Anthony Street, Near Saint Charles School,
Vakola Santacruz (East), Mumbai-400 055.
Respondent
(Org. plaintiff)
Learned advocate Shri Chandrabhan R. Yadav, for appellant.
Learned advocate Shri Harsh T. Pawar for respondent.
Coram : Smt. A.S. Khadse,
Addl. Chief Judge &
Shri D.R. Mali, Judge.
C.R. No. 31 (B.B.)
I/c. C.R. No. 41 (B.B.)
Date : 07.10.2024.
J U D G M E N T :- [Per D. R. Mali, Judge]
1) Feeling aggrieved and dissatisfied with the order dated
28.07.2022 passed by learned trial court below Exh.13 in R.A.D.
Suit No. 215 of 2021, the appellant has preferred this Misc. Appeal.
By this order, the learned trial court has rejected the prayer of
temporary injunction for restraining the respondents from carrying
out any construction on the suit plot. The prayer of injunction for
directing the respondents to produce the documents was also
rejected. However, the learned trial court has directed the appellant
to either provide transit accommodation of the same standard
within the same vicinity or to pay the transit rent @ Rs. 10,000/-
p.m.
2) Appellant is the original defendant. The respondent is
the original plaintiff. (Hereinafter both the parties will be referred as
per their nomenclatures in original suit).
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3) In brief, the facts of the case are as under: -
4) The suit premises stood in the name of Smt. Elsy
Augustine as a tenant who surrendered the tenancy in favour of
erstwhile landlord Ivan Lobo. Later on, by tenancy agreement dated
01.01.2000 executed by erstwhile landlord, plaintiff became
monthly tenant of the suit premises on the monthly rent of Rs.
174/-. The defendant has purchased the suit property by way of
registered conveyance deed dated 05.11.2017. The plaintiff
submitted that the tenancy is heritable and transferable. After the
demise of original tenant, the plaintiff has become the tenant in
respect of the suit premises. She submitted that she was ready and
willing to pay the rent to the defendant. However, the landlord
deliberately did not accept the rent.
5) The plaintiff submitted that the defendant, after
becoming owner of the suit property, intended to redevelop the
property. However, the redevelopment project could not be
materialized. It is submitted that on the basis of FSI, the erstwhile
landlord and owner constructed one additional floor comprising of
three flats which were sold to Mr. Apociano Rebello, Mrs. Pamela
Rita Rebello and Mrs. Blancy Coutinho under the ownership basis.
The licensed Engineer and Surveyed was appointed for
measurement of property flat wise which is in possession of various
tenants. The report was prepared. The list of tenants is annexed to
the deed of conveyance. However, it is in conflict with the list
showing measurements of tenements occupied by the tenant, flat
owners and occupiers.
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6) The plaintiff further submitted that the Mumbai
Municipal Corporation has issued a notice dated 18.06.2018 under
Section 354 of Mumbai Municipal Corporation Act and directed the
owners/occupiers vacate the suit premises as the suit building was
in dilapidated and dangerous condition and came under C-1
category. The plaintiff and other tenants filed a Writ Petition (L) No.
2841 of 2018 before the Hon'ble High Court and challenged the said
notice. However, by accepting the structural audit report prepared
by the Technical Advisory Committee, the said writ petition was
withdrawn. Thereafter, the learned advocate for plaintiff and the
other tenants sent request letter to the defendant to comply with the
guidelines in respect of providing permanent alternate
accommodation. The plaintiff submitted that the tenant must be
rehabilitated as per D.C. regulations No. 33(7)(A). There is
notification to that effect. It is submitted that the defendant
demolished the suit building but did not provide alternate
accommodation to the plaintiff and other tenants. The plaintiff
submitted that the defendant is reluctant to disclose information,
sanctioned plan, commencement certificate and IOD. It is further
submitted that without providing alternate accommodation, the
defendant cannot commence the redevelopment work. Therefore,
the plaintiff has filed an application Exh. 13 before the learned trial
court and prayed for directing the defendant to produce various
documents pertaining to redevelopment and to restrain the
defendant from making further construction. The plaintiff also
prayed for directing the defendant to provide alternate
accommodation or to direct the defendant to pay monthly
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compensation.
7) The defendant contested the said application before the
learned trial court on the ground that there is no landlord and
tenant relationship between the defendant and plaintiff. The
defendant submitted that the plaintiff has approached before the
court with unclean hands and suppressed true and material facts.
The defendant submitted that this court has no jurisdiction to try
and entertain the suit and the plaint is liable to be rejected. The
defendant submitted that after purchasing the suit property, the
previous owner/landlord had issued letter of attornment to the
respective tenants of the building. However, despite demanding the
documentary evidence, the plaintiff did not show her tenancy rights.
