Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.211 OF 2020
IN
S.C.SUIT NO.97 OF 2020
Mrs.Hazel widow of Peter Kingham … Plaintiff
V/s
1. Ms.Rebecca Kingham,
2. Husain Lokhandwala Firoz Lokhandwala … Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 24th JUNE, 2020
Mr.R.M.Vanoo, ld. adv. for plaintiff.
Mr.Sahil Saiyed M.Nagamiya, ld adv. for defendant no.1.
ORDER
1. This notice of motion is taken out by plaintiff for
temporarily restraining defendants from entering upon into suit
premises i.e. Flat no.B6, situated at Picodely flats, 2 nd floor, Clear Road,
Byculla, Mumbai08 or for temporarily restraining defendants in any
manner interfering and disturbing plaintiff’s exclusive rights possession
therein or acting in any manner to cause any nuisance, annoyance,
harassment or harm to plaintiff. She has also prayed for the directions
to police to assist the plaintiff in the event of such noncompliance of
restraining by defendants.
2. Plaintiff has filed affidavit in support of notice of motion
contending that plaintiff has filed this suit for the prayers made in the
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plaint and she is intending to rely upon averments from plaint and the
documents annexed to it. It is further contended that plaintiff has
apprehension and fear of physically bodily harm at the hands of
defendants who are trying to usurp suit premises i.e. residential house
of plaintiff and defendant no.1 is claiming to be plaintiff’s adopted
daughter. It is contended that suit premises is exclusively belonging to
plaintiff and defendant no.1 has no right, title and interest whatsoever
therein. Defendant no.1 has conspired along with defendant no.2 who
caused bodily harm and injuries to plaintiff and as such plaintiff’s life is
under threat. It is alleged that defendants are in a close relationship
with each other and proposing to get married to each other, they have
openly declared that they are waiting for plaintiff to die in order to lay
their hands of suit premises. It is contended that defendant no.1 being
plaintiff’s foster daughter and defendant no.2 presently being close
associate of defendant no.1 are not entitled to interfere into plaintiff’s
exclusive rights and possession in suit premises. Inspite of it,
defendants have threatened plaintiff of causing bodily harm and
injured. They have also threatened usurping suit premises. Hence,
according to plaintiff, if notice of motion will not be made absolute
plaintiff will suffer from great loss which cannot be compensated in
terms of money.
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3. As contended in the plaint, plaintiff is Sr.citizen of 75 years and
she is widow of Mr.Peter Kingham. She is residing at suit premises.
Plaintiff is the foster parent of defendant no.1 and defendant is residing
at suit premises with plaintiff. Defendant no.2 is in close relation with
defendant no.1 as boyfriend of defendant no.1 Plaintiff being an
elderly senior citizen finds herself at this feeble stage in life countering
the constant and continuous threats to her life at the hands of
defendants including her poster daughter defendant o.1 It is alleged
that defendants have strong motive to somehow usurp suit premises
belonging to plaintiff for defendants and in furtherance of said motive
defendants are openly declaring that they are simply waiting for
plaintiff to die. Hence, defendants have made plaintiff’s life miserable
and unbearable to live therefore, plaintiff is constrained to approach the
Court.
4. It is contended that since prior to 1970 plaintiff has been
exclusive tenant in respect of suit premises as it was acquired
independently by plaintiff and as such tenancy and rent receipt thereof
is exclusively standing in plaintiff’s name right from inception. Plaintiff
has been making all payments of monthly rent of suit premises to
landlord entirely out of plaintiff’s own source of income. Copies of
several documents reflecting her exclusive tenancy over suit premises
are with plaintiff. She has filed copies of rent receipts along with plaint
as Exh.A collectively. She also has electricity bills, telephone bills
pertaining to suit premises exclusively standing in her name. Further
she has several documents like Aadhar Card, PAN Card etc. showing her
address as suit premises. Copies of electricity bills are filed with as
EXh.B. According to plaintiff, she hold exclusive rights in suit premises.
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5. It is contended that in 1974 plaintiff was married with Mr.Peter
Kingham, however out of their wedlock they had no children hence
Mr.Peter Kingham decided to adopt defendant no.1 as his daughter.
