Interim Order 4

Order Details: Order on Exhibit
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CNR No. MHSCA-30014142022
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
Order Below Exhibit - 21
In
R. A. E. & R. Suit No. 580 of 2022
1. Shri Kanhaiyalal Jitanprasad Tiwari and Ors. ... Plaintiffs.
V/s.
1. Shri Dinkar Dwarikalal Mishra and Ors. ... Defendants.
Appearance:-
Ld. Advocate for the plaintiffs : Mr. D. R. Pandey.
Ld. Advocate for the defendant Nos. 1 & 2 : Mr. S. K. Shinde.
Coram :
Date :
R. R. Kale,
The Then Judge,
C.R. No. 35 (B.B.)
08/01/2025.
ORAL ORDER:-
(As per Office Order No. 183 of 2024 dated 21/12/2024 and Circular
No. 3 of 2025 dated 04/01/2025.)
Present application is taken out by the plaintiffs to direct
the defendants to give inspection of the suit premises to them along-
with Architect and Photographer and to carry out measurements in it.
2. In brief, it is the contention of the plaintiffs in the
application that, they have filed present suit for eviction on the grounds
mentioned in the plaint. The plaintiffs are the owners of the suit chawl
wherein the suit premises is situated. Before filing of the present suit,
the plaintiffs wanted to take the inspection of the suit premises to see
the exact nature of the internal changes made by the defendants.
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Therefore, they requested to the defendants so many times for
inspection of the suit premises. However, they refused to allow the
plaintiffs to take inspection of the suit premises. They have deliberately
not given the said permission.
3. The plaintiffs further submit in their application that, as per
provision of Section 28 of the Maharashtra Rent Control Act, 1999 (for
short ‘the Rent Act’), as the owners and landlords, the plaintiffs are
entitled to take the inspection of the suit premises from inside and
outside with the help of Architect/Commissioner and photograph and
also the measurements of the said premises. Therefore, they may kindly
be allowed to do so. If application is not allowed, serious prejudice
would be caused to the plaintiffs. On the contrary, if application is
allowed, no prejudice would be caused to the defendants and hence, it
be allowed. Contending all these grounds, the plaintiffs have prayed for
grant of the application.
4. On the contrary, the defendant Nos. 1 and 2 have strongly
resisted the present application by filing detailed reply at Exh. 23 and
additional reply at Exh. 29. The defendant Nos. 1 and 2 in brief in reply
submit that, present application is not maintainable as it is lacking
substantive grounds. The plaintiffs have mentioned false ground of
carrying out additions and alterations in the suit premises. It is
pertinent to note that, the issue about the existence of relationship of
landlord and tenant between the plaintiffs and defendants is yet to be
adjudicated by this Court. Therefore, the plaintiffs may not be permitted
for the inspection of the suit premises. Hence, the application be
rejected with cost. Contending all these grounds, the defendant Nos. 1
and 2 have urged for dismissal of the application with cost.
5. The plaintiffs have filed their rejoinder at Exh. 30 to the
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contentions of the defendant Nos. 1 and 2 made in the reply vide
Exh. 23. The plaintiffs have denied their contentions and prayed for
grant of the present application.
6. From the contents of the application and say filed thereon,
following points arise for my determination. I have given my findings
thereon for the reasons stated as under : -
Sr. nos. Points Findings
1. Whether application is liable to be
allowed?
... Yes.
2. What order ? ...Application
stands allowed.
: REASONS :
AS to Point Nos. 1 and 2:
7. Heard the Ld. Advocates on behalf of the parties at length. I
have gone through the written argument filed by the defendant Nos. 1
and 2 at Exh. 26 and the copies of the documents annexed to it. They
have advanced their arguments as per their respective contentions.
Perused the record and Roznama. I have gone through the copies of
documents filed by the parties in support of their respective
contentions.
8. I have gone through the plaint and the written statement
filed by the defendant Nos. 1 and 2 at Exh. 13. I have also gone through
the Issues dated 25/07/2023 and the additional Issue dated
01/02/2024 framed below Exh. 15 . It is the case of the plaintiffs that,
the defendant Nos. 1 and 2 are their tenants in respect of the suit
premises and in arrears of rent. It is further case of the plaintiffs that,
the defendant Nos. 1 and 2 have not been used the suit premises
without reasonable cause for the purpose for which it was let out for a
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continuous period of six months immediately preceding the date of the
filing of the suit; they have made additions and alterations of
permanent nature in the suit premises and have sublet the said premises
to the defendant No. 3. It is also their further case that, the suit
premises is reasonably and bonafide required by them and their family
members for the residential purpose. It appears that, the plaintiffs have
asked for reliefs of eviction, recovery of possession of the suit premises,
arrears of rent and inquiry into mesne profit under Order XX Rule 12 of
the Code of Civil Procedure, 1908.
