Allowed

Smt. Usha Prabhakar Wavikar and Ors. v. Shri. Chhogmal Lavji Mehta and Ors.

Bombay HC4 Sept 2013WP/5461/2013

Case brief

AI extract

What is this about?

Petitioners challenged the Appellate Court's dismissal of their application under Section 14 to carry out repairs. The Court set aside the impugned order and permitted the Petitioners to execute water-proofing and plastering works to prevent leakage.

What did the court decide?

Quashed impugned order; permitted Petitioners to complete water-proofing and plastering works by 31-10-2013.

Smt. Usha Prabhakar Wavikar and Ors. Vs Shri. Chhogmal… — Landlord and Tenant | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5461 OF 2013

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Usha Prabhakar Wavikar & Ors. versus Chhogmal Lavji Mehta & Ors.

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: Petitioners

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: Respondents

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Mr. Ravindra Deoghar for the Petitioners Mr. P. S. Dani for the Respondent Nos.1 & 2

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CORAM:- R. G. KETKAR, J DATED :- 4^th SEPTEMBER, 2013.

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P.C.

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1 Heard Mr. Deoghare, learned Counsel for the Petitioner and Mr.

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Dani, learned counsel for the Respondent Nos.1 & 2, at length.

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2 Rule. The Learned Counsel for the Respondents waives service. At

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the request and by consent of the Learned Counsel appearing for the parties rule is made returnable forthwith and the Petition is taken up for final hearing.

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2 By this Petition filed under Article 227 of the Constitution of India the original Defendants have challenged the Judgment and order dated 6-2-2013 passed by the Appellate Bench of Small Causes Court, Bombay, Misc Appeal No.65 of 2012. By that order the Appellate Court allowed the

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appeal preferred by the original Plaintiffs and quashed and set aside the Judgment and Order dated 17-7-2012 passed by the Trial Court in Exhibit

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27 in RAE/R Suit No.570/1059 of 2010. The Appellate Court dismissed the application made by the Petitioners. The Petitioners made application at Exhibit 27 under Section 14 of the Maharashtra Rent Control Act, 1999 (for short the “Act”) for issuing directions to the Plaintiffs to carry out certain repair works. The Respondents filed their reply Exhibit 42. After hearing both the sides by order dated 17-7-2012, the Trial Court allowed the application and directed the Respondents to make the repairs of item Nos. (i) to (v) as stated in the application forthwith at their own costs. Item Nos.(i) to (v) are to the following effect:

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(i) Complete water proofing of the terrace above 2^nd floor above flat No.6 so as to prevent heavy leakage of water coming inside the flat No.6 ceiling;

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(ii) Inside plastering of the ceiling inside walls in the hall, kitchen and bedroom, so as to stop water seeping inside.

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(iii) Repairs of the broken wooden doors, windows including hinges and other parts

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(iv) Start and restore the direct municipal water supply in kitchen sink, wash basin, bathroom and W.C. Which was stopped.

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(v) any other type of work which may be necessary and required to be

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done so that no leakage would taken place and to prevent other disturbing factors.

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3 Aggrieved by the decision the Respondents preferred an Appeal before the Appellate Bench of Small Causes Court. By the impugned Judgment and order dated 6-2-2013 the Appellate Court allowed the Appeal against which the original Defendants have instituted this Petition.

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4 In support of this Petition Mr. Deoghare invited my attention to the notice dated 29-3-2011 addressed on behalf of the Petitioners to the Respondents calling upon them to immediately undertake the repair work as specified therein. He invited my attention to the ground No.(S) raised in the Petition and submitted that the said notice was refused by the Respondents. Mr. Deoghare submitted that notice dated 29-3-2011 was issued under Section 24 of the Act and the same was refused by the Defendants. However, the Appellate Court proceeded on the premise that in terms of Section 14 of the Act the defendants did not issue notice to the Plaintiffs before filing application at exhibit 27. Mr. Deoghare invited my attention to the report of the Court Commissioner and the photographs taken by the Court commissioner. Mr. Deoghare therefore submitted that the order passed by the Trial Court permitting the Petitioners to carry out the repair works in respect of item Nos. (i) to (v) may be restored by setting aside the impugned order.

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5 Mr. Dani, supported the impugned order. He invited my attention to

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paragraph 5 of the reply filed by the Petitioners herein to the application filed by the Respondents. The Respondents filed an application for injunction restraining the Petitioners herein from carrying out additions and alterations. While replying that application in paragraph 5 the Petitioner asserted as under:

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“5. Under the circumstances the defendants have got

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no any other alternative but to get the said damaging and dilapidating conditions of the suit premises, repaired on their own at their own costs to save themselves from leakages etc. The following among other things were the defects and damage developed in the suit premises which necessitated to get the same urgently repaired otherwise the health, life and safety of the defendants was in danger.”

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He submitted that since the Petitioners have already carried out the requisite repairs, no interference is called for in the impugned order.

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6 With the assistance of the Learned Counsel for the parties I have gone through the material on record in particular I have perused report made by the Court Commissioner as also the photographs taken during the course of the commission work by the court commissioner. Perusal of the

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photographs clearly reveals that there is serious water leakage problem in the suit flat. It is not disputed that immediately above the suit flat there is a terrace. The Appellate Court wrongly held that the Petitioners did not issue notice before filing application at exhibit 27. The said finding is factually incorrect and contrary to the record. The Petitioners issued notice dated 29-3-2011 to the respondents. Respondents refused to accept that notice In this circumstances, after considering the report of the court commissioner as also the photographs taken by the court commissioner, I am satisfied that the case is made out by the Petitioners for permitting them to carry out repairs in respect of the following items :

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(I) complete water proofing of the terrace 2^nd floor above the suit flat so as to prevent heavy leakage of water coming inside the flat No.6 from ceiling. (ii) Inside plastering of the ceiling inside walls in the hall, kitchen and bedroom, so as to stop water seeping inside.

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Mr. Deoghare submits that the Petitioners will carry out the repairs at their expenses on or before 31-10-2013. The learned Counsel for the parties further submit that this arrangement may be recorded as being made without prejudice to the rights and contentions of the parties in the pending proceeding.

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7 In view of the above the Petition is disposed of in the following

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terms:

(i) the impugned order passed by the Appellate court is quashed and set aside and the Petitioners are permitted to carry out (i) the complete water proofing of the terrace 2^nd floor above the suit flat so as to prevent heavy leakage of water coming inside the flat No.6 from ceiling and (ii) inside plastering of the ceiling inside walls in the hall, kitchen and bedroom, so as to stop water seeping inside.

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(ii) Carrying out of the repair works is without prejudice to the rights and contentions of the parties in the pending proceedings and the same would be completed on or before 31-20-2013.

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8 Rule is made absolute in the aforesaid terms with no order as to costs.

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9 Certified copy expedited.

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(R. G. KETKAR, J)

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Smt. Usha Prabhakar Wavikar and Ors. v. Shri. Chhogmal Lavji Mehta and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Usha Prabhakar Wavikar and Ors. v. Shri. Chhogmal Lavji Mehta and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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