However Christian faith by which plaintiff and her husband were
governed does not permit adoption her child. Mr.Peter Kingham
therefore, filed Guardianship Petition N0.113/1995 in Hon’ble High
Court for his appointment as Guardian of defendant no.1 from inmate
of family Service Centre, Eucharistic Congress Building No.III, 5,
Convent Street, Colaba, Mumbai39. At that relevant time of
appointment of guardianship, defendant no.1 was minor child of about
three years. Mr.Peter Kingham was appointed as guardian no.1 by the
order dated 11/10/1995 passed by Hon’ble High Court in said
guardianship petition Therefore, Mr.Peter Kingham under said order of
Hon’ble High Court undertook to adopt defendant no.1 being then
minor child in the event of any law being passed permitting Christians
to adopt children. Mr.Peter Kingham also deposited Rs.10,000/ in the
name of minor in the Unit Trust of India, scheme of Children Gift
Grown Fund, 1986 till the defendant attained majority with the express
undertaking that neither Mr.Peter Kingham nor plaintiff will withdraw
said amount in any event. Copy of order dated 11/10/1995 passed by
Hon’ble High Court in Guardian Petition No.113/1995 is annexed to the
plaint as Exh.C
6. It is contended that pursuant to his appointment by Hon’ble High
Court as Guardian of defendant no.1, plaintiff’s husband Mr.Peter
Kingham and plaintiff have nursed and brought up defendant no.1 as
their own daughter. Right from her childhood, defendant no.1 was
looked after of her into and requirement as a child and she was placed
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in the post school in the locality. Mr.Peter Kingham was extremely fond
of defendant no.1 and he took extra ordinary care and custody of
defendant no.1. Mr.Peter Kingham yielded to all her demands in
childhood best including the fact that he would personally take
defendant no.1 to the school and bring her back home. All the
education, medical and other requirements of defendant no.1 were
taken care of by Mr.Peter Kingham.
7. It is contended that upon defendant no.1 completed her school
education, was given admission in one of the best College in the City of
Mumbai. Mr.Peter Kingham and plaintiff groomed defendant no.1 in
the best possible manner and attended to all her needs and
requirement in life. At no point of time defendant no.1 was made to
feel that she is the foster child and Mr.Peter Kingham was guardian of
defendant no.1 appointed by the Court. Mr.Peter Kingham and plaintiff
always treated defendant no.1 as their own daughter. Defendant no.1
attained majority in the year 2010 the investment made in the Unit
Trust of India Scheme, children Growth Fund, 1986 has been
exclusively belonging to defendant no.1 and has all through out
remained with her till filing the suit.
8. It is contended that in 2014 plaintiff’s husband Mr.Peter Kingham
died at Mumbai on 27/11/2014 leaving behind plaintiff to look after
defendant no.1. During lifetime of Mr.Peter Kingham there was no
occasion for him to comply with the undertaking to adopt defendant
no.1 as the law of Christians to adopt children had not been passed at
all. As such defendant no.1 was never adopted child but a foster
daughter of Mr.Peter Kingham and plaintiff. Although after death of
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Mr.Peter Kingham plaintiff was not legally bound to look after and/or
to act as guardian of defendant no.1 under High Court order dated
11/10/1995, still the plaintiff looked upon defendant no.1 as her own
daughter with deep attachment with defendant no.1 since her
childhood. Plaintiff took up the mantle of discharging all duties and
responsibilities of defendant no.1 even though defendant no.1 had
attained majority. Marriage certificate of plaintiff and Mr.Peter Kingham
is annexed to the plaint as Exh.D.
9. It is contended that in keeping with her duties and
responsibilities plaintiff under took all expenses for every needs and
requirements of demands of defendant no.1 entirely out of plaintiff’s
own income. In the absence of husband plaintiff took all care of
defendant no.1 as mother of defendant no.1. Plaintiff also gave
defendant no.1 pocket money for her personal expenses and outgoing
with friends. In order to enable the defendant no.1 to pursue a carrier
in teaching plaintiff got placed defendant no.1 in Agnes Teacher's
Training College. Plaintiff has paid huge fees towards such training
classes for defendant no.1 entirely out of plaintiff’s own income and
savings. After death of husband, plaintiff used to derive her own little
income out of the tuitions rendered by her to students in the locality in
addition to her savings and amounts laid by Mr.Peter Kingham.
Defendant no.1 would often make demands of money for her personal
expenses which plaintiff always gave to defendant no.1. Plaintiff also
raised defendant no.1 to become a competent teacher as defendant no.1
herself shown interest in becoming teacher after completing her
training.
10. It is contended that in April, 2017 defendant no.1 informed
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plaintiff that defendant no.1 has got a teaching job with Orchard
International School at Masjid Bunder, Mumbai. Defendant no.1
wanted to have her independent source of income and therefore
defendant no.1 took teaching job without disclosing plaintiff her terms
of employment. Within a short period of nine months defendant no.1
left teaching job with said school at Masjid Bunder without assigning
any reason to plaintiff for such abrupt discontinuance. Thereafter,
defendant no.1 insisted upon plaintiff to use the influence and
reputation of her husband Mr.Peter Kingham for getting a teaching job
for defendant no.1 at St.Peter's School at Mazgaon. Plaintiff made
strenuous efforts and spoke with management of St.Peter School
Mazgaon in order to get defendant no.1 a teaching job. Finally, plaintiff
succeeded in getting defendant no.1 employed with St.Peters School at
Mazgaon to teach primary school students.
