Final Order 3

Order Details: Copy of Judgment
Pdf Text: CNR No. MHSCA30011072022
Presented on : 12.09.2022
Registered on : 29.09.2022
Decided on : 24.11.2023
Duration : 1 Y 2 M 12 D
IN THE COURT OF SMALL CAUSES AT MUMBAI
(APPELLATE BENCH)
(BANDRA BRANCH)
Revision Application No. 84 of 2022
IN
Exhibit No. 87
IN
R.A.E. Suit No. 348/693 of 2007
Mr. Surendra Pratap Ramshiromani Singh
Aged about 48 years Occ : Business
of Mumbai Indian Inhabitant, residing at
Devyani ‘C’ Building, Flat no. 6, Shakti Nagar
Dahisar (East), Mumbai 400 068 : Applicant
(Org. Plaintiff)
Versus
1. Mrs. Sudha Jaishankar Pillai
Age & Occ.not known, Adult
Indian Inhabitant of Mumbai
Residing at Gala No.1
situated at Shivmurat Singh Chawl
Bhoot Bunglow Compound
Subhash Road, Vile Parle (East)
Mumbai 400 057
2. Shri Ranjit Pardeshi
Age & Occ.not known, Adult
Indian Inhabitant of Mumbai
Residing at Gala No.1
situated at Shivmurat Singh Chawl
-- 1 of 11 --
2 Rev. 84 of 2022
Bhoot Bunglow Compound
Subhash Road, Vile Parle (East)
Mumbai 400 057
3. Shri Amish A. Shah
Age and occ.not known, Adult
Indian Inhabitant of Mumbai
Residing at B-302, Poonam Apartment
Dr. AB Road, Worli, Mumbai 400 018
And
Running his business at Gala no. 1
situated at Shivmurat Singh Chawl
Bhoot Bunglow Compound
Subhash Road, Vile Parle (East)
Mumbai 400 057
: Respondents
(Orig. Defendants)
Appearance :
Mr. K.D. Pandey with counselor Mr. J.S. Pandey, learned Advocate for
the Applicant
Mr. Abhay D. Thorat, learned Advocate for the Respondents
Coram : Smt. A.S. Khadse
Additional Chief Judge
And
Smt. R.N. Bansal
Judge, Court Room No. 31
Date : 24.11.2023
JUDGMENT : (Per A.S. Khadse, Additional Chief Judge)
This revision petition has been preferred by the
applicant/original plaintiff against order dated 02.08.2022 of learned
trial court below application (Exh. 87) for inspection of suit premises
-- 2 of 11 --
3 Rev. 84 of 2022
in RAE Suit no. 348/693 of 2007, whereby, the said application came
to be rejected.
2. Both the parties are hereinafter referred as per their
nomenclature in the original suit. The applicant is original plaintiff
and respondents are original defendants.
3. In brief, the facts of the case are as under-
The plaintiff has filed original suit for eviction against
defendants on the grounds of bonafide requirement, additions and
alterations etc. During the evidence of defendants, plaintiff has taken
out the said application on the ground that now defendants are
intending to do construction work of permanent nature on the area in
front of and/or surrounding the suit premises which they have
encroached illegally. Resultantly, he wants to take inspection of the
suit premises. In pursuance of it, he had issued notice dated
03.09.2019 to defendants, whereby, he informed them to give
inspection of the suit premises to him on 22.09.2019 at 11 a.m.
However, they refused to give inspection of the suit premises to him
on the said day and did not allow him to enter in the suit premises.
Hence, he constrained to file the said application for giving direction
to them to give inspection of the suit premises to him and allow him
to take the same with his photographer and architect as well as to
take out necessary photographs and measurement of the suit
premises.
4. The defendants have opposed the said application by
filing their reply (Exh. 89) for the detail reasons mentioned therein.
-- 3 of 11 --
4 Rev. 84 of 2022
In it, they have stated that suit premises is in same condition, they
are denying ownership of plaintiff, consequently relationship as a
landlord and tenant between them, the area of the suit premises is
declared as a slum, the evidence on record goes to the root of issue.
They have further stated that for those reasons plaintiff cannot
inspect suit premises at this stage. They have further stated that just
to cause delay the plaintiff is taking out applications after
applications. Hence, they have prayed for its dismissal.
5. After considering said application, said reply thereon,
record of the original suit and on hearing learned counsel for both
the sides, the learned trial court has rejected the said application as
per impugned order.
6. Against it, plaintiff has preferred this revision petition by
raising several grounds in this revision petition, such as, the learned
trial court has not considered documents on record, facts and settled
principle of law. Resultantly, impugned order is erroneous. Hence,
the same needs to be set aside by allowing this revision petition.
7. On the basis of rival submissions of both the parties
following points arise for our consideration. We have given our
findings thereon for the reasons stated in subsequent paras.
