Allowed

Jaipal Namdeo Mallapur and Anr. v. M/S Ranjani Sunderrao Mallapur and Anr.

Bombay HC8 Jul 2014RPA/36/2013

Case brief

AI extract

What is this about?

The High Court allowed a review petition to recall an interim possession order directing defendants to provide a specific room to the plaintiff. Finding the plaintiff was not utilizing the premises and residing elsewhere, the court set aside the original order, directed the defendants to deposit Rs. 3,000 monthly, and remitted the matter to the trial judge for expedited disposal.

What did the court decide?

Recalled order dated 3 September 2012; set aside Trial Court order dated 28 August 2012; directed defendants to deposit Rs. 3,000 monthly; disposed of cross review petition.

Jaipal Namdeo Mallapur and Anr. Vs M/S Ranjani Sunderrao… — Landlord and Tenant | Bombay HC (2014)

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1 of 4 RPA.36.2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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REVIEW PETITION NO.36 OF 2013 IN

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APPEAL NO.531 OF 2012

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Jaipal Namdeo Mallapur and another versus

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Ms.Ranjani Sunderrao Mallapur and others

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Petitioners

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Respondents

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WITH REVIEW PETITION (L) NO.21 OF 2013 IN APPEAL NO.531 OF 2012

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Ms.Ranjani Sunderrao Mallapur and others versus

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Jaipal Namdeo Mallapur and another

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Petitioners

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Respondents

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Mr.Mehul Shah for Petitioners in RPA No.36 of 2013. Mr.I.a.Sayed for Petitioners in RPA (L) No.21 of 2013.

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CORAM : MOHIT S. SHAH, C.J. AND M.S.SONAK, J.

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DATE : 8 July 2014 PC :

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Review Petition No.36 of 2013 is filed for review of the order dated 3 September 2012 in Appeal (L) No.627 of 2012 against an interlocutory order in the suit filed by Respondent no.1 (Plaintiff). The Defendants in the suit are Review Petitioners in Review Petition No.36 of 2013, who are nephews of the Plaintiff.

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2 of 4 RPA.36.2013

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By an interim order, the learned Single Judge had directed the Defendants to give the Plaintiff possession of one room from the suit premises.

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At hearing of the appeal, the learned counsel for the Appellants/Defendants had indicated that they were ready to make available another premises for the Plaintiff and had accordingly conveyed three options to the Plaintiff. On 3 September 2012, the Plaintiff accepted the third option i.e. Room No.2, Ground Floor, Koyna Building, Chikhalwadi, Grant Road (West), Mumbai 400 007 which is a self contained flat with a kitchen, attached toilet and bath room. It was further agreed that while the Plaintiff would pay monthly maintenance for the same room to the extent of Rs.800/p.m; any amount in excess thereof shall be borne by the Appellants/ Defendants.

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When learned counsel for the Appellants/Defendants had submitted at the said hearing that the Plaintiff may not reside in the above premises, this Court had given liberty to the Appellants/Defendants to bring such fact to the notice of Trial Court at the time of trial. The arrangement was to continue during pendency of the suit.

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In Review Petition No.36 of 2013, the Review Petitioners (Defendants) have submitted that the Plaintiff is not residing in the above premises being Room No.2, Ground Floor, Koyna Building, Chikalwadi, Grant Road (West), Mumbai 400 007 and in support of

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3 of 4 RPA.36.2013

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that stand have relied upon the electricity bills indicating that electricity consumption in the said premises is NIL from September 2013 onwards. The learned counsel for the Review Petitioners submits that license fees including monthly maintenance charges for the said room have now gone up to Rs.13,500/- per month. Since, the Plaintiff is not residing in the said premises, the Defendants need not be burdened with payment of such heavy amounts by way of an interim order during pendency of the suit. The learned counsel for Review Petitioners/Defendants submits that in view of the above, the order dated 3 September 2012 may be recalled and the order dated 28 August 2012 of the learned Trial Judge in the Notice of Motion (L) No.1818 of 2012 may be set aside.

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The learned counsel for Respondent no.1 (Original Plaintiff) in Review Petition No.36 of 2014 is not in a position to dispute the documentary evidence being relied upon by the Review Petitioners indicating that the premises in question being Room No.2, Ground Floor, Koyna Building, Chikalwadi, Grant Road (West), Mumbai 400 007 is not being utilized by the Plaintiff. Moreover, as per certificate dated 5 October 2013 of the Tahsildar, Andheri, the Plaintiff is residing with her niece (sisters daughter) at Bakul Nivas, Lallubhia Park Road, Andheri (West), Mumbai 400 058. This certificate of the Tahsildar, Andheri is disputed by the Plaintiff.

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In the facts and circumstances of the case, we are not inclined to go into above factual aspect as to where the Plaintiff is residing but at the same time the fact remains that the Plaintiff is not making use

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4 of 4 RPA.36.2013

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of the premises which was made available to her under order dated 3 September 2012 in Appeal. On the other hand, the Review Petitioners in Review Petition No.36 of 2014 are required to bear the burden of paying license fees for the said premises.

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In the result, Review Petition No.36 of 2014 is allowed. The order dated 3 September 2012 in Appeal (L) No.627 of 2012 is recalled and the order of the learned Trial Judge dated 28 August 2012 in Notice of Motion (L) No.1818 of 2012 is set aside on condition that Defendant nos.1 and 2 shall deposit a sum of Rs.3,000/- per month with the Prothonotary and Senior Master of this Court. The deposit shall abide by outcome of the suit.

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However, in the facts and circumstances of the case and considering the fact that the Plaintiff is aged about 75 years, we request the learned Trial Judge to take up the suit itself emanating from Pauper Petition No.8 of 2012 for early hearing and dispose of the same as expeditiously as possible and preferably within three months.

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In view of the above, Review Petition (L) No.21 of 2013 filed by the Plaintiff does not survive and stands disposed of as such.

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(CHIEF JUSTICE)

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(M.S.SONAK, J.)

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MST

Jaipal Namdeo Mallapur and Anr. v. M/S Ranjani Sunderrao Mallapur and Anr.

Case brief

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Jaipal Namdeo Mallapur and Anr. v. M/S Ranjani Sunderrao Mallapur and Anr.

Case brief

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