Bombay High Court
Smt. Sohini Mohan Shah vs Raymond Kersi Sirwala on 24 August, 2018
Author: R.G. Ketkar
Bench: R.G. Ketkar
903-wp-1970-2012.odt
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.1970 OF 2012
Sohini Mohan Shah ] Petitioner
Vs.
Raymond Kersi Sirwala ] Respondent
.....
Mr. M.S. Bhandari i/b Ms. Pranjali Bhandari, for Petitioner.
Mr. C.N. Chavan, for Respondent.
.....
CORAM : R.G. KETKAR, J.
DATE : 24TH AUGUST, 2018.
P.C.
Heard Mr. Bhandari, learned Counsel for the petitioner and Mr. Chavan, learned Counsel for the respondent.
2. Perused the order dated 18th January, 2013 passed by the Apex Court in SLP Nos. 20895-20896 of 2012. By that order, the Apex Court dismissed SLP subject to the respondent filing undertaking before trial Court to the effect that in case the suit is decided against him, he will voluntarily vacate the suit premises within 4 weeks from the date of the decision. It is common ground between the parties that the respondent has filed undertaking in the trial Court on 8th December, 2015.
3. The matter was heard on 10th August, 2018. On that day, Ghevarchand Jivraj Jain, Constituted Attorney of the petitioner Sohini Mohan Shah was present in the Court. Upon taking instructions from him, Mr. Bhandari stated that the petitioner will hand over vacant and peaceful 1 of 3 ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:09:04 ::: 903-wp-1970-2012.odt possession of the suit premises to the respondent on Monday, the 20 th August, 2018 at 11.00 a.m. Assurance of Mr. Chavan that the respondent will personally remain present at the suit premises for taking possession on the date and time so fixed was also recorded. Now, there is dispute between the parties as regards extent of the suit premises to be handed over by the petitioner herein. In the plaint, the respondent/plaintiff has asserted that his uncle Nariman M. Bharucha was the tenant in respect of one room and kitchen having an independent door admeasuring 600 square feet in the building situate at 34A, Boyce Bungalow Compound, Sleater Road, Grant Road, Mumbai - 400 007. The petitioner/defendant filed written statement, inter alia, contending that area of the suit premises does not admeasure 600 square feet. It is, however, material to note that the petitioner/defendant did not set out exact area which according to her was in possession of the respondent/tenant.
4. The petitioner has relied on the following documents:
[1] Commissioner's report dated 6th June, 2008 along with photographs 1 to 36.
[2] Irrevocable consent dated 1st April, 2003 of Mr. Nariman Bharucha to Chief Officer, Mumbai Building Repairs and Reconstruction Board.
[3] Architect's Floor plan at page 10.
[4] Architect's report dated 20th April, 2016 along with map,
pages 11 and 12.
[5] Rent receipt No.38 dated 30th June, 2005 and rent receipt
No.19 dated 14th May, 2018.
5. The respondent has relied upon following documents:
[1] The statement of claim dated 30th September, 1975 2 of 3 ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:09:04 ::: 903-wp-1970-2012.odt submitted by the respondent/original tenant Nariman Bharucha to Special Land Officer and in particular paragraph 5 thereof.
[2] Rough map at page 18.
[3] Information submitted by Tenants Association at page 19
and 20 as also rent receipts dated 1st June, 1971 and 1st July, 1971, 1st February, 1981, 1st November, 1988 and 18th October, 1989.
6. Learned Counsel appearing for the parties assure that they will hand over compilation of documents relied on by them to the Architect so appointed and also share expenses in equal proportionate. By consent, Parelkar and Dallaus Architects on the panel of this Court are appointed as Commissioner to carry out measurement of the suit premises. The Architects shall go through the papers and proceedings relied on by the parties and submit report within two weeks from the date of appointment. The parties shall obtain consent as also estimate of expenses on or before 31 st August, 2018.
7. List the matter for further orders on 31st August, 2018 at 3.00 p.m. [R.G. KETKAR, J.] 3 of 3 ::: Uploaded on - 27/08/2018 ::: Downloaded on - 31/08/2018 23:09:04 :::