Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 53/2018 in S.C Suit No.159/2018. 1 Order.
MHCC010001192018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 53 OF 2018
IN
S.C. SUIT NO. 159 OF 2018
Elvira John D’souza ... Plaintiff
V/s.
Eugene Francis Fernandes & others ... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 16/06/2023.
Appearance:-
Ld. Advocate S.S. Redekar for the plaintiff.
Ld. Advocate Jignesh Chauhan for the defendants.
ORDER
1. Plaintiff has taken out this notice of motion for temporary
injunction restraining defendants from disturbing her peaceful
possession over the Room No. A-3, Ground Floor, Swarupanand Co-op
Hsg. Scoiety, Thakurwadi well defined in the plaint (hereinafter reffered
as “suit premises”). Defendants filed reply and opposed the notice of
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NM No. 53/2018 in S.C Suit No.159/2018. 2 Order.
motion.
2. It is the case of the plaintiff that, the suit property was
owned by her father Rosario Pascal Cardoz. Plaintiff and defendant Nos.
1,2 and 4 are daughters and defendant No.3 is son of Rosario Pascal
Cardoz. During life time, Rosario Cardoz executed one affidavit and
gave the suit property in possession of the plaintiff and another
daughter Felicia. Rosario Pascal Cardoz died on 08.03.2009 and Felicia
died on 27.07.2013. Since then, the plaintiff is in possession of the suit
property. Defendants are disturbing position of the suit property,
therefore, plaintiff is constrained to file this suit for temporary
injunction. Thus, notice of motion is moved for temporary injunction
restraining defendants from dispossessing her without following due
procedure of law.
3. The case of defendants is that, plaintiff is in illegal
possession of the suit property. After the death of father, Plaintiff and
defendants have common rights and they are the co-owners of the suit
property. Plaintiff is in not in exclusive possession of the suit property.
Defendants had executed leave and licence agreement of the suit
property and after expiry of period of said leave and licence, defendants
were in possession of the suit property. The plaintiff broken lock and
illegally took possession of the suit property. She is illegally in
possession of the suit property by breaking lock of the suit property
placed by defendant No.2. In that regard defendants had approached to
the police on 15.07.2017. Plaintiff is not entitled for temporary
injunction against the co-owners. Hence, defendants prayed to dismiss
the notice of motion.
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NM No. 53/2018 in S.C Suit No.159/2018. 3 Order.
4. I have heard Ld. Advocates for the plaintiff and defendants.
Following points arises for my determination and my findings thereon
are stated as below:
SR.NO. ISSUES FINDINGS
1
Whether plaintiff has established
prima facie case?
In the affirmative.
2 Whether balance of convenience lies
in favour of the plaintiff?
In the affirmative.
3 Whether irreparable loss will cause
to plaintiff, if temporary injunction
is refused?
In the affirmative.
4 What order ? As per final order.
REASONS
5. Ld. Advocate for plaintiff referred the reply of the
defendants and argued that, in Para-6 of the reply, defendants admitted
plaintiff’s possession over the suit property. Even if plaintiff is in
unlawful possession, defendants have no right to dispossess the plaintiff
without following due procedure of law. Ld. Advocate also referred
notice reply filed by defendants and argued that, defendants had
contended therein that, after the death of Felicia, key of the suit flat is
in custody of the plaintiff and this contention is falsifying their
contention in the reply about forcefully taking possession of the suit
property. Even if, the plaintiff is in unlawful possession, defendants
cannot dispossess the plaintiff without following due procedure of law.
Though the defendants have claimed their rights in the suit property,
but they cannot take law in their hands and has to adopt procedure
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NM No. 53/2018 in S.C Suit No.159/2018. 4 Order.
prescribed by law to claim their rights. Plaintiff has established prima
facie case. If temporary injunction is not granted, she will suffer
irreparable loss. Being in physical possession balance of convenience is
in favour of plaintiff. Hence, Ld. Advocate prayed to allow the notice of
motion.
6. Per contra, Ld. Advocate for the defendants referred electricity
bill and receipt of maintenance of the suit property and argued that,
those documents are still in the name of the father of the plaintiff and
defendants. He also referred one leave and licence agreement dtd.
22.02.2014 executed by the plaintiff and Felicia, which expired on
03.02.2015. He also referred another leave and licence agreement dtd.
31.01.2015 executed by the defendants and the licencee Balaji Maharaj
Son of Ashok Maharaj is expired on 03.01.2016. On the basis of those
agreements, Ld. Advocate for the defendants argued that, defendants
were in possession of the suit property after the expiry of this
agreement. Plaintiff forcefully taken possession of the suit property and
therefore, defendants had given application on 12.06.2017. Plaintiff
also prepared false affidavit by making signature of defendants on
24.11.2009, for which defendants had filed police complaint.