Sr.No. Points Findings
1 Does the impugned order is erroneous? In the affirmative
2 Does interference of this court is
warranted in setting aside impugned
order? In the affirmative
-- 4 of 11 --
5 Rev. 84 of 2022
3 What order? This revision Petition
is allowed as per final
order.
REASONS
8. The learned counsel for plaintiff has argued that Section
28 of the Maharashtra Rent Control Act, 1999 (MRC Act) empowers
landlord i.e. plaintiff to take out such type of application at any stage.
He has further argued that plaintiff has taken out the said application
for ascertaining present condition of the suit premises. He has further
argued that for the said reason the said application has no concern
with the issue no. 6 which states about “Does the plaintiff prove that
defendants have encroached upon the area of 10 x 14 sq.ft.and thus
changed the identity of the suit premises”. He has further argued that
the said issue came to be framed on the basis of additions and
alterations made by defendants prior to the filing of the suit in the
suit premises. He has further argued that inspite of it the learned
trial court has wrongly observed in impugned judgment that if the
said application is allowed it will assist plaintiff to prove the said
issue no. 6, filing of the said application after more than one decade
smells of intention of plaintiff to collect evidence for proving the said
issue. He has further argued that in the said application plaintiff has
categorically stated that he intends to take inspection of the suit
premises for present condition of the suit premises, thus the same in
no way help plaintiff to prove the said issue no. 6. He has further
argued that as in view of the said Sec. 28 of M.R.C. Act plaintiff has a
right to take inspection of the suit premises, rejection of the said
application has caused serious prejudice to plaintiff and not to
-- 5 of 11 --
6 Rev. 84 of 2022
defendants. He has further argued that the said facts clearly states
that impugned order is erroneous. Hence he has prayed for setting it
aside by allowing this revision application.
9. For strengthening his submission he has relied upon two
case laws -
1. Kamlabai Laxman Mutraj vs Bherumal Verimal Haran
[2009(4) Bom.C.R. 453]. In the said case it is held that -
Landlord can take inspection of his property, there is
no reason to hold landlord can not take inspection
at any stage of proceedings. Requirement is of prior
notice. When landlord moved application for
appointment of commissioner for proper
measurements and inspection of premises, it just can
not be treated an application as contended under
Order 26, Rule 1 of Code. Court see no reason to
interfere with order. Orders are within frame work
of law.
2. Empeegee Portfolio Services Pvt. Ltd.vs Sharada Navinchandra
Shah [2009(1) Bom.C.R. 579]. In the said case it is held that -
“To inspect premises” covers a critical examination.
It cannot be a casual glance. It may be to determine
past and present condition of premises. Court see no
reason why landlord cannot be permitted to inspect
with a notice to tenant by taking an architect or
some other person with him. There was no case for
rejection of this request even under Order 26 of C.P.
C. or other provision.
10. Similarly, plaintiff has relied upon two documents filed
with list of documents (Exh. 20).
-- 6 of 11 --
7 Rev. 84 of 2022
11. The learned counsel for defendants has argued that the
area of the suit premises is declared as a slum. He has further argued
that there is no relationship of landlord and tenant between the
parties. He has further argued that by filing the said application
plaintiff intends to collect evidence. He has further argued that as per
settled principle of law court commissioner cannot be appointed for
collecting evidence. Hence, he has prayed for dismissal of the said
application.
12. For strengthening his submission he has relied upon few
case laws filed along with list of authorities (Exh. 19) -
1. Sanjay son of Namdeo Khandare vs Sahebrao Kachru Khandare
[LAWS(BOM) 2000 9 106]
2. Nalubai Narayan Shinde vs Gopinath Dagdu Shinde
[LAWS(BOM) 2010 12 14]
3. Dnyandeo Vithal Salke vs Dagdu Kadar Inamdar [LAWS(BOM)
2017 2 195]
4. Syed Mushtaque Ahmad vs Syed Ashique Ali Khan
[LAWS(BOM) 2011 7 53]
In all the said four cases it is observed that it is well settled law
that court commissioner cannot be appointed for collecting evidence.
13. Also, defendants have relied upon documents filed along
with list (Exh.21) with application (Exh. 22) and with list of
authorities (Exh. 19).
14. On the basis of rival submissions of both the parties,
documents placed on record and above stated case laws, now the
point crop up before us is whether there is a substance in the said
-- 7 of 11 --
8 Rev. 84 of 2022
case of plaintiff regarding he has statutory right to take inspection of
the suit premises in view of said provision of law. The same can be
answered effectively with the help of above stated points. Hence,
here we take an opportunity to discuss those points one by one.
