1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8909 OF 2009 Quiteria Rodrigues and another Petitioners versus Mrs.Mathilda Miranda Respondent P.N.Karlekar for petitioners. J.M.D'Silva for respondent. CORAM : A.S.OKA, J. DATE : 15th February 2010 PC :- 1. Heard learned counsel for the parties. Considering the narrow controversy involved in the petition, the same is taken up for final hearing. The petitioners are the original defendants and the respondent is the original plaintiff. The respondent has filed a suit for eviction against the petitioners in respect of suit premises which is a room admeasuring 10x22 feet in House No.52, situated at Vakola Village, Santacruz (East). Mumbai 400 055. The suit filed by the respondent was dismissed and an appeal against the decree of dismissal is pending before the Appellate Bench of the Court of Small Causes. 2 2. During pendency of the suit, an application was made by the petitioners before the Trial Court seeking restoration of water supply and facility of W.C.. The said application was made invoking section 24 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "said Act"). An order was passed by the Court of Small Causes on 29th September 2000 by which the respondent was directed to restore the water supply and the facility of W.C. to the petitioner. An application was made by the respondent for setting aside the said order which came to be dismissed by the Trial Court. The predecessor of the petitioners made an application under section 24(3) of the said Act praying for penalizing the respondent on account of non compliance with order dated 29th September 2000. The said application was allowed by the learned Trial Judge. Thereafter, another order was passed by the Trial Court on 8th July 2002 directing the respondent to restore the W.C. and water supply facilities to the suit premises. 3. In the pending appeal, the petitioners made an application under Rule 11 of Order XXXIX of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") for dismissal of the appeal on the ground of non compliance with the earlier orders passed by the Trial Court and especially the order dated 14th March 2002. The 3 appeal bench of the Court of Small Causes has rejected the said application by the impugned order. 4. Considering the nature of dispute between the parties, this Court passed an order on 28th January 2010 directing that an officer of this Court be appointed as a Court Commissioner to visit the suit premises and to submit a report as regards availability of facilities of W.C. and water supply. Accordingly, one Mr.P.Y.Mandavkar was appointed as a Court Commissioner. He has submitted report dated 6th February 2010. In the report the learned Commissioner has observed that the facility of W.C. is available to the petitioners. He has stated in the report that there is a separate W.C. constructed for the suit premises. He has described the location of the W.C.. He has recorded that there is one water tap which is for common use. The Commissioner has further noted that there is a water tap inside the suit premises but water supply is not available through the said water tap. The Commissioner has noted that regular municipal time for water supply is between 4.00 a.m. to 6.00 a.m. and, therefore, he could not ascertain whether water supply is available through the water tap in the suit premises. The report of the Court Commissioner indicates that the facility of W.C. is available to the petitioners. Today, the respondent has tendered an affidavit dated 11th February 2010. In the said affidavit various contentions have been raised on merits of 4 the petition. In paragraph 7 of the said affidavit, the respondent has stated thus :- "7. I without prejudice hereby give once again a solemn Undertaking to this Hon'ble Court that I will not obstruct the common W.C. and water facility available for the suit premises since the inception of the tenancy which is outside the suit premises as mentioned in the Report dated 5th February 2010, the learned Court Commissioner appointed by this Hon'ble Court." The undertaking given by the respondent deserves to be accepted. As far as the allegation of the non-availability of facility of W.C. is concerned, the acceptance of undertaking will sufficiently protect the petitioners. If the respondent commits any breach of the undertaking, the remedies of the petitioners are always open. 5. As far as water supply is concerned, there is a water tap available in the suit premises. But according to the case of the petitioners, the water tap is of no use as there is no supply through the said water tap. The Commissioner's report notes that there is a common water tap available to the petitioners apart from the water tap in the suit premises. The petitioners can always apply for grant of a separate water connection to the suit premises. It is for the concerned local authority to consider the application and to grant water connection to the suit premises, if it is permissible in accordance with the relevant Rules. Even if the petitioners make an 5 application for grant of a separate water connection to the suit premises and if such water connection is granted, it is obvious that no equity will be created in favour of the petitioners and the merits of the pending appeal preferred by the respondent will not be affected by the grant of such water supply. In case the local authority requires a consent in writing of the respondent in support of the application for grant of water supply, the respondent shall grant consent in writing without prejudice to her rights and contentions in the pending appeal. Grant of such consent will not affect the merits of pending appeal inasmuch as the consent granted by the respondent will be without prejudice to her rights and contentions in the pending appeal. 6. In view of what is stated above, at this stage it is not necessary to pass a drastic order of dismissing the appeal preferred by the respondent. 7. Hence, the petition is disposed of by passing following order:- A) The undertaking of the respondent incorporated in paragraph 7 of the affidavit dated 11th February 2010 is accepted; B) In the event the respondent commits any breach of the said undertaking, it will be open for the petitioners to file appropriate 6 proceedings in that behalf; C) It will be open for the petitioners to apply to the concerned local authority for grant of a separate water connection to the suit premises. If consent of the respondent is required in support of such application, the respondent is directed to give consent in writing without prejudice to her rights and contentions in the pending appeal; D) Consent in writing, if any, given by the respondent for grant of water connection to the petitioners will not affect the merits of the pending appeal as consent granted by the respondent will be naturally without prejudice to her rights and contentions. If separate water supply is granted to the petitioners, it is obvious that the same will not create any equity in favour of the petitioners and the same will be subject to the final outcome of the pending appeal; E) The writ petition is disposed of in above terms; F) Hearing of the appeal is expedited. (A.S.OKA, J.)