9. Present application is filed under Section 28 of the Rent Act
and therefore, the said provision needs to be reproduced here:
“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.”
10. Every landlord has a statutory right to inspect the premises,
which has been recognized under Section 28 of the Rent Act. It states
that, 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. It means that, the landlord is having right to
inspect his property as and when required by him with prior notice to
the tenant, licensee or occupier.
11. The provision of Order XXVI Rule 9 Civil Procedure Code
recognized the right to appoint the commissioner to make legal
investigation. It reads as - “In any suit in which the Court deems a local
investigation to be requisite or proper for the purpose of elucidating any
matter in dispute, or of ascertaining the market-value of any property,
or the amount of any Mesne profits or damages or annual net profits,
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the Court may issue a commission to such person as it thinks fit
directing him to make such investigation and to report thereon to the
Court.” It means that, as and when, the court requires a local
investigation of the suit premises for the purposes stated in the
provision, the court commissioner can be appointed.
12. Section 28 of the Rent Act has very limited scope. For
inspection of the premises, landlord must give prior notice, must adhere
to the stipulated period given in notice ensuring that, the occupants are
adequately informed about the inspection. There must be
reasonableness in inspection of the premises. Landlord is expected to
act in good faith. The court must emphasize that, the inspection should
not be unduly disrupt the tenants peaceful enjoyment of the premises.
13. In the case of Robert Sylvester Mendosa Vs. Shabnam Anwarali
Batliwala And Anr. W.P. No. 14730 of 2022, an application was filed by
the landlord directing the petitioner to permit him to take inspection of
the suit premises along with their architect and was specifically
mentioned that he does not want to visit the suit premises with an
architect without the order of the Court to avoid unnecessary police
complaint and allegations on him. As the suit was pending before the
trial court, hence, respondents had not given notice as mentioned in
Section 28 of the Rent Act, but had filed an application before the
Court. It was held that as the landlord has a right to take inspection of
the suit premises and his architect can also visit with him to take
measurement. If the architect takes measurement of the suit premises,
the tenant has a right to cross examine the said witness after filing the
evidence of the said witness.”
14. In the case in hand, one of the grounds of eviction is
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additions and alterations of permanent nature carried out by the
defendant Nos. 1 and 2 without consent and permission of the
plaintiffs. In the present suit, with due respect to above observation,
though prior notice is not issued to the defendants, the present
application is itself a notice to them. They have barely denied the
contentions of the plaintiffs made in the application. They have not
produced any material on record to show that, the intention of the
plaintiffs for filing the application is only to disrupt the peaceful
enjoyment of the defendants in the suit premises. Moreover, the
defendants are having an opportunity to cross examine the court
commissioner/Architect if appointed at relevant stage of the
proceedings. Therefore, no prejudice would be caused to any of the
defendants, if the Court Commissioner/Architect is appointed. On the
contrary, it would assist the Court for proper and final adjudication of
the present suit as one of the grounds for eviction is additions and
alterations made in the suit premises. Hence, the plaintiffs are entitled
for the relief of giving direction to the defendants for inspection of the
suit premises with the help of Architect/Court Commissioner and
photographer. They are also allowed to take measurements of the suit
premises and the photographs of it from inside and outside with the
help of Architect/Court Commissioner and photographer. Therefore, in
view of above all discussion, I answer Point No. 1 in affirmative and in
answer to Point No. 2, I proceed to pass the following order :-
: ORDER :
1. Application vide Exh. 21 stands allowed.
2. The Court Commissioner/Architect is appointed to visit and
inspect the suit premises.
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3. The Court Commissioner/Architect is directed to visit and
inspect the suit premises and to take the photographs of
the suit premises from inside and outside with the help of
photographers and carry out measurements of the suit
premises.
4. The plaintiffs shall deposit the commission fees/charges of
Rs. 15,000/-( Fifteen thousand rupees only) tentatively
towards the commission work within 15 days from the date
of order.
5. The Court Commissioner/Architect shall issue notices to
respective Ld. advocates of the parties and the parties
before visiting and inspecting the suit premises.
6. The Court Commissioner/Architect shall submit his report
as per the direction in respect of the suit premises within
three months from the date of receipt of Writ of
Commission.
7. Issue Writ of Commission accordingly.
8. Both the parties are hereby directed to suggest the name of
Court Commissioner/Architect as per panel list till next
date.
(Dictated and pronounced in Open Court.)
(R. R. Kale)
Date : 08/01/2025. The Then Judge,
C.R. No. 35 (B.B.)
Order dictated on computer : 08/01/2025
Order checked & signed on : 08/01/2025
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