The defendant admitted that Mumbai Municipal Corporation has
demolished the structure. However, no plan for redevelopment has
been submitted. It is further submitted that the plaintiff is not tenant
and she has no tenancy rights in the suit premises. The list of
tenants annexed with the deed of conveyance is denied by the
defendant. The defendant submitted that there is no question of
providing transit accommodation as per Section 33(7)(A) of the
D.C. Regulation.
8) After considering the application, reply and after
hearing learned advocates for both the parties, the learned trial
court came to the conclusion that the plaintiff failed to show prima
facie case in her favour for grant of interim injunction. The learned
trial court has also recorded the finding that the defendant cannot
be directed to produce the documents i.e. map, sanctioned plan and
other correspondence. However, the learned trial court has accepted
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the fact that the building has been demolished and plaintiff being
tenant in respect of suit premises is entitled to transit
accommodation or transit rent @ Rs. 10,000/- p.m. This part of the
order has been challenged by the defendant on the ground that the
plaintiff has not shown any documentary evidence to establish the
tenant landlord relationship. The defendant submitted that the
learned trial Court has not considered the facts correctly and passed
an erroneous order. Hence, the defendants prayed for allowing the
appeal and to reject the application at Exh. 13 entirely.
9) After considering the rival contentions of both the
parties and their learned advocates, following points arise for our
consideration to which we have recorded our findings together with
the reasons as under :-
Sr. No. POINTS FINDINGS
1) Whether plaintiff has shown prima
facie case in her favour for grant of
temporary injunction? “In the Negative.”
2) Whether balance of convenience lies in
favour of the plaintiff and whether she
will suffer irreparable loss if the
injunction as prayed is not granted in
her favour ? “In the Negative.”
3) Is plaintiff entitled for direction to the
defendant to produce the documents
in respect of the redevelopment of the
suit building? “In the Negative.”
4) Is plaintiff entitled to temporary transit
accommodation or monthly rent as
prayed? “In the Affirmative.”
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5) Whether the learned trial court has
committed any error in partly
allowing the application and
granting transit rent or transit
accomodation?
“In the Negative.”
6) Whether the interference of this court
is required in setting aside the
impugned order ? “In the Negative.”
7) What Order ? “This M. Appeal is
dismissed with costs as
per final order.”
R E A S O N S
As to Point No. 1 & 2 :
10) We have heard learned advocates for both the parties.
The learned advocate for defendant has argued that the learned trial
court has committed an error in arriving at the conclusion that the
plaintiff has prima facie shown to be tenant in respect of suit
premises. He argued that the plaintiff has failed to prove that she is
a tenant in respect of the suit premises. He argued that the plaintiff
cannot claim temporary injunction against the defendants for
directing the defendant to stop construction work. He argued that
the plaintiff is also not entitled to transit accommodation or monthly
transit rent. He argued that the order of the learned trial court in
rejecting the temporary injunction is just and proper but the order of
learned trial court in directing the defendant to provide transit
accommodation or transit rent is erroneous. He argued that the
plaintiff is not entitled to any relief.
11) The learned advocate for the plaintiff has argued that
the plaintiff has shown that she is a tenant in respect of suit
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premises. This fact has been appreciated by the learned trial court
but it is erroneous on the part of learned trial court that it has not
granted temporary injunction in favour of plaintiff. He further
argued that the learned trial court has rightly directed the defendant
to provide temporary transit accommodation or to pay the transit
rent. He argued that the transit rent may be enhanced.
12) On perusal of documents and considering the admitted
facts, there is no dispute that the Mumbai Municipal Corporation
had issued notice in respect of the suit building under Section 354 of
the Mumbai Municipal Corporation Act on 18.06.2018. The said
notice was issued on the basis of structural audit report. The said
notice was challenged by the plaintiff and other tenants by filing
Writ Petition (L) No. 2841 of 2018 before the Hon'ble High Court.
The record shows that the said writ petition was withdrawn by the
tenants and they have accepted the structural audit report given by
the Technical Advisory Committee (TAC). It shows that the building
was in dilapidated condition and it was required to be demolished
by the defendant. Accordingly, it was demolished. In a conveyance
deed dated 05.11.2017, the list of tenants has been provided. In the
said list the name of original tenant who is the husband of plaintiff
No. 1 and father of plaintiff No. 2 is reflecting. On the basis of this
evidence, the learned trial court has recorded the conclusion that
the plaintiff has prima facie shown that she is a tenant as per
Section 7(15)(d) of the Maharashtra Rent Control Act. While
deciding the application for temporary injunction, the court is
expected to see prima facie evidence. In this suit, the prima facie
evidence would be the conveyance deed and the list of tenants
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affixed therein. On the basis of that prima face evidence, the learned
trial court has recorded the conclusion that the plaintiff is the
tenant. There is no error committed by the learned trial court in
recording these findings on the basis of list of tenants annexed to
the deed of conveyance. Therefore, the fact has become clear that
the present plaintiff is a tenant in respect of the suit premises.