11. It is contended that till Mr.Peter Kingham was alive, defendant
No.1 was quite disciplined and well mannered, however during the
year, 20172018 there was noticeable change in attitude and behavior
of defendant no.1, she started coming home very late at night and she
would spend hours in speaking over mobile phone under the pretext of
talking and chatting with some of her female friends. Defendant no.1
become very assertive of her independent lifestyle and repeatedly called
plaintiff an old orthodox person. Defendant no.1 become very
irresponsible and started throwing about her clothes and other
belonging in the house leaving the plaintiff to pick and place them in
her cupboard. Defendant no.1 declined to help plaintiff in cooking and
other kitchen works. Defendant no.1 demanded plaintiff to serve her
food on table, she would also keep demanding money from plaintiff for
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her personal expenses. Defendant no.1 was regularly busy in talking
with someone for long duration on mobile phone calls and Whatsapp
chats. When plaintiff asked defendant no.1 to discloses the names of her
friends to whom she was talking to, defendant no.1 would frown and
thrown tantrums at plaintiff and even point blank refuse to answer the
plaintiff. Dispite rude behavior of defendant no.1 plaintiff overlooked
the responses of defendant no.1 considering the fact that defendant
no.1 was her foster child. Plaintiff took into account that Mr.Peter
Kingham was emotionally attached to defendant no.1 and therefore,
plaintiff tolerated even the stark changes in the behavior and attitude of
defendant no.1.
12. It is contended that during her employment as teacher of St.Peter
School at Mazgaon, defendant no.1 was apparently quite regular in
attending her job. In fact defendant no.1 would leave the house much
before school times and even returned very late at night. Within almost
six months of defendant no.1’s employment with St.Peter School,
plaintiff was summoned to the office of Principal during the
August/Steptember, 2018. In said meeting with Principal, plaintiff was
straightway informed about association of defendant no.1 with
defendant no.2 who regularly used to drop and pick her to from school
on his Motorcycle on a daily basis. The Principal informed the plaintiff
that defendant no.1 sometimes was behaving with defendant no.2 in a
very inappropriate and intimate manner at the entrance of the school,
setting a very bad influence on students. The Principal also complained
that defendant no.1 was also not showing any interest in teaching and
her professional conduct was found unsatisfactorily. The principal also
reported that defendant no.1 was willfully negligent in her duties and
even indulged in gross subordination as a result of which school
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authorities had no option but to terminate defendant no.1 from services
as a teacher. Plaintiff was shocked to learnt about defendant’s
involvement with defendant no.2. Eventually, St.Peter School by a
letter dated 29/09/2018 terminated services of defendant no.1 but
refrained from mentioning her inappropriate conduct with defendant
no.2. Copy of said letter is annexed to the plaint as EXh.E.
13. It is contended that upon being questioned about her association
with defendant no.2, defendant no.1 initially tried to evade and brush
aside and even denied any contact or relationship with defendant no.2.
Despite being out of teaching job, defendant no.1 would suddenly go
out of the house for long hours without informing her whereabouts.
Plaintiff was also shocked to find in the purse of defendant no.1 some
pockets of condoms and Ipills. When plaintiff demanded clarification
for the objectionable material in the purse of defendant no.1 and about
her long disappearance from the house, defendant no.1 started shouting
and used foul and filthy language against plaintiff, she openly admitted
about meeting with defendant no.2. To the utter shock and surprise of
plaintiff, defendant no.2 made direct telephone call on plaintiff’s
landlord on phone and warned plaintiff not to restrain or prevent
defendant no.1 from going out of house or not to ask any question to
defendant no.1. Therefore, it became evident to plaintiff that defendant
no.1 was constantly meeting with defendant no2 and she is in close
relationship with defendant no.2. Defendant no.1 told that defendant
o.1 is quite capable of independently taking care of herself and plaintiff
has no business to interfere in the personal life of defendant o.1 or
plaintiff has no business to object meeting of defendant no.1 with
defendant no.2.
