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MHSCA20021402022 Received On 07.10.2022

Registered On 23.11.2022
Decided On 12.11.2024
Duration Years Months Days
01 11 20

IN THE COURT OF SMALL CAUSES, MUMBAI

R.A.E. NO.1249 OF 2022

Plaintiff
Hanumant Housing Company
Through its Proprietor Shshibhushan Gavankar
6, Narayan Ashram, Dr. B.R. Ambedkar Road,
Lalbaug, Mumbai-400 012.
Versus
Defendants
1. Shri. Shrirang Dinkar Sawant
Age: Adult, Occupation: Not Known,
Shop No.1, 6, Narayan Ashram 6,
Dr. B.R. Ambedkar Road,
Lalbaug, Mumbai-400 012.
2. Suresh Shetty (Full Name Not Known)
Age: Adult, Occupation: Not Known,
Veer Mahal, Durga Parmeshwari Lunch Home,
Dr. B.R. Ambedkar Road,
Lalbaug, Mumbai-400 012.

Appearances:
Mr. Rajeev Khanolkar, Learned Advocate for the Plaintiff
Ex-parte for Defendants
Coram : Nutan S. Saraf, Judge
Court Room No.7
Date : 12th November, 2024
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JUDGMENT
[Pronounced today on 12th November, 2024]

Facts of the plaintiff case in nutshell:

1. The plaintiff was a partnership firm and there were 3 partners

namely Shantaram Gavankar, Jayashree Gavankar and

Shashibhooshan Gavankar, out of which Shantaram expired on

29.11.2004, Jayshree expired on 13.5.2016 and now only surviving

partner and now sole proprietor Shashibhooshan Ganvankar is living

and looking after all affairs of Hanumant Housing Company who is

owner of structure known as Narayan Ashram situate on land

bearing Cadastral Survey No.27/74 of Parel Siwari Division and

located at 6, Dr. B.R. Ambedkar Road, Lalbaug, Mumbai-400 012.

The plaintiff is owner and landlord of Shop No.1 in the said building,

Narayan Ashram at 6, Dr. B.R. Ambedkar Road, Lalbaug, Mumbai-

400 012.

2. The defendant No.1 was monthly tenant in respect of Shop No.1.

The monthly rent is Rs.101/-. The defendant No.1 inducted

defendant No.2 in shop No.1 illegally and unauthorizedly

(hereinafter to achieve brevity referred as the 'suit premises'). The

landlord, plaintiff is lessee of land on which building Narayan

Ashram is constructed and Municipal Corporation of Greater Mumbai

is lessor. The building Narayan Ashram is ground plus four storey

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and comprise of 26 tenants 6 shops. The said shop No.1 is

admeasuring about 377 sq. ft. The fire broke out in the said shop

No.1 on 13.7.2021 and much structural damage was caused to the

said shop and building.

3. The defendant No.1 did some acts against the conditions of

tenancy and in reach of Maharashtra Rent Control Act such as

construction of mazenine floor inside the shop, backside of shop

constructed shed without permission of landlord, behind backside of

shop No.2 goods and materials are stored, sublet the suit shop No.1

to defendant No.2, causing nuisance and annoyance to other tenants,

etc. Due to above acts, omission and commissions plaintiff

terminated the tenancy rights of defendant No.1 by letter dated

15.7.2021 which is duly received by the defendant No.1.

4. By letter dated 15.7.2021 plaintiff terminated the monthly

tenancy of defendant No.1. The defendant No.1 replied to the said

notice by his letter dated 8.10.2021. The present suit is filed on the

grounds available to the plaintiff under Maharashtra Rent Control

Act, 1999 namely Section-16(1)(b) & 16(1)(e). The plaintiff is

seeking vacant possession of suit shop from defendant Nos.1 & 2 by

decree of this Court.

Non-appearance of defendants:

5. Despite of substituted service by publication as well, defendants

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failed to appear before the Court. Hence, this Court passed exparte

order on 28.6.2024 against the defendants and ordered to move the

suit exparte against them.

Hearing of the Matter:

6. Learned Advocate Mr. Rajeev Khanolkar argued at length on

behalf of the plaintiff. Plaintiff filed written notes of argument on

Exhibit-27

Points for determination:

7. From the facts of the case and depositions on record following

points arises for my determination and I have given findings along

with reasons thereon as under:

Sr. No. Points Findings

1. Does the plaintiff prove that the defendant
No.1 has carried out additions and In the
alterations of permanent nature in the suit Affirmative
premises without his consent?
2. Does the plaintiff prove that the
defendant No.1 has made construction of
In the
permanent nature in the suit premises
Affirmative
without consent of landlord and
competent authority?
3. Does the plaintiff prove that defendant No.1
In the
has unlawfully sublet the suit premises
Affirmative
to defendant No.2?
4. Is the plaintiff entitled to get declaration as In the
prayed? Affirmative
5. Is the plaintiff entitled to get vacant and
In the
peaceful possession of the suit premises, as
Affirmative
prayed?
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6. What Order and Decree? As per
operative
order

REASONS
8. In order to substantiate the claim, plaintiff examined P.W. No.1

Mr. Shashibhooshan Gavankar (Exhibit-20). Plaintiff placed reliance

on following documentary evidence:-

Plaintiff’s Documents

Sr. No. Particulars Exhibit No.

