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Judgment
The Court : This is an application filed by the defendant No. 2 for leave to carry out necessary repairs and renovation of the tenanted premises under
the supervision of the Receiver who has already been appointed in the matter by an order dated 27th September, 1996.
Learned Senior Counsel appearing for the defendant No. 2/applicant relies on an order passed by this Court on 25th September, 2008 in an application,
which according to him, was also for repairs in the same portion of the tenanted premises. By the said order, leave had been granted to the petitioner
to repair the ceiling over the wooden mezzanine floor of the tenanted premises at the cost of the petitioner and under the supervision of the Receiver
appointed.
He submits that at the time of passing of the said order in 2008, counsel for the plaintiff had raised an objection that the petitioner has no locus standi
to file the application and was not in occupation of the said premises but despite such objection having been taken, the order for repairs had been
passed by the Court nonetheless. Counsel relies on photographs annexed to the instant application which show that the walls of the premises are
horribly mildewed and in a precarious condition with the inner casing and under structures being hazardously exposed. He submits that there is an
urgent need to carry out repairs primarily for the petitioner to continue his business of selling shoes under the name and style of ‘Khadim’s’.
Learned Senior Counsel appearing for the plaintiff submits that the petitioner is admittedly a health clinic and has been described as such not only in
the cause title but also in a report annexed at page 31 to this application. The said report, however, also mentions that Khadims, a store selling shoes,
has opened only a year ago. The report does not have a date. The primary objection of Counsel appearing for the plaintiff is, however, that there is no
urgency averred in the application justifying the prayer for urgent repairs. He also submits that the urgency is purely of a commercial nature as has
been specifically pleaded in paragraph 15 which states, inter alia, that renovation work is necessary as otherwise, the petitioner will suffer loss of
business before the ensuing pujas.
Counsel seeks to file an affidavit to bring on record certain matters which he submits have not been fully disclosed in the instant application. Having
regard to the submissions made by Counsel appearing for the parties, this Court is of the view that whatever may be the present business of the
petitioner and whether such business has been wrongly represented, there is no material suppression of facts since documents have been disclosed
showing that the petitioner has described itself as ‘Khadims India Limited’ and has also referred to renovation of “High Street Shop of
Khadims : Annexure I to the application. The most significant part, however, is that by the earlier order dated 25th September, 2008, passed in an
application for similar reliefs, the petitioner/defendant No. 2 had been allowed to make the repairs as sought for under the supervision of the Receiver
already appointed in the suit.
Such order was passed ten years back and there is every livelihood that the tenanted premises may have deteriorated since then. The present
condition of the premises is corroborated by the photographs reflecting that urgent renovation is immediately called for. Further, no prejudice can be
caused if such repair work is made under the supervision of the Receiver. It may be noted that Senior Counsel appearing for the defendant No. 2 has
submitted that the repair work will not lead to a change in the nature and character of the premises in question.
It is also relevant to state that Counsel appearing for the plaintiff has not referred to any significant change of circumstances in the last ten years
which would deter this Court from passing an order permitting repairs of the tenanted portion of the building. In view of the above, GA No. 2327 of
2018 is allowed in terms of prayer (a). As suggested by Senior Counsel appearing for the plaintiff, before undertaking such repairs, the Receiver will
first cause a survey of the premises in question and file a report within a period of ten days from date in relation to the extent of the repair work
required.
The report of the Receiver will be made over to the plaintiff and the Receiver will conduct the survey in the tenanted premises in question in the
presence of representatives of both the plaintiff as well as the defendant No. 2. The Receiver will be entitled to a remuneration of Rs. 40,000 to be
borne equally by the plaintiff and the defendant No. 2. List this matter after three weeks. The plaintiff will be at liberty to file an affidavit-in-opposition
to the instant application in the meantime.