Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1
MHSCA30014712022
Presented on: 23.11.2022
Registered on: 08.12.2022
Decided on: 20.09.2024
Duration Y M D
1 09 27
IN THE COURT OF SMALL CAUSES AT MUMBAI
[BANDRA BRANCH]
(Appellate Bench)
REVISION PETITION NO.121 OF 2023
IN
EXHIBIT NO. 20 OF 2022
IN
L. E & C SUIT NO.22/25 OF 2011
Shri Rajesh Dayalal Mulani
Aged about 45 years, Occ: Business,
Indian Inhabitant, presently having
Address at C/o. Om Motors, behind
Ganesh Niwas, Building Pai nagar,
J. S. Road, Borivali (West), ...Applicant/
Mumbai- 400 092. (Original Defendant )
V/s.
M/s. Pai & Company
A Partnership firm, registered under the
Indian Partnership Act, 1932, having their
Office at 301, Sita Niwas, 3rd floor, Pai
Nagar, J. S. Road, Borivali (West), ...Respondent
Mumbai- 400 092. (Original Plaintiff)
Shri Rajesh G. Choudhary, Advocate for applicant.
Shri Rupesh Shravan Karia, Advocate for respondent.
Coram :Smt. A. S.Khadse
Additional Chief Judge,
&
Shri. D. R. Mali, Judge
Court Room No. 31,
Date :20.09.2024
JUDGMENT: - (Per D. R. Mali, Judge)
1. This revision application has been preferred by the
-- 1 of 5 --
2
applicant/original defendant against order dated 23.09.2022 of learned
trial court below application (Exh.20) for seeking modification of order
dtd.17.03.2021 passed below Exhibit-16 in L. E & C Suit No.22/25 of
2011, whereby, the said application came to be rejected.
2. The applicant is original defendant and respondent is original
plaintiff.(Both the parties are hereinafter referred as per their
nomenclature in the original suit.)
The facts which gave rise to the present Revision can be
summarized as under: -
3. The plaintiff has filed L. E & C suit No.22/25 of 2011 for
recovery of possession of the suit premises. The defendant was not
paying the compensation/licence fee. Therefore, the plaintiff had filed
an application at Exhibit-16 for directing the defendant to deposit the
compensation/licence fee and it’s arrears. The said application was
allowed by the learned trial court on 17.03.2021. In that order, the
learned trial court has given an liberty to the defendant to pay the
arrears of compensation in four equal installments. Thereafter, the
defendant had filed an application for modification of that order, so that
the defendant can deposit the arrears of compensation/licence fee at
the rate of Rs.50,000/-p.m. That application at Exhibit-20 came to be
rejected by the learned trial court vide order dtd. 23.09.2022. This
order has been challenged by the defendant by filing this revision
application.
4. While contesting the application at Exhibit-20, the plaintiff
had filed reply and denied all the contentions. The plaintiff submitted
that there was no cogent reason for modification of the order passed by
the learned trial court. Plaintiff submitted that the defendant was
intentionally avoiding to pay the compensation. All other reasons given
-- 2 of 5 --
3
by the defendant in an application for modification of order were
denied by the plaintiff.
5. After considering the said application, say thereon and
documents on record as well as submissions of the learned advocates
for both the parties, the learned trial court has rejected the application
Exh.20 and refused to modify the order dated 23.09.2022. Being
dissatisfied with it, the defendant has preferred this revision application
on the ground that the impugned order is illegal and contrary to the
facts on record as well as law for abovesaid reasons. Thus, by raising
several grounds in this revision application, he has prayed for allowing
the same and, thereby, setting aside impugned order.
6. On the basis of rival contentions of both the sides and their
learned advocates, following points arises for our consideration. We
have recorded our findings thereon with reasons as under: -
Sr.No. Points Findings
1. Does the impugned order is illegal
and erroneous? “In the negative.”
2. Does the inference of this court is
warranted in setting aside the
impugned order?
“In the negative.”
3. What order? “This revision petition
is dismissed with
costs as per final
order.”
R E A S O N S
7. The learned advocate for defendant has argued that the
learned trial court vide order dtd. 17.03.2021 had directed the
defendant to pay the arrears of compensation/licence fee in four equal
installments. However, considering the Covid-19 Pandamic situation,
the defendant was unable to pay the amount as directed by the court.
-- 3 of 5 --
4
Therefore, considering the economic condition of the defendant, a
liberty may be granted to deposit the arrears of compensation/licence
fee at the rate of Rs.50,000/-per month.
8. The learned advocate for plaintiff has argued that the
defendant has unlawfully occupied the suit premises and he has not
paid the compensation/licence fee from 01.03.2009. Therefore, the
defendant cannot be permitted to deposit the amount at the rate of
Rs.50,000/- by modifying the order. He argued that there is no reason
to modify the order.
9. We perused the application, reply and the available
documents. Admittedly, vide order dtd. 17.03.2021 the defendant was
directed to pay arrears of compensation/licence fee for a period of
01.03.2009 onwards. A Revision Application No.66 of 2023 has been
preferred by the defendant before this court challenging the order dated
17.03.2021 and it has been heard and dismissed today itself. Therefore,
the order dtd.17.03.2021 has attained finality. Now, whether the court
has power to modify the order as prayed, is a question before us. Once
the order is passed, then it cannot be modified save and except the
arithmetical and typographical errors. As per the order dtd.17.03.2021,
the learned trial court in it’s discretion has granted liberty to pay the
arrears of compensation/licence fee in four equal installments. Now,
again the defendant is praying to grant a liberty to deposit the arrears of
compensation/licence fee at the rate of Rs.50,000/-. The economic
condition of the defendant is not a ground to modify the order. The
defendant is under obligation to pay the amount as per the leave and
licence agreement and as observed by the learned trial court in order
dtd.17.03.2021. There is no change in any circumstances after passing
the order dated 17.03.2021. Therefore, we do not find any reason to
-- 4 of 5 --
5
modify the order dtd. 17.03.2021. Hence, the order dtd.23.09.2022
passed by the learned trial court is just, legal and proper. Hence, we
answer point no.1 in the negative.
As to point No. 2:
10. In view of our answer to point No.1, we come to the
conclusion that the learned trial court has rightly rejected the
application Exhibit-20 by considering legal and factual aspect. Thus,
interference of this court is not warranted in setting aside impugned
order. Therefore, we answer point No.2 in the negative.
As to point No. 3:
11. In view of our answers to point Nos. 1 & 2, there is no
substance in the grounds raised in this revision petition. Therefore, we
proceed to pass following order.
O R D E R
1) The Revision Petition is dismissed with costs.
2) Inform to the learned trial court, accordingly.
I Agree,
(A.S. Khadse) (D. R. Mali)
Addl. Chief Judge Judge,
C. R. No. 31 C. R. No. 31
Court of Small Causes,(B.B) Court of Small Causes,(B.B)
20.09.2024 20.09.2024
Judgment dictated on : 19.09.2024
Judgment transcribed on : 20.09.2024
Judgment checked & signed on : 20.09.2024
/home/pa31/VARSHA/C. R. No.31/SEPTEMBER-2024/REVISION/121-2022 Revision.odt
-- 5 of 5 --