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14. It is contended that since November,2018 defendant no.1 has got
job for herself with some private Limited Company, M/s.Hinduja Global
Solution at Andheri, Mumbai. Defendant no.1 has not disclosed the
nature of work in new employment. However, defendant no.1 is
working in shift with new company and during her night shifts she
returns only in the mornings. Sometimes under the guise and pretext
of going for job, it was learnt that defendant no.1 has spent most of her
time with defendant no.2. Plaintiff came to know that defendant no.1
is drawing salary of about Rs.45,000/ per month in new company. In
addition to aforesaid salary, defendant no.1 continued to give private
tuitions to students from vicinity, as such aggregate monthly income of
defendant o. is not less than Rs.70,000/. At no point of time, plaintiff
demanded any amount from defendant no.1 from her income nor
defendant no.1 has given any amount to plaintiff. On the contrary
plaintiff has given pocket money to defendant no.1on numerous
occasions. Defendant no.1 is also helping certain amounts lying as
secured for her by Mr.Peter Kingham during his life time under the
terms and conditions of guardianship. Since attaining majority
defendant is independently seized of the monies deposited in her
account. It is alleged that with her substantial independent income and
irregular work shifts in her job, defendant no.1 has started neglecting
home and has been constantly and continuously remaining out with
her friends after finishing her work.
15. It is contended that plaintiff has become quite concerned for
defendant no.1 as defendant no.1 was leaving home early in the
morning and she used to return at very late night hours without giving
any reasons. Plaintiff counseled defendant no.1 with her friends wife
Mrs.Beverly Soans and her friend Mr.Perci D’souza against involving
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defendant no.1 in such frivolous relationship with defendant no.2 and
in the process spoiling her entire life. However, defendant no.1
remained adamant and straight way told plaintiff and her friends to
mind their own business. Plaintiff also tried to find out whether
defendant no.1 would be settling down in life with defendant no.2 but
defendant no.1 herself informing plaintiff that defendant no.2 was not
interested in marrying with defendant no.1. Plaintiff through defendant
no.1 called Mrs.Jumna Lokhandwala, mother of defendant no.2 in her
house to apprise her all the relationship between defendant. Plaintiff
was shocked to know that mother of defendant no.2 was well aware of
said relationship but expressed helplessness stating that both
defendants are adults and quite capable of taking care of themselves.
Mother of defendant no.2 also advise plaintiff to allow defendants to
enjoy life in their own way.
16. It is contended that on one occasion during May2019 plaintiff
had gone to visit a doctor at Andheri. On her return when she opened
the main door she was shocked to find defendant no.2 in her house
along with defendant no.1. On seeing plaintiff defendant no.2 rushed
out of house and while leaving warned plaintiff not to make any issue
of the same else he would tarnish reputation of plaintiff and her family
if plaintiff will dare to inform any one about said incident. Plaintiff
reprimanded defendant no.1 for bringing defendant no.2 in the house
in absence of plaintiff. Later the plaintiff was further shocked to note
that plaintiff’s personal cupboard was forcibly opened, articles and
documents lying therein were of scattered outside. It clearly appeared
that defendant no.1 in collusion with defendant no.2 was searching
certain documents of plaintiff behind her back.
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17. It is contended that since June, 2019, defendant no.2 started
making frequent phone calls on the landline telephone of plaintiff to
somehow demoralize and intimidate plaintiff from dissuading
defendant no.1 from meeting him. It is alleged that defendant no.2
made threatening calls warning plaintiff not to interfere with the
personal life of defendant no.1. Sometimes defendant no.2 made
telephone calls in the middle of the night and when plaintiff would pick
up the phone defendant no.2 would just laugh loudly and disconnect
the line. On 24/07/2019, defendant no.2 telephonically warned
plaintiff that he would be going out with defendant no.1 on next day
and plaintiff should not stop defendant no.1 from going out with him.
Plaintiff informed defendant no.1 about repeated threats and warning
issued by defendant no.2 to her over phone, plaintiff was shocked that
defendant no.1 told that plaintiff deserve it. Defendant no.1 reiterated
plaintiff should stop interfering in the personal life of defendants. In
view of repeated threatening calls, plaintiff started feeling unsecured or
particularly in view of the fact that defendant no.1 was directly acting
against interest of plaintiff at the behest of defendant no.2. It is
contended that on 30/07/2019 plaintiff picked up courage from her
friends and went along with them and lodged NC complaints against
defendants with Nagpada Police Station. Copy of said NC report is
annexed to the plaint as EXh.F.