13) Admittedly, the suit building has been demolished. As
per the settled principles under Maharashtra Rent Control Act, the
demolition or destruction of the building will not extinguish the
tenancy rights of the tenants. If the building is demolished or
destructed, then the tenants are entitled to re-enter after
reconstruction of the new building. It appears that the defendant
intends to reconstruct the building. However, as per the
requirements of law, the defendant is required to produce the
agreement for providing permanent alternate accommodation to the
tenants in the newly constructed building or the settlement between
the defendant and the tenants. It shows that in absence of such
documents, the defendant cannot commence the construction.
Therefore, if the proposal for redevelopment of the building is
submitted by the defendant before the Mumbai Municipal
Corporation, then in absence of such documents, Mumbai Municipal
Corporation will not issue commencement certificate. This fact has
been rightly appreciated by the learned trial court and therefore, the
finding recorded by the learned trial court that the plaintiff has
failed to show prima facie case in her favour for grant of temporary
injunction is just and proper. If the defendant is not restrained from
commencement of construction work, then the plaintiff will not
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suffer irreparable loss because her tenancy rights will not extinguish.
The balance of convenience is not in favour of plaintiff. Hence, we
come to the conclusion that the learned trial court has rightly
rejected the prayer for temporary injunction to restrain the
defendant from making the construction. Therefore, we answer
point Nos. 1 and 2 in the negative.
As to Point No. 3 :
14) The plaintiff is seeking direction to the defendant to
produce the proposed sanctioned plan and other documents in
respect of redevelopment. The defendant has denied that such
proposal is submitted before the Mumbai Municipal Corporation.
The plaintiff has not produced anything to show that the defendant
has actually submitted proposal for redevelopment. In this situation,
the defendant cannot be directed to produce those documents.
Hence, at this stage, the direction cannot be given to the defendant
to produce the documents such as map, sanctioned plan and other
correspondence. This fact has been properly appreciated by the
learned trial court and recorded the correct finding. We do not find
any impropriety in this finding. Hence, we answer point No. 3 in the
negative.
As to Point No. 4 :
15) The main challenge in this appeal is with respect to
direction to the defendant to provide transit accommodation or
transit rent. The defendant is opposing for grant of transit rent or
transit accommodation. As discussed earlier, the plaintiff has prima
facie shown that she is a tenant in respect of suit premises. She was
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occupying the suit premises before its demolition. Her rights as a
tenants will not extinguish. The defendant being the landlord and
trying to redevelopment the property, is under obligation to provide
transit accommodation or the transit rent as per the provisions of
Section 33(7)(A) of the D.C. Regulation. The learned trial court has
correctly appreciated this fact and directed the defendant either to
provide alternate accommodation or transit rent. Hence, the order
of learned trial court directing the defendant to provide alternate
accommodation or to pay transit rent is just and proper. There is no
error in this order. Hence, we answer point No. 4 in the affirmative.
As to Point No. 5, 6 & 7 :
16) Considering all the above reasons and discussions, we
come to the conclusion that the learned trial court has rightly
appreciated the facts and documents on record and recorded the
correct findings. The defendant is liable to pay transit rent or to
provide transit accommodation to the plaintiff. In this situation, we
do not find any error in the order passed by the learned trial court.
Hence, interference of this court is not required at all. Therefore, we
answer point No. 5 and 6 accordingly and in answer to point No. 7
we proceed to pass the following order :
O R D E R
1) The Misc. Appeal No. 19 of 2023 stands
dismissed with costs.
2) The order dated 28.07.2022 passed by the
learned trial court below application Exh.13
in R.A.D. Suit No. 215 of 2021 is hereby
confirmed.
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3) Inform to the learned trial court, accordingly.
I Agree,
(A.S. Khadse) (D.R. Mali)
Addl. Chief Judge Judge,
C.R. No. 31 (B.B.) C.R. No. 31 (B.B.)
I/c. C.R. No. 41 (B.B.) I/c. C.R. No. 41 (B.B.)
07.10.2024 07.10.2024
Judgment dictated on : 07.10.2024.
Judgment transcribed on : 07.10.2024.
Judgment checked & signed on : 14.10.2024.
/home/steno31/varsha/Corrected October-2024/19-23-M.Appeal(apl for pro.bmc docs IOD,etc,Inj,transit accomo. prtly allowd by TC-M.Appeal dismissed byAC)7.10.24.odt
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