Defendants have right in the suit property after the death of their father.
Affidavit relied by the plaintiff is not last Will of the father and
therefore, plaintiff cannot claimed her exclusive possession on the basis
of said affidavit excluding the defendants who are co-owners of the suit
property. Therefore, plaintiff is not entitled for temporary injunction
against the co-owners i.e. defendants. Hence, plaintiff has no prima
facice case and balance of convenience does not lies in favour of
plaintiff. If, injunction is refused no irreparable loss caused to the
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NM No. 53/2018 in S.C Suit No.159/2018. 5 Order.
plaintiff. Therefore, Ld. Advocate for the defendants prayed to dismiss
the notice of motion.
7. Relationship of the plaintiff and defendants is not in dispute. The
suit property is owned by their father Rosario Pascal Cardoz, is also not
in dispute.
8. It appears from the affidavit of Rosario Pascal Cardoz dtd.
28.01.2003 that, during his life time he has given possession of the suit
property to the plaintiff and his another daughter Felicia. This affidavit
cannot be termed as a “Will” and it does not confer any right, interest or
ownership of the suit property on the plaintiff, but by this document,
plaintiff has prima facie established that during the life time possession
was given by the father to plaintiff and Falicia. It appears from leave
and licence agreement dtd.22.02.2014 that, after death of Felicia on
27.07.2013, plaintiff alone had given suit property on leave and licence
agreement. Though the subsequent leave and licence agreement
executed by the defendants, but the contention in the notice reply
issued by the defendants on 17.04.2017 shows that, after the death of
Felicia suit property is in possession of plaintiff. Further contention in
the notice reply is showing that plaintiff had given suit property on
leave and licence agreement for three years to Balaji Maharaj i.e
licencee. This contention is raising doubt in subsequent leave and
licence agreement executed by the defendants. Apart from this, the
application dtd. 12.06.2017 given by the defendants to police is
showing that plaintiff is in possession of the suit property.
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NM No. 53/2018 in S.C Suit No.159/2018. 6 Order.
9. From the documents placed on record, I find that plaintiff is in
exclusive possession on the suit property. Defendants are co-owners and
having right and interest in the suit property as claimed by them in their
notice dtd. 17.04.2017, but for that reason they cannot dispossess the
plaintiff from the suit property without following due procedure of law.
In this regard, Ld. Advocate for the plaintiff rightly relied on the ruling
of Hon’ble High Court of Punjab and Hariyana in the case of Tara Singh
V/s. Maghar Singh, 2005 LawSuit (P & H) 306, wherein, the Hon’ble
High Court has observed that, co-owners of the property is entitled to
seek the an injunction against other co-owner, who has been in
exclusive possession of the entire or the part of the property.
10. In view of the above observation and considering the
factual position revealed from the documents, I find that plaintiff is in
exclusive possession of the suit property. Thus, plaintiff has prima facie
case to protect her possession from dispossessing by the hands of
defendants without following due procedure of law. Thereby, I find that
plaintiff has prima facie and balance of convenience lies in favour of the
plaintiff. If, temporary injunction is not granted, plaintiff may loss her
possession and it would create complication in the suit and thereby
plaintiff would suffer irreparable loss. For these reasons, I answer point
No. 1 to 3 in affirmative. Notice of motion deserves to be allowed.
Accordingly, I pass following order:
- ORDER -
1. Notice of Motion No.53 of 2018 is allowed in terms of prayer
clause (a).
2. Defendants are hereby temporarily restrained from
dispossessing plaintiff without following due procedure of law till
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NM No. 53/2018 in S.C Suit No.159/2018. 7 Order.
disposal of the suit.
3. Notice of Motion No.53 of 2018 disposed off accordingly.
(N.G. Shukla)
Judge
City Civil Court,
Date :16.06.2023 Gr. Bombay.
1. Dictated on : 16.06.2023
2. Transcribed on : 16.06.2023
3. Checked and Signed on : 17.06.2023
4. Delivered to Certified :
Copy Section on
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NM No. 53/2018 in S.C Suit No.159/2018. 8 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17.06.2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 16.06.2023
Judgment/Order signed by P.O. on 17.06.2023
Judgment/Order uploaded on 17.06.2023
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