Final Order 2

Order Details: Copy of Judgment
Pdf Text: CNR No. MHSCA300-1555-2022
Presented on : 16/12/2022
Registered on : 21/12/2022
Decided on : 31/12/2024
Duration : 2Y, 15D
IN THE COURT OF SMALL CAUSES AT MUMBAI
(APPELLATE BENCH)
(BANDRA BRANCH)
REVISION APPLICATION NO.125 OF 2022
IN
EXHIBIT NO. 11
IN
T. E. SUIT NO.115 of 2016
1. Mr. Sorab Noshir Pochkhanawala,
age 69 years, Occupation : Chartered Accountant,
having Address at 86, Braeside square, Markham,
Ontario L3R, 0A5, Canada.
2. Mr. Farhad Noshir Pochkhanawala
Aged 63 years, Occupation : Chartered Accountant,
having address At 111, Longwater chase,
Markham Ontario L3R, 4A9, Canada ..Applicants
[Ori. Plaintiffs]
V E R S U S
1. Messrs Orient Fashions Pvt. Limited,
A Company incorporated under the Companies Act,
Having address at Radia House, Rampart Row, Mumbai.
Contact No. NA
Email ID. NA
2. Nav Reshma Apartment CHS Limited,
A society registered under the Maharashtra
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Co- Operative Societies Act, 1960,
bearing No. BOM/ HSG/ 3558 of 1972
having registered office at Reshma Apartments,
Pali Hill, Bandra (West), Mumbai – 400 050.
3. Mr. Samir Narain Bhojwani
Age not known, Occupation business
Having address at GF2, Shailja Apartments,
Pali Hill Road, Bandra (W), Mumbai 400050 .. Respondents
(Original Defendants)
Appearance :
Pawar Nilam Santosh : Advocate for the applicants.
Respondent No.1 Ex parte.
Priti Ramani : Advocate for the Respondent No.2
Sachin Raul : Advocate for the Respondent No.3
Coram : A.S. Khadse
Additional Chief Judge,
And
R. N. Bansal, Judge,
Court Room No. 31
Date : 31.12.2024
JUDGMENT : (Per A.S. Khadse, Additional Chief Judge)
This revision petition has been preferred by the
applicants/original plaintiffs against order dated 30.11.2022 of
learned trial court below application (Exh. 11) for appointment of
Court Commissioner, whereby, the said application came to be
rejected.
2. Both the parties are hereinafter referred as per their
nomenclature in the original suit. The applicants are original
plaintiffs and respondents are original defendants.
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In brief, the facts of the case are as under :-
3. Admittedly, plaintiffs have filed original suit against
defendants (licensee) for their eviction from the suit property and
other reliefs on the grounds set out in the plaint, as per registered
lease deed dated 20.03.1965, initially defendant no.1 was holding
lease hold rights in suit property and after him defendant no.2 is
holding the same with the consent of plaintiffs, defendant no.2 had
given rights to develop building over the suit property to defendant
no.3.
4. According to plaintiffs, defendants have committed
various fraudulent and unlawful acts, whereby they have committed
several breaches of the terms and conditions of the said lease deed,
so as per notice issued by them to defendants, they have forfeited the
said lease. They have written to defendant no.2 for giving inspection
of suit property but it had given vague and evasive response. As
defendants are dealing with the suit property and raised construction
thereon, it is very much necessary to take inspection thereof. Hence,
a Court Commissioner needs to be appointed for the same. Therefore,
they have filed the said application and prayed for the same.
5. As original suit is proceeded further ex-parte against
defendant no.1, there is no reply from it.
6. The defendant no.2 opposed the said application by
filing its reply (Exh. 16) for the detail reasons mentioned therein. In
it, it has stated that plaintiffs have sent no letter to it for inspection of
suit property. It has further stated that there are 18 flats in suit
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property, some of them are occupied by elderly and ailing people and
some are by women during the day time. It has further stated that in
original suit there is no ground of additions and alteration, thus
inspection of suit premises is not needed. It has further stated that,
unless a notice is issued and the said members are given an
opportunity to arrange and sort their personal affairs, it is not
possible to let strangers into the house. It has further stated that, the
alleged construction stated by the plaintiffs was done in the year-
2000, accordingly the same cannot be a ground of inspection after 17
years. It has further stated that for those reason the said application
be dismissed with compensatory costs.
7. The defendant no.3 opposed the said application by
filing his reply (Exh.52). In it, he has stated that he was only assigned
with development of suit property as per the development
agreement, after completion of development of suit property in the
year-2004, he has no right, title and interest therein. He has further
stated that accordingly he has nothing to say to the said application
as no reliefs are claimed against him. He has further stated that for
those reasons the said application be dismissed with compensatory
costs.
8. After considering rival submissions of both the sides,
their learned advocates as well as record and settled principle of law,
the learned trial court has rejected the said application.
9. Against it, plaintiffs have preferred this revision petition
by raising several grounds in it, such as, the learned trial court has
not considered documents on record, facts and settled principle of
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law. Resultantly, impugned order is erroneous. Hence, the same needs
to be set aside by allowing this revision petition.
10. On the basis of rival submissions of both the parties
following points arises 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
3 What order? This revision petition
is allowed as per final
order.
R E A S O N S
11. The learned counsel for both the sides have reiterated
grounds raised in their respective pleadings as stated above. Hence,
to avoid repetition the same are not reproduced over here once
again.
12. In support of the said application, the learned counsel
for the plaintiffs have relied upon five case laws filed along with
judgments (Exh. 12) on inspection. The same are :-
1. Kisanlal M. Rathi Vs. Dinkar Y. Patil, 2003 (2) Bom C.
R.329 in the said case it is observed that, “the Court
has a discretion to order local investigation or not.
