skt/- 1 41.wp.506.2010.sxw IN THE HIGH Court OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 506 OF 2010 Smt.Irene Martin Mukherjee ...Petitioner. Vs. Mrs.Kalpana Pachauri & Ors. ...Respondents. ..... Mr.Puneet Chaturvedi i/by Ms.Loshika K. Bulchandani for the petitioner. Mr.A.M.Rajabally, for respondent nos. 1 & 3. Mr.P.S.Tiwari for respondent no.2. ..... CORAM :- A.S.OKA, J. DATED :- 19TH MARCH, 2010. P.C.- 1 The submissions made by the learned advocate appearing for the parties were heard on the earlier date. 2 The challenge in the writ petition under Article 227 of the Constitution of India is to the judgment and order dated 26 th November 2009 passed by the Appellate Bench of the Small Causes Court, Mumbai by which application for interim relief made by the petitioner during skt/- 2 41.wp.506.2010.sxw pendency of an Appeal has been rejected. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to briefly refer the facts of the case. The petitioner is the original plaintiff. The petitioner filed a suit for declaration in the Court of Small Causes at Mumbai. The petitioner prayed for declaration of tenancy in respect of the suit premises being flat No.14/A, 1 st floor, Wildwook Part II Co-op. Hsg. Society Ltd., Yari Road Versova, Andheri (West), Mumbai 400 061. The suit was filed in the year 2001. The case is made out by the petitioner was that she was inducted in the suit premises at the monthly rent of Rs.5,000/- per month. In the plaint, an averment has been made that a sum of Rs.5,00,000/- was paid by the petitioner to the respondents-landlords as a security deposit. It is stated that the petitioner has paid a monthly rent upto 31 st January 2001 to 2 nd respondent, but no rent receipt has been issued. A reference has been made to the alleged threats of dispossession given to the petitioner. The reliance has been placed on the correspondence made between the parties. 3 A notice for temporary injunction was taken out by the petitioner. By way of reply to the notice, a contention was raised by the respondents skt/- 3 41.wp.506.2010.sxw regarding bar of jurisdiction. A contention was raised by respondent no.3 by filing a written statement that he has purchased the suit premises alongwith 1 st respondent. It is stated that in the year 1998, the husband of the petitioner approached him through 2 nd respondent and requested for granting the suit premises on leave and licence basis. Accordingly, an agreement was executed by and between 1 st and 3 rd respondents on one hand and the husband of the petitioner on the other hand by which leave and licence was granted for a period of eleven months in favour of the husband of the petitioner. The case made out by the 1 st and 3 rd respondents is that the period of leave and licence was extended from time to time. It is contended that the licence fee was fixed is Rs.11,000/- per month. Ultimately, a proceeding was filed under Section 24 of the Maharashtra Rent Control Act, 1999 for eviction of the husband of the petitioner. The Competent Authority passed an order of eviction against the husband of the petitioner. 4 A preliminary issue of jurisdiction was framed by the trial Court. The parties were permitted to adduce the evidence on the preliminary issues. The 3 rd respondent stepped into witness box and deposed about the leave and licence granted to the husband of the petitioner and about skt/- 4 41.wp.506.2010.sxw the order of eviction passed against the husband of the petitioner. The petitioner did not step into witness box. The learned trial Judge, by judgment and order dated 20 th October 2008, rejected the plaint by coming to the conclusion that no evidence has been adduced by the petitioner to prove the existence of tenant-landlord relationship. The learned Judge held that the petitioner has no cause of action to institute the suit and in absence of proof of existence of tenant/landlord relationship, the Court of Small Causes, Bombay has no jurisdiction to entertain the suit. The order of rejection of the plaint was challenged by the petitioner by preferring an Appeal. The interim relief sought in the Appeal was of continuation of the interim injunction granted on 5 th May 2001 by the trial Court. Thus, the prayer for interim relief is essentially for protecting the possession of the petitioner till the final disposal of the appeal. By the impugned order, the prayer for interim relief has been rejected. The Appellate Bench of the Court of the Small Causes, Bombay observed that there was an order of eviction passed by the Competent Authority against the husband of the petitioner and the said order was not challenged either by petitioner or by the husband of the petitioner. Therefore, the Appellate Bench came to the conclusion that now the petitioner cannot protect her possession as the order of the Competent Authority passed in 2003 has attained finality. skt/- 5 41.wp.506.2010.sxw 5 When the Writ Petition was placed on board on 8 th February 2010, this Court noticed that even according to her own case, from May 2001, the petitioner had not paid alleged agreed monthly rent of Rs.5,000/-. Therefore, the petitioner was directed to deposit 50% amount of the arrears of rent calculated at the rate of Rs.5,000/- per month from May 2001 to 31 st January 2010 on or before 16 th February 2010. Time to deposit the amount was extended till 8 th March 2010. Thereafter, submissions of the learned counsel appearing for the parties were heard on 12 th March 2010. It is not in dispute that no amount has been deposited by the petitioner after order dated 8 th February 2010 was passed by this Court. 