Dismissed

Smt. Gayatridevi Bhajanlal Kedia v. Smt. Laxmidevi Jagmohan Bagarka

Bombay HC5 Sept 2013CRA/601/2012

Case brief

AI extract

What is this about?

The high court dismissed civil revision applications challenging an order that dismissed a suit for eviction. The trial court had rejected a prayer to dismiss the suit because the plaintiff could not inspect the premises internally to determine repairs mandated by the municipality, which the defendant refused to allow. The high court held no case existed for invoking CPC Section 115.

What did the court decide?

Civil Revision Applications, Civil Application No. 902/2012, and Civil Application No. 22/2013 are dismissed; pending applications disposed of.

Smt. Gayatridevi Bhajanlal Kedia Vs Smt. Laxmidevi… — Property and Title | Bombay HC (2013)

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1 / 6 CRA /570/2012g

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Tapadia RR/B.7

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO. 570 OF 2012 WITH

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CIVIL REVISION APPLICATION NO. 601 OF 2012 WITH CIVIL REVISION APPLICATION NO. 602 OF 2012 WITH CIVIL REVISION APPLICATION NO. 603 OF 2012 AND CIVIL APPLICATION NO. 902 OF 2012 AND CIVIL APPLICATION NO. 22 OF 2013

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Gayatridevi Bhajanlal Kedia

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..Applicant

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Laxmidevi Jagmohan Bagarka

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.. Respondent

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Ms. B. Sharda, Advocate for the Applicant. Mr.S.S.Rai, Advocate for the Respondent.

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CORAM : R.G.KETKAR,J. RESERVED ON: 02/09/2013 PRONOUNCED ON : 05/09/2013

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ORDER :

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Heard Ms. B. Sharda, learned counsel for the applicant and Mr. S.S.Rai, learned counsel for the respondent in all Civil Revision Applications at length.

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By these Applications under section 115 of the Code of Civil Procedure, 1908, (for short, 'C.P.C.'), the original defendant has challenged the Judgment and order dated 9.3.2012 passed by the Appellate Bench of Small Causes Court at Mumbai in Review Application. By that order, the Appellate Bench partly allowed the Review Application and made the necessary corrections in the

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2 / 6 CRA /570/2012g

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order dated 4.1.2010 in respect of dates of letter/report. The prayer pertaining to setting aside the Judgment and order dated 29.1.2009 below Exhibit-68 of 2008 was rejected. Since common questions of law and facts arise in all these Applications, the same can be conveniently disposed of by this order. 3. The respondent, hereinafter referred to as 'plaintiff', has instituted suit, being R.A.E.Suit No.230/584 of 1995 against the present applicant, hereinafter referred to as 'defendant', on various grounds, as more particularly set out in the Plaint. Pending the suit, the defendant took out Interim Notice No.882 of 2006 for directing the plaintiff to carry out repairs. By the Judgment and order dated 11.12.2007, the learned trial Judge made absolute the said notice and directed the plaintiff to carry out the urgent repairs to the suit premises as per the directions issued by the Mumbai Municipal corporation (for short, 'Corporation') vide their notice dated 22.2.2005 issued to the plaintiff. It is the case of the defendant that the plaintiff has failed and neglected to comply the said order. The defendant, therefore, filed application under Order 39, Rule 11 of C.P.C. for dismissal of the suit. The said application was resisted by the plaintiff. By order dated 29.1.2009, the learned trial Judge rejected that application. Aggrieved by that order, the defendant preferred Revision Application before the Appellate Bench of

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Court of Small Causes. By order dated 4.1.2010 the Appellate Court dismissed the Revision Application. The defendant, thereafter, filed application for review of the said order which was rejected by the impugned order on 9.3.2012 subject to certain corrections in the order dated 4.1.2010. It is against that order the present Applications are instituted.