AS TO POINT NO. 1 :-
15. Both the parties have filed on record order dated
16.04.2008 passed below application (Exh. 6) for interim reliefs, i.e.
for temporary injunction etc. and order dated 25.08.2008 below
application (Exh. 13) for framing preliminary issue in respect of
jurisdiction and maintainability of original suit on the ground that
there is no relationship of landlord and tenant between the parties
and the area of the suit premises is declared as slum. Both the said
orders of the learned trial court went unchallenged. Resultantly, the
said orders attain finality. In said order dated 16.04.2008 below
application (Exh. 6), the learned trial court has observed that prima
facie plaintiff proves his ownership over suit premises. In the said
order dated 25.08.2008 below application (Exh. 13) the learned trial
court has observed that the grounds regarding there is no
relationship of landlord and tenant in between plaintiff and
defendants, and, the suit premises falls in the slum area are mix
question of law and facts, thus the same needs consideration on
merits, in view of the same the said application came to be rejected.
In view of both the said orders of learned trial court, this court is of
the view that the submissions of defendants on those grounds needs
no consideration as the same needs to be decided on merit.
Resultantly, the documentary evidence in respect of it on record filed
-- 8 of 11 --
9 Rev. 84 of 2022
by defendants needs no consideration. Accordingly, the same are not
discussed in detail.
16. With regard to right of plaintiff to take inspection of the
suit premises by virtue of Sec. 28 of M.R.C. Act, 1999 is concerned, it
is necessary over here to reproduce the said provision of law.
Section 28 - Inspection of premises.
The landlord shall be entitled to inspect the premises let
or given on licence, at a reasonable time after giving
prior notice to the tenant, licensee or occupier.
17. The said provision of law states that landlord can take
inspection of his let out premises or given on licence. The only
requirement for the same is of prior notice to the tenant or licensee.
The said provision of law does not put any restriction to the said right
of landlord except that of prior notice to the tenant. Thus from the
same it can be said that landlord can take inspection of suit premises
at any stage of the proceeding. That’s why in Kamlabai’s case, cited
supra, it is observed that in view of said provision of law there is no
reason to hold that landlord cannot take inspection at any stage.
Also, in Empeegee’s case, cited supra, it is observed that as there is no
stage mentioned or contemplated in the said section 28, at any point
of time in the given facts and circumstances of the case, if the
landlord, wants to inspect his own premises, there is no reason not to
permit such landlord to inspect the premises, and therefore,
contention regarding as the matter is fixed for framing issue, the
landlord wants to collect the material for the purpose of his case
which amounts to collection of material are unacceptable.
-- 9 of 11 --
10 Rev. 84 of 2022
Undisputedly, the said application had been taken out by plaintiff
during evidence of defendants. But, in view of the said observation
no force is found in the submission of defendants as regards by filing
the said application plaintiff intends to collect evidence.
18. From the foregoing discussion and observations in
Kamlabai’s and Empeegee’s case, cited supra, it can be said that as
per said Sec. 28 landlord can inspect premises at any point of time
after issuing notice alone or with an architect or with such other
person. Resultantly, the said application needs to be allowed.
However, the learned trial court has rejected the said application as
per impugned order. Thus, the impugned order is erroneous.
Therefore, we answer point no.1 in the affirmative.
AS TO POINT NO. 2 :-
19. In view of answer to point no.1, the said application
needs to be allowed. But, the learned trial court has rejected it as per
impugned order. Thus, interference of this court is warranted in
setting aside impugned order. Therefore, we answer point no.2 in the
affirmative.
AS TO POINT NO. 3 :-
20. In view of answer to point nos. 1 and 2, there is a
substance in the case of plaintiff and grounds raised by him in this
revision petition. Thus, this revision petition needs to be allowed.
Hence, the order.
-- 10 of 11 --
11 Rev. 84 of 2022
ORDER
1. This revision petition is allowed.
2. Costs in main cause.
3. The order of rejection dated 02.08.2022 passed
below application (Exh. 87) for inspection of suit
premises filed by plaintiff is set aside.
4. Application (Exh. 87) for inspection of suit premises
is allowed.
5. The plaintiff and defendants are directed to fix a date
for taking inspection of the suit premises.
6. The defendants are directed to allow the plaintiff to
take inspection of the suit premises along with his
photographer and architect as well as to take out
necessary photographs and measurement of suit
premises.
7. Inform to the learned trial court, accordingly.
I agree,
sd/- sd/-
(R.N. Bansal) (A.S. Khadse)
Judge Additional Chief Judge
C. R. No. 31 C. R. No. 31
24.11.2023 24.11.2023
Dictated on : 24.11.2023
Transcribed on : 24.11.2023
Checked & signed on : 29.11.2023
/home/pa41/CR31/Nov-23/Revision/84-22-Rev-dt-21-11-23.odt bpk
-- 11 of 11 --