18. It is contended that after making police complaint, defendants
became openly defiant and aggressive with plaintiff, defendant no.1
stated showering abuses against plaintiff in the house and defendant
no.2 continued to issue threats over landline phone and sometimes on
the mobile phone of defendant no.1. When plaintiff tried to avoid calls
of defendant no.2, defendant no.1 would follow the plaintiff in her
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house with her mobile phone and used to put the speaker of her mobile
phone switched on so that defendant no.2 would threat and warn
plaintiff by using foul and filthy language solely with a view to intimate
demoralize plaintiff. On 15/11/2019 during one such occasion of
defendant no.1 following plaintiff in house and forcing her to listen to
defendant no.2 over speaker of her mobile phone, plaintiff pushed aside
the mobile phone of defendant no.1 away from plaintiff in order to
avoid listening to defendant no.2. Defendant no.1 got furious and took
hard swipe and slapped plaintiff on her face. Plaintiff was too stunned
to bear this shock and could not recover soon from the effect of
unexpected assault of defendant no.1. Plaintiff immediately called her
friends, narrated the incident to them and informed those friends that
she cannot copeup any more with illtreatment meted out by defendant
no.1. Therefore, plaintiff lodged second complaint in the Napdada
Police Station on the same day. Copy of said complaint is annexed to
the plaint as EXh.G.
19. It is contended that defendants were summoned to local police
station for inquiry into the complaint lodged by plaintiff, defendant
no.1 mislead police to believe that defendant no.1 is adopted daughter
of plaintiff and defendant no.1 was having her share in the house by
virtue of her adoption by plaintiff’s husband late Mr.Peter Kingham.
Defendant no.1 insted made false accusation against plaintiff of ill
treatment and interfering in her life. Defendant no.2 stated that he
made a phone call to plaintiff by mistake and defendant no.2 informed
police that he was going to get married with defendant no.1, however
plaintiff was creating obstacles and hindrances. Therefore, police did
not record proper details of plaintiff’s complaint and directed plaintiff to
take recourse to law being a family matter and police merely registered
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NC complaint.
20. It is contended that defendants quite emboldened by refusal of
police to take action against them on the complaint of plaintiff.
Thereafter, defendant no.1 is always attempting to dominate plaintiff
and even approaches menacingly towards plaintiff in the case plaintiff
questions defendant no.1 or object some of her actions. It is alleged that
defendant no.1 has made duplicate keys of the house and the cupboard
belonging to plaintiff and defendant no.1 has often declaring the
plaintiff that defendants are waiting for plaintiff to die soon and after
that they would take over the entire house and property of the plaintiff.
Defendant no.1 also advised plaintiff to stay in some old age home and
she promised that she would pay monthly payments. It is alleged that
defendants often tease and ridicule plaintiff that defendants would
marry and stay together in the house of plaintiff after her death. In
order to make plaintiff’s light miserable defendant no.1 entered into
unnecessary confrontation with plaintiff and shower with choicest
abusing filthy language together with defendant no.2 over the phone in
order to keep plaintiff under constant intimidation and fear. On petty
issues defendants never leave any chance to abuse plaintiff and cause
mental anguish, harassment and torture to demoralize her. Defendant
no.1 does not bother to look after her belongings thrown randomly in
her house and plaintiff is compelled to do housekeeping, cooking meals,
washing clothes and other household work for defendant no.1.
21. It is contended that due to continues illtreatment at the hands of
defendants it has become difficult for plaintiff to stay with defendant
no.1 in suit premises. At every available opportunity defendants are
interfering with the life of plaintiff and threatening her to act as per the
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dictates and commands of defendant no.2. In fact plaintiff is living
under constant fear and danger to her life at the hands of defendants
and she is not able to reside in her own house. Plaintiff is compelled
sometime to call her friends Mrs.Irene D’souza who is residing in the
vicinity to stay with plaintiff during the night on account of plaintiff’s
fear and apprehension that defendants would cause physical harm and
injury to plaintiff to get rid of her and thereby usurp suit premises. It
appears that defendant no.2 with his clout and influence has managed
the police who are not responding complaints lodged by plaintiff
against defendants. It is contended that at this stage of life plaintiff has
been subjected to gross mental torture and harassment by defendants
and there is no movement of peace for plaintiff in her own house.
22. It is alleged that defendant no.1 has become ungrateful child
brought up by plaintiff and her late husband Mr.Peter Kingham
particularly through close association and relationship of defendant
no.1 with defendant no.2. It is alleged that defendant no.1 is causing
plaintiff immense miseries and nuisance, even otherwise plaintiff was
never appointed the guardian of defendant no.1 under the orders of the
Court. Defendant no.1 also is not adopted daughter of plaintiff and
therefore, plaintiff is not bound and liable moral or legal to look after
interest of defendant no.1 in any manner and under the change facts
and circumstances under which defendant no.1 is nursing the idea to
put plaintiff in an old age home and thereby removed plaintiff from her
own house in collusion with defendant no.2.
