M/S Inderlok Infra-Agro Pvt. Ltd vs Sangita Chandrashekhar Mojar
2022 Latest Caselaw 6596 Bom

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ISM
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION
                     CIVIL WRIT PETITION NO. 6116 OF 2022

      M/S. INDERLOK INFRA-AGRO PVT. LTD.             ....PETITIONER

              V/s.

      SANGITA CHANDRASHEKHAR MOJAR                   .....RESPONDENT

                                      AND
                      CIVIL WRIT PETITION NO. 6117 OF 2022

      M/S. INDERLOK INFRA-AGRO PVT. LTD.             ....PETITIONER

              V/s.

      SUBHASH SHAMRAO MOJAR                          ....RESPONDENT

      Ms. Priti S. Shah Advocate for the Petitioner in both Petitions
      Ms. Vaijayanti R. Kalekar Advocate for the Respondent in both
      Petitions

                         CORAM :    NITIN W. SAMBRE, J.

                         DATE:      JULY 13, 2022.

      P.C.:

      1)      The issue involved in both these Petitions so also Petitioner are

common, by consent of the parties heard and decided together by

this common order.

2) Both these Petitions are directed against the order impugned

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dated 24/02/2022 whereby prayer of the Petitioner-Plaintiff who is

appellant before Appellate Court, for inspection of Suit premises

came to be rejected.

3) Petitioner initiated R.A.E. & R. Suit No. 700/1228/2008 and

701/1229/2008 for recovery of possession of the Suit properties.

Possession is sought under Section 16 of the Maharashtra Rent

Control Act (Hereinafter referred to as 'the Act' for the sake of brevity)

on the ground of carrying out addition and alterations, permanent in

nature to the Suit premises. Both Suits came to be dismissed vide

Judgment and Order dated 12/10/2012,

4) Feeling aggrieved, original Plaintiff preferred (A-1) Appeal No.

4/2013 and 5/2013. In both these Appeals by Plaintiff-landlord,

Application Exh. 21 are taken out with a prayer for issuance of

directions to the Respondent-Defendant to give inspection of the Suit

premises which was rejected vide order impugned dated 24/02/2022.

As such, these Petitions.

5) The contentions of counsel for the Petitioner are, grant of

inspection of the Suit premises is a statutory right vested in the

Petitioner-landlord under Section 28 of the Act r/w Order XXVI Rule

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9 of Code of Civil Procedure, 1908. Such right can be exercised by

either appointing Court Commissioner or by permitting the Petitioner

to have such inspection. Such right can be exercised by the

Petitioner-landlord at any stage of the proceedings. Even if the Suit of

the Petitioner is dismissed, provisions of Section 28 of the Act are

available at appellate stage and that being so, Court below committed

an error in rejecting the prayer.

6) Counsel for Respondent would urge that prayer of the Petitioner

is rightly rejected by the Appellate Court as the Petitioner has sought

possession of the Suit premises on such grounds wherein aforesaid

fact was relevant to be established by bringing on record sufficient

evidence. While dismissing the Suit of the Petitioner, Trial Court has

observed that Petitioner has failed to discharge burden by bringing on

record sufficient evidence which lacuna Petitioner-Plaintiff intend to

cover by taking recourse to the present proceedings which is not

permissible in law. In any case, it is claimed that at appellate stage,

Petitioner cannot claim the relief of inspection which was rightly

rejected by the Trial Court.

7)    I have appreciated said submissions.



                                                      6116.22 wp.doc

8)    The fact that Suit of the Petitioner-Plaintiff was dismissed and

Appeal questioning such dismissal is pending adjudication is not a

disputed fact. Provisions of Section 28 of the Act provides for

inspection of the premises. From the language of said section, it can

be inferred that said provision has to be read to the benefit of the

landlord i.e. Plaintiff herein as it starts with wordings shall be

entitled to inspect the premises. The only rider provided in the said

provision is, giving prior notice to the tenant, licensee or occupier of

the intention of landlord to inspect the premises.

9) As such, the Statute confers right of having inspection of the

Suit premises to the Plaintiff-Petitioner (landlord) and the rider while

exercising such right i.e. issuance of prior notice appears to have

been already complied with in the case in hand.

10) Inspection of premises includes detailed inspection including

that of inspection alongwith person having expertise knowledge about

the structure viz. architect, structural engineer etc. As such,

inspection can be carried out with such expert persons viz. architect,

structural engineer etc and such critical inspection is permissible. So

as to substantiate the aforesaid claim, support can be drawn from

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the Judgment of this Court in the matter of Empeegee Portfolio

Services Pvt. Ltd. Vs. Mrs. Navinchandra Shah1.

11) Aforesaid provision is general in nature and landlord as such

can on his own ask for such inspection after giving notice for having

inspection with the person having expertise knowledge. Said

provision does not cast an embargo on the right of the landlord as is

observed viz. giving details of alteration. Such right of landlord can

not be restricted to the stages viz. before filing of the Suit, during

pendency of the Suit or during pendency of the Appeal. The

language employed in Section 28 does not put an embargo on the

right of the Petitioner-landlord to whose benefit such provision is

incorporated in the Statute. It is open for such person to take

recourse to the same at any stage. It will be violence to the Section if

same is interpreted to mean that the provision is not available during

pendency of the proceedings before the Court as is claimed by the

Respondent. This Court is required to be sensitive to the principle of

law that Appeal is a continuation of the Suit. The provision as such

can be even taken recourse during pendency of the Suit so also

Appeal.

1 2009(2) AIR BOM R 394

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12) Material collected in the form of expertise report or such other

documentary evidence whether can be used and accepted during

pendency of the Suit or Appeal will be an independent issue. Same

can be independently considered by the concerned Court on its own

merit in acccordance with law at an appropriate stage of the

proceedings. However, just because inspection is asked during

pendency of the Suit or during pendency of the Appeal does not ifso

facto attract an embargo on the right of the Petitioner-landlord to

seek remedy under Section 28 of the Act.

13) In the aforesaid background, in my opinion, orders impugned

passed by the Appellate Court ignoring the mandate and object of

Section 28 of the Act are not sustainable.

14) As a consequence of above, orders impugned dated 24/02/2022

passed below Exh. 21 in (A-1) Appeal Nos. 4/2013 and 5/2013 are

hereby quashed and set aside. Applications Exh. 21 stand allowed.

15) Petitions stand allowed in the above terms.

16) Appellate Court is directed to fix the date of inspection.

                                                          [NITIN W. SAMBRE, J.]

      IRESH SIDDHARAM   Digitally signed by IRESH
                        SIDDHARAM MASHAL

      MASHAL            Date: 2022.07.14 14:44:22 +0530