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In support of these Applications, Ms. Sharda reiterated the submissions that were made before the Courts below. She submitted that the plaintiff, in collusion with the officials of the Corporation and the Architect, has forged documents and because of these forged documents, the trial Court has passed orders rejecting applications at Exhibits 51,55,62 and 64 as also Appeal Nos 55 of 2009, 61 of 2009 as also Revision Nos 35 of 2009 and 37 of 2009. She submitted that till date the plaintiff has not complied the order dated 11.12.2007 and has not carried out the repairs. The applicant is a senior citizen and solely with a view to harassing her, the plaintiff has not carried out the necessary repairs. On the other hand, Mr Rai has supported the impugned order.

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I have considered the rival submissions made by the learned counsel appearing for the parties. I have also perused the material on record. It is not in dispute that the plaintiff has instituted the suit against the defendant for eviction. It is also not

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in dispute that during the pendency of the suit, the defendant took out Interim Notice for directing the plaintiff to carry out the repairs. The said notice was made absolute on 11.12.2007 and appropriate directions were issued to the plaintiff for carrying out urgent repairs as per the directions issued by the corporation vide their notice dated 22.2.2005. The plaintiff has instituted the suit on the ground of defendant carrying out permanent alterations. It is the case of the plaintiff that even after institution of the suit the defendant has carried out several changes and alterations of permanent nature in the suit premises inspite of the order of injunction against her. The structural engineer engaged by the plaintiff inspected the flat from outside and informed the same to the corporation vide letter dated 7.1.2008 and requested for joint inspection of the suit premises for the purpose of ascertaining the urgent repairs to be carried out. Ms Sharda submitted that the Court has not permitted the plaintiff to carry out joint inspection from inside of the suit premises and only with a view to not complying the order dated 11.2.2007 the plaintiff has come out with the case of joint inspection of the suit flat.

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As noted earlier, the Corporation has issued notice under section 354 of the Mumbai Municipal Corporation Act, 1888 on 22.2.2005 to the plaintiff for carrying out the work specified

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5 / 6 CRA /570/2012g

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therein. By that notice, the Corporation called upon the plaintiff to carry out repairs under supervision of a licensed structural engineer under intimation to its office. As per the notice issued by the Corporation, the plaintiff appointed Structural Engineer M/s Mehta & Associates who had prepared a report dated 7.1.2008 and submitted to the Corporation on 8.1.2008. The Appellate Court observed that when specific direction was given by the Corporation to carry out the work under intimation to it, it is incumbent upon the structure engineer to intimate the Corporation about the repair work required to be carried out in the suit premises. It was further observed that unless the flat was inspected from inside, the structural engineer was not expected to carry out his work. Apart from that, even the Corporation has issued notice to the defendant for joint inspection of the property. The defendant took out notice praying for injunction restraining the plaintiff and officials of the Corporation from taking joint inspection of the suit premises. The Appellate Court, therefore, observed that the defendant is not willing for joint inspect of the suit premises from inside. Unless the suit premises are inspected from inside it would not be possible for the plaintiff to comply the order dated 11.12.2007. The Appellate Court therefore dismissed the proceedings taken out by the defendant under Order 39, Rule 11 for dismissal of the suit.

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Ms. Sharda submitted that the plaintiff has produced the forged documents which have been impounded by the trial Court. On the basis of the forged documents, the plaintiff has succeeded in obtaining orders in his favour. The Appellate Court has considered these submissions and observed that the documents which the defendant alleges to have been forged, were not before the trial Court while passing the order. Even the Appellate Court has not considered those documents while passing the order dated 4.1.2010. If at all the defendant is aggrieved by any order on the ground that it was based on forged documents, the said order can be assailed in an appropriate proceedings and not in the Review Application. In other words, remedy of the defendant to challenge those orders on the ground of the plaintiff producing the forged documents, was expressly kept open by the Appellate Court. In these circumstances, it is not possible to interfere with the impugned order passed by the Appellate Court.

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No case is made out for invocation of powers under section 115 of the C.P.C. In the result, these Applications fail and the same are dismissed. In view of dismissal of the Applications, all pending Civil Applications do not survive and the same are accordingly disposed of.

Smt. Gayatridevi Bhajanlal Kedia v. Smt. Laxmidevi Jagmohan Bagarka

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Smt. Gayatridevi Bhajanlal Kedia v. Smt. Laxmidevi Jagmohan Bagarka

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