23. It is contended that suit premises is exclusively belonging to
plaintiff. Defendant no.1 being foster child of plaintiff has no
independent right, interest and/or possession to reside in suit premises
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except with the express permission of plaintiff. On account of constant
threats and illtreatment meted out to the plaintiff at the hands of
defendants, plaintiff has been compelled and constrained to withdraw
the permission to defendant no.1 to remain in the suit premises along
with plaintiff. It is contended that plaintiff does not feel safe and
secured any more and there is constant threat by defendants.
Therefore, it has become extremely danger to reside in suit premises
with defendant no.1 whilst defendant no.2 is extending repeated threats
and warnings to cause bodily harm and injury to her. It is contended
that plaintiff desirous to leave peacefully remaining of her life without
any interference and disturbance whatsoever from any of the defendant.
It is contended that in above circumstances, situation has gone
completely out of control of plaintiff due to high handedness and
threats of defendants on virtually daily basis, it has become unbearable
for plaintiff therefore, plaintiff is entitled to permanent injunction as
well as temporary injunction.
24. Defendant no.1 has filed affidavit of reply and resisted notice of
motion. It is contended that sort affidavit is filed for the adinterim
relief and defendant no.2 was intending to file additional affidavit of
reply dealing with contents of the plaint. Meanwhile nothing from
pleadings should be considered as admitted by defendant no.1. It is
contended that contentions raised in the plaint be treated as
specifically denied. It is admitted that defendant o.1 has been residing
at suit premises since past 25 years, Aadhar Card PAN card, bank
statements, Domicile Certificate etc. of defendant no.1 bear the addres
of suit premises and as such she has been in uninterrupted, peaceful,
settle use, occupation and possession of suit premises to the knowledge
of plaintiff since childhood of defendant o.1 and same cannot be
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disturbed by granting reliefs as prayed in the notice of motion.
Because reliefs prayed in the notice of motion are in the nature of
mandatory inuncstion against defendants. It is settled law that for grant
of order for mandatory injunction a case higher than prama facie case is
required to be made out. Further such an order should only be granted
to prevent irreparable loss and injury which cannot be compensated in
mandatory terms. It is contended that plaintiff has not made out any
such case.
25. It is contended that it is equally settled that interim reliefs which
amount to grant of final reliefs in the suit should not be granted and
balance ought to be maintained at interim stage to protect interest of all
the parties. Same is imperative especially in the facts and circumstances
of present case considering the close relationship of the parties. It is
contended that plaintiff is seeking grant of final relief at interim stage.
If such relief would be granted it would be as if the entire suit is
decreed in favour of plaintiff, hence plaintiff has failed to establish the
extreme hardship and court at final hearing would not be in a position
to vindicate the cause of justice presuming the suit is decreed in favour
of the plaintiff. Defenant in her reply placed reliance on case between
Deoraj V/s. State of Maharashtra (2004)4 SCC 697 in which it is
observed that…
Situation emerge the granting of an interim relief would
tantamount to granting final relief itself. And then there
may be converse cause where withholding of an interim
relief would tantamount to dismissal of main petition
itself; for, by the time the main matter comes up for
hearing there would be nothing left to be allowed as relief
to the petitioner though all the finding may be in his
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favour. In such cases the availability of a very strong
prima facie case – of a standard much higher than just
prima facie case, the consideration of balance of
convenience and irreparable injury forcefully tilting the
balance of case totally in favour of applicant may persuade
the Court to grant an interim relief though it amounts to
granting the final reliefs itself. Of course, such would be
rare and exceptional cases. The Court would grant such an
interim relief only if satisfied that withholding of it would
prick the conscience of the Court and do violence to the
sense of justice, resulting in justice being perpetuated
throughout the hearing, and at the end the court would not
be able to vindicate the cause of justice. Obviously, such
would be rare cases accompanied by compelling
circumstances, where the injury complained of is
immediate and pressing and would cause extreme
hardship. The conduct of the parties shall also have to be
seen and the court may put the parties on such terms as
may be prudent”.
It is also observed that…
“that the final relief could not be granted at interim
stage, who is set aside the impugned order and fact interim
order passed by the High Court”.