The object of local investigation is not so much to
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collect evidence which can be taken in Court but to
obtain evidence which from its peculiar nature can
only be had on the spot.”
2. Kalyan Santram Kawade and ors. Vs. Khanderao Alias
Khandu Ganpati Kawade and orts, [2015 (4) Mh L. J.
429] in the said case it is observed that, “in case
where parties are at dispute or not in agreement with
the map or plan, Court Commissioner can certainly be
appointed in order to prepare a map or plan in
respect of the suit property in order to assist the
Court.”
3. Suresh Manoharlal Jumani and anr Vs. Aasia
Management and Consultancy Pvt. Ltd. [2014 (1)
Bom. C.R. 88], in the said case it is observed that, “for
ascertaining the repairs required to be carried, the
landlord will have to inspect the premises. The
landlord wold not be an expert to know the extent of
repairs to be carried out. Naturally while making
inspection for the purpose of ascertaining the repairs
to be carried out, the landlord would be required to
take with him expert, such as, Architect etc. to know
the exact extent of the repairs to be carried out.”
4. Lalitprabha Krishnaji Ajgaokar and others Vs. Yunus
Khan and ors., [2016 DGLS (Bom) 896], in the said
case it is observed that, “the object of local
investigation is not so much to collect evidence which
can be taken in Court but to obtain evidence which
from its peculiar nature can only be had on the spot.”
5. Kamlabai L. Mutraj Vs. Bherumal V. Haran [2009 (4),
Bom. C.R. 453] in the said case it is observed 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
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measurements and inspection of premises, it just can
not be treated an application as contended under
Order 26, Rule 1 of Code.”
13. Both the parties are not disputing on the count that the
observation in those case laws are settled principle of law.
Accordingly, the same are guiding factors for us to decide the rival
submissions of both the sides. In the light of the same, if the above
submissions of both the parties, their learned counsel in the light of
their respective pleadings, and, documents on record and referred
therein are considered, the point now arises before us is whether
there is substance in the said case of plaintiffs? 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 :-
14. From the above say of defendant no.2 it appears that as
no notice for seeking inspection has been given by plaintiffs to it, they
are not entitled for the same. The another reason for the same is the
above stated persons are occupying their respective flats in the
building over suit property, so without giving an opportunity to them
to arrange and set out their personal affair the same cannot be given.
The further reason is that plaintiffs have sought for the inspection
after 17 years of a construction which was done in the year-2000.
The same are the reasons for it to dismiss the said application.
15. As per the said reply of defendant no.3, he has prayed
for dismissal of the said application on the grounds, viz, his role was
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restricted as he has to develop the suit property only which it has
completed in the year-2004, thereafter he has not right, title and
interest in the suit property, in the said application no relief is
claimed against him and thus he has to say nothing on the same
application.
16. After considering those grounds in their respective say it
appears that for those reasons defendant no.3 has nothing to say on
the said application and defendant no.2 opposed for the same due to
want of notice for seeking inspection from plaintiffs prior to filing the
said application. As per settled principle of law, filing of application
for seeking inspection of the said suit property by landlord itself is the
notice, accordingly, the said ground of defendant no.2 holds no water.
17. Admittedly, plaintiffs are owner of suit property. As per
Section 28 of Maharashtra Rent Control Act, 1999, plaintiffs, being
landlord entitled to inspect the suit property at any reasonable time
after giving prior notice. Though in a case in hand no notice has been
given by the plaintiffs prior to filing of the said application but the
filing of the said application itself amounts to notice for seeking the
same. Moreover, the registered lease dated 20.03.1965 also states
that plaintiffs are entitled for the same. In view thereof the said
application needs to be allowed. However, the learned trial court has
rejected it as per impugned judgment. Hence, impugned order is
erroneous order. Therefore, we answered point no.1 in the
affirmative.
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AS TO POINT NO.2 :
18. In view of answer to point no.1 the said application
needs to be allowed but learned trial court has rejected the same as
per impugned order. Hence, this is a fit case wherein inference of this
court is warranted for setting aside the impugned order. Therefore,
we answered point no.2 in the affirmative.
AS TO POINT NO.3.
19. In view of answer to point nos. 1 and 2, there is a
substance in the above stated case of the plaintiffs, submissions of
their learned counsel and grounds raised by them in this revision
application. As a result thereof, it needs to be allowed with cost.
Hence, the order :
O R D E R
1. This revision application is allowed with cost.
2. The order dated 30.11.2022 passed below application
(Exh.11) for appointment of court commissioner as prayed,
whereby, the said application is rejected, is hereby set aside.
3. The application (Exh.11) for appointment of court
commissioner as prayed is allowed.
4. Plaintiffs are directed to given in advance an intimation to
defendant no.2 about inspection of suit property through
commissioner to be accompanied by the representative,
Architect and photographer of the plaintiffs.
5. Both the parties are at liberty to decide who will be the
commissioner to be appointed for taking inspection of the
suit property.
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6. Plaintiffs have to born expenses of the commissioner.
7. Inform to the learned trial court accordingly.
I agree,
(R.N. Bansal) (A.S. Khadse)
Judge Additional Chief Judge
C. R. No. 31 C. R. No. 31
31.12.2024 31.12.2024
Dictated on : 31.12.2024
Transcribed on : 31.12.2024
Checked & signed on : 02.01.2025
/media/pa41/CP/31 Dec/C P RANE 31 December/Revision 125 of 2022.odt
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