1 Legal Notice of Termination of Tenancy dated Exhibit-22
15.7.2021
2 Reply of defendant No.1 dated 8.10.2021 Exhibit-23

AS TO POINT NOS.1 to 5:

9. To avoid repetitions, the points are discussed together.

10. Plaintiff invited attention to the oral evidence of P.W. No.1 vide

Exhibit-20, therein he reiterated the whole pleading of plaint as it is.

He stated that defendant No.1 was monthly tenant of suit premises.

He inducted defendant No.2 in the suit premises illegally and

unauthorizedly. Structural damage caused on suit premises and

building due to fire broke out in the suit premises on 13.7.2021. The

conduct of defendant No.1 is against the terms and conditions of the

tenancy. He constructed mezzanine floor inside the shop and also

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constructed shed to the backside of the shop without permission of

the landlord. Due to said acts and omissions, plaintiff issued

termination of tenancy rights of defendant No.1 by letter dated

15.7.2021 vide Exhibit-22 which was received by defendant No.1. He

replied to the said notice by his letter dated 8.10.2021 which is at

Exhibit-23. Therefore, the plaintiff is entitled to get vacant

possession of the suit shop from the defendants. Heard learned

Advocate for the plaintiff at length. This Court considered pleading,

oral and documentary evidence of the plaintiff. The termination

notice vide Exhibit-22 issued to the defendant No.1. Accordingly he

replied as per letter dated 8.10.2021 vide Exhibit-23. Therein

defendant No.1 denied the contention raised by the plaintiff that he

constructed mezzanine floor in the said shop. Furthermore, he

accepted about incident of fire in the suit premises and also

submitted that set of fire extinguished by fire brigade. He obtained

permission from the concerned department prior to start of hotel

business. According to him he removed tin shed from the backside of

the suit shop and also mentioned in that letter one cable-man was

removed by him. On scrutinize the said letter which is reply by

defendant No.1 to the termination letter issued by the plaintiff vide

Exhibit-22 the facts reveal that there was fire broke out in the suit

shop, there was also unauthorized shed which was removed by

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defendant No.1 as per his reply from the backside of suit shop. He

also removed one cable-man. It means he has illegally and without

permission sublet the suit premises. That apart, inspite the notice

issued to him vide Exhibit-22 and reply made by him vide Exhibit-23,

defendant No.1 failed to contest the suit and file his defence and

evidence if any. Neither Defendant No.1 nor defendant No.2

contested suit and discarded case of plaintiff. Under such

circumstances, the contentions raised by the plaintiff in his oral and

documentary evidence remained intact. There is also sum and

substance in the reply of letter dated 8.10.2021 issued by the

defendant No.1 in respect of fire broke out in suit shop,

unauthorized construction and subletting the suit premises, etc.

11. The plaintiff issued notice to the defendant No.1 on the grounds

mentioned therein vide Exhibit-22 for termination of tenancy. So far

as to concern for said letter-cum-termination of tenancy notice

received by defendant No.1 and reply by him as per letter dated

8.10.2021 vide Exhibit-23. Therefore, the plaintiff proved that he

issued termination of tenancy notice against defendant No.1.

Therefore, he is entitled for declaration that notice/letter vide

Exhibit-22 is in respect of termination of tenancy of suit shop.

12. As discussion held above, defendants failed to file their defence,

cross-examine and discard the contention of the plaintiff's witness.

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Therefore, the oral and documentary evidence of the plaintiff

remained unchallenged and intact. That apart, as per the reply letter

dated 8.10.2021 vide Exhibit-23, there is averment of the

extinguished of fire and alteration in suit premises as well as sublet

the suit premises, but the same was removed by the defendant No.1.

To this premise, there is no defence, oral and documentary evidence

filed by the defendant No.1. Therefore, it is also additional link that

the defendant No.1 breached terms and conditions of the tenancy,

sublet the suit premises illegally and unauthorizedly to the defendant

No.2 and unauthorizedly constructed tin shed to the backside of the

suit shop. Hence, this Court observed that, the plaintiff proved it's

case that the defendant No.1 has carried out additions and

alterations of permanent nature in the suit premises without his

consent, he has made construction of permanent nature in the suit

premises without consent of landlord and competent authority.

Defendant No.1 has unlawfully sublet the suit premises to defendant

No.2. Thus this Court is of the view that plaintiff is proved its case

with Cogent evidence therefore, he is entitled to get declaration and

vacant, and peaceful possession of the suit premises. Hence, as

discussion held above this Court answers the point Nos.1 to 5 in the

'Affirmative'.
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AS TO POINT NO.6:

13. Having answered the above said points and discussion, this Court
proceed to pass the following order:

OPERATIVE ORDER
1. Suit is decreed with costs.

2. It is declared that letter dtd. 15.7.2021 is in respect of

termination of tenancy was issued by plaintiff in favor
of defendant No.1

3. The defendants are directed to handover vacant and

peaceful possession of the suit premises viz. Shop No.1
situated at Ground Floor, Narayan Ashram, Dr. B.R.
Ambedkar Road, Lalbaug, Mumbai-400 012 as
described in the suit plaint, to the plaintiff, within the
period of two months from the date of this judgment.

Date: 12th November, 2024 Digitally signed

by NUTAN
SATISH SARAF
Date: 2024.11.13
14:35:13 +0530

[Nutan S. Saraf]
Judge, Court Room No.7,
Small Causes Court, Mumbai
Judgment dictated on : 12.11.2024
Judgment transcribed on : 12.11.2024
Judgment checked & signed : 12.11.2024