6 The learned counsel appearing for the petitioner submitted that the substantive Appeal preferred by the petitioner has been admitted and therefore, pending the Appeal, the possession of the petitioner will have to be protected. He submitted that in the petition filed by the petitioner against her husband in the Family Court, husband of the petitioner has been directed to pay monthly maintenance only of Rs.5,000/- to the petitioner. The learned counsel submitted that it is impossible for the petitioner to pay monthly rent of Rs.5,000/- when she is getting monthly skt/- 6 41.wp.506.2010.sxw maintenance of Rs.5,000/- from her husband. The learned counsel appearing for the petitioner submitted that in fact the petitioner has made an application for grant of loan to pay the amount as per the aforesaid order of this Court. The learned counsel submitted that it will not be possible for the petitioner to pay the arrears unless the amount of interim maintenance is enhanced. The learned counsel submitted that during the pendency of the substantive Appeal challenging a decree of rejection of the plaint, the possession of the petitioner will have to be protected. The learned counsel, therefore, submitted that the interim relief which was operating from 5 th May 2001 be continued till the disposal of the Appeal. 7 The learned counsel appearing for the respondents supported the impugned judgment and order. The learned counsel submitted that a large amount is required to be paid by the respondents towards the maintenance charges of the society. He pointed out that a sum of Rs.5,000/- per month may not be sufficient to pay maintenance charges of the society. He submitted that no interference is called for. The learned counsel appearing for the petitioners placed reliance on the decision of this Court in case of “Kranti Mohad Guruprasad Mehra and Anr. v. Fatehchand Vasuram Behal, (AIR 1982 Bombay 263)” and submitted skt/- 7 41.wp.506.2010.sxw that even pending the decision on the preliminary issue, the Court has sufficient powers to grant ad-interim relief to protect the parties. 8 I have given a careful consideration to the submissions. As noted by the Courts below, an order of eviction has been passed in respect of suit premises against the husband of the petitioner in the year 2003 by the Competent Authority. The said order has been passed under Section 24 of the said Act, 1999 and neither the petitioner nor her husband have challenged the said order. 9 The case is made out in the plaint by the petitioner is that the petitioner was inducted as a tenant in the suit premises against the payment of cash of Rs,5,00,000/- by way of deposit and at monthly rent of Rs.5,000/-. Admittedly, from May-2001, not a single farthing has been paid by the petitioner to the respondents towards rent though the petitioner claims to be possession of the suit premises. The finding of the trial Court is that though an opportunity was granted by the trial Court to the petitioner to adduce evidence, she could not adduce any evidence to show creation of tenancy and the payment of Rs.5,00,000/- by her to the respondents. The petitioner claims to have paid a sum of Rs.5,00,000/- skt/- 8 41.wp.506.2010.sxw in the year 2001, though, she claims that she is surviving on the monthly maintenance of Rs.5,000/- paid to her by her husband. 10 The reliance has been placed on a judgment of the Family Court dated 13 th September 2005 by which a decree of judicial separation has been passed in favour of the petitioner. Under the said Judgment, alimony has been ordered to be paid to the petitioner at the rate of Rs. 5,000/- per month. The Judgment of the Family Court appears to be an ex-parte Judgment as the husband of the petitioner has not contested the petition of the petitioner before the Family Court. The learned counsel appearing for the petitioner states that the maintenance at the rate of Rs. 5,000/- per month has not been paid to the petitioner. 11 However, the fact remains that though the petitioner claims to be a monthly tenant in respect of the suit premises, she is admittedly occupying the suit premises from May 2001 without paying a single farthing to the respondents. The petitioner has not adduced any evidence before the trial Court. The respondents have obtained an order of eviction under Section 24 of the said Act, 1999 against the husband of the petitioner. The respondents continue to pay maintenance charges in skt/- 9 41.wp.506.2010.sxw respect of the suit premises payable to the Co-operative Housing Society in which the suit premises is situated. The petitioner has prayed for grant of temporary injunction which is a discretionary and equitable relief. The suit premises is situated in a very prominent residential locality of the suburbs of Mumbai. The petitioner has not paid a single farthing from May 2001. Though the petitioner was directed by this Court to pay only 50% of the arrears of rent calculated at the rate of Rs.5,000/- per month, not only that the said order has not been complied with, not even a single farthing has been deposited by the petitioner, even to show her bonafides. In the circumstance, such a litigant cannot be granted any equitable or discretionary relief for protection of her alleged possession over a very valuable property. It is, therefore, not possible to interfere with discretionary order passed by the Appellate Court. Considering the conduct of the petitioner, no case for inference is made out. The Writ Petition is rejected. It is made clear that no adjudication has been made by this Court as regards merits of the pending appeal. (A.S.OKA, J.)