26. Defendant no.1 has also cited the case between
Maharashtra Jeevan Pradhikaran and another V/s. Lark
Construction Pvt. Ltd., 2005(1) ALL MR 479, in which it is
observed that
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“Having her rival parties, it is needless to mention that
interim injunction is issued to maintain statusquo existing
at the time of institution of the proceeding. The real point
which has to be decided, when an application for stay or
for temporary injunction is made, whether the subject
matter of the suit needs to be preserved. Interim
injunction is not be granted by way of final relief at the
interlocutory stage……”
27. It is contended that it is plaintiff’s own case that cause of
action to file this suit arose in October, 2019 and plaintiff has
filed this suit on 02/01/2020 and hence on account of delay itself
the reliefs as sought by plaintiff cannot be granted. It is
contended that this Court has no jurisdiction to grant relief to
defendant as relief of eviction is sought under the provisions of
Maintenance and welfare of Parents and Senior Citizen Act 2007
and U/s.27 of the Act the jurisdiction of Civil Court is expressly
barred to entertain any matter to which any provision of said act
applies, hence this Court is barring from granting an order of
injunction. It is contended that defendant no.1 vehemently
disputed and denied that suit premises was independently
acquired by plaintiff and she is exclusive tenant thereof since
prior to 1970. It is contended that the existence and contents of
any alleged old rent receipt is disputed and denied by defendant
no.1, the rent of receipt of December, 1993 produced by plaintiff
shows that it bears a rubber stamp and signed and has been
acknowledgement on 19/01/2019 and not in 1993. Similarly,
flat charges receipt appears to be interpolated and reflects the
date of 09/01/1999. It is contended that as per knowledge of
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defendant no.1, plaintiff’s name is substituted on rent receipt of
suit premises after demise of father of defendant no.1 who was
entitled to tenancy right in respect of suit premises and was
meeting all expenses in relation thereto including rent. It is
contended that U/s.7(15)(d) of Maharashtra Rent Act, defendant
no.1 is also entitled to joint tenancy rights in respect of suit
premises along with plaintiff being a person residing at suit
premises as a family member at the time of demise of father of
defendant no.1. It is denied that defendant no.1 have been
granted mere permissive use to suit premises. It is contended
that there exists a tenancy dispute between plaintiff and
defendant o.1 who are both entitled to tenancy rights in respect
of suit premises. Such a dispute can only be adjudicated by Small
Causes Court and hence this Court has no jurisdiction to
adjudicate the dispute between the parties.
28. It is denied that during lifetime of Mr.Peter Kingham a law
permitting Christian to adopt had not been passed and the
undertaking given to Hon’ble High Court could not be complied.
It is contended that the provisions of Juvenile Justice(Court and
Protection of Children) Amendment Act, 2006 permitted
adoption irrespective of religion and thus the undertaking given
by late Mr.Peter Kingham was complied and adoption of
defendant no.1 was given effect to and therefore he should be
treated as an adopted daughter of Mr.Peter Kingham and plaintiff
for all purposes.
29. It is contended that the complaints referred in the plaint
are false hence denied. It is also denied that defendant no.1 ill
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treated and assaulted plaintiff or threatened of physical harm or
torture to plaintiff. It is contended that the allegations are
belatedly levied to create imaginary cause of action. Because
plaintiff may no longer consider defendant no.1 as her daughter,
still defendant no.1 considers plaintiff as her mother therefore,
defendant no.1 has never illtreated or will never illtreat or
cause any physical or mental harm or injury to plaintiff. It is
contended that it is also apparent from the fact that the dispite
having opportunities in the past, defendant no.1 did not take her
relationship forward with defendant no.2 on account of plaintiff’s
disapproval.
30. It is contended that plaintiff is habituated in having petty
disagreements and thereby he is not getting along with most of
her relatives. Plaintiff is not even on talking terms with her own
parents for reasons unknown to plaintiff. Hence, according to
defendant no.1, allegations made by plaintiff against defendant
no.1 are necessary to be proved by evidence. It is contended that
on perusal of plaint, it becomes clear that plaintiff seeks to evict
defendant no.1 from suit premises for disapproval of choice of
life partner of defendant no.1 who belongs to different religion.
Now this reservation of plaintiff has been done away with. Since
several weeks, defendant no.1 is not in contact with defendant
no.2 and her relationship with defendant no.2 has ended to the
knowledge of plaintiff. It is contended that defendant o.1 always
informed plaintiff about association of defendant no.1 with
defendant no.2, but plaintiff did not approve the same. It is
contended that on account of plaintiff’s approaching the police
and to the Court, defendant no.2 has shown his true colours and
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made it abundantly clear to defendant nor that he does not want
to associate himself with defendant no.1 and plaintiff and as such
now defendant no.1 is in unfortunate position where plaintiff has
no love or compassion for defendant no.1 and seeks to abandon
to defendant no.1. Hence, according to defendant no.1 no cause
of action arose to grant relief against defendant no.1.
31. It is contended that defendant no.1 has lost job and barely
earns Rs.15,000/ per month from tuition. It is contended that at
this precarious time if defendant no.1 deprived of a roof, grave
prejudice or loss would be caused to her for no real fault on her
part. On the contrary, no prejudice will be caused to plaintiff if
defendant no.1 will be permitted to continue residing at the suit
premises till the disposal of the suit. It is contended that petty
tiffs are a part of every family and such household work related
squabbles even if considered at their highest do not remotely
merit the harsh relief of eviction as sought by plaintiff against
defendant no.1.
32. It is contended that relationship between defendant no.2
and defendant no.1 had nothing to do with being relieved from
job of defendant no.1 at St.Peters School as falsely alleged in the
plaint. It is contended that defendant no.1 did not agree with
style and approach of teaching practice at the school and was
vocal about her dis agreement with the same, this was not
appreciated and she was relieved from her duties as a teacher. It
is denied that defendant no.1 made duplicate keys of flat and
cupboard of plaintiff or ever forcibly opened it without
permission of plaintiff. It is denied that in May, 2019 defendant
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no.1 was found with defendant no.2 in suit premises in absence
of plaintiff, hence according to defendant no.1 further allegations
about threat by defendant no.2 are false. It is alleged that the
story of the month of May, 2019 is nothing but the cock and bull
story and the result of fertile imagination of plaintiff or her
advisors to show defendants in poor light and to fabricate a cause
of action. It is contended that plaintiff has made allegations to
snatch favourable orders from the Court. It is contended that
defendant no.1 has utmost respect and love for plaintiff and for
her deceased father Mr.Peter Kingham and defendant no.1 is
grateful for the life they have given to defendant no.1 hence she
never use filthy language or abuse to plaintiff in her presence or
absence. It is contended that it has never come in the mind of
defendant no.1 that plaintiff should move to an old age home and
allegations to that effect are denied by defendant no.1. It is
contended that in fact until defendant no.1 had a job, till last year
she was paying sum of Rs.10,000/ per month to plaintiff to meet
rent, electricity and other basic household expenses and it
appears that it is only since plaintiff intended to file this false suit,
she stopped accepting monthly compensation from December,
2019. It is denied that plaintiff was paying pocket money from
defendant no.1. It is contended that plaintiff has every right to
stay in the suit premises just as defendant no.1 and defendant
no.1 has no intention of displacing plaintiff from suit premises
irrespective of plaintiff. Seek to unlawfully garb the suit premises
and evict defendant no.1 from suit premises. With the help of
those contention defendant no.1 has prayed to dismiss the notice
of motion.
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33. Heard plaintiff’s advocate Mr.R.M.Vanu and defendants’
advocate Mr.Sahil Sayyed at length. Plaintiff’s advocate referred
the copies of rent receipts and maintenance bill payment
receipts annexed to the notice of motion. Plaintiff’s advocate
also referred the copies of telephone bills and the copy of order
dated 11/10/1995 passed by Hon’ble High Court in Indian
Guardianship Petition NO.113/1995. In said order it is observed
that Mr.Peter Kingham is granted leave to remove minor from the
jurisdiction of Hon’ble High Court and to take her away wherever
he may desire. While passing said order, Hon’ble High Court was
pleased to direct to Mr.Peter Kingham to file undertaking to
adopt the minor child in the event of any law being passed
permitting Christian to adopt children and upon Mr.Peter
Kingham through his advocate gave the further undertaking to
Hon’ble High Court that he will deposit Rs.10,000/ within two
weeks from said order in the name of the minor in Unit Trust of
India Scheme of children Gift Growth Fund 1986 for the period
till the said minor attain majority and further undertaking by
Mr.Peter Kingham neither he nor his wife shall withdraw or any
amount from said deposit and in the event of said scheme of Unit
Trust of India being for any reasons discontinued. Mr.Peter
Kingham will approach the Hon’ble High court taking up
adoption matters for further direction in the matter of aforesaid
investment. Plaintiff’s advocate strongly argued that in view of
the order of Hon’ble High Court Mr.Peter Kingham was guardian
of defendant no.1 Ms.Rebacca Kingham and after death of
Mr.Peter Kingham, plaintiff has merely permitted defendant no.1
to reside in suit premises. Plaintiff’s advocate argued that in the
lifetime of Mr.Peter Kingham adoption of defendant no.1 has not
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taken place and hence defendant no.1 is not adopted daughter of
Mr.Peter Kingham and plaintiff. It is also pointed out that
defendant no.1 has become major and now she is of 28 years, she
is having her own income as she is serving with the Company and
she is giving private tuitions to students. Plaintiff’s advocate
argued that at the instance of defendant no.2, defendant no.1 is
intending to dispossess plaintiff from suit premises even though
defendants have no concern with suit premises, hence according
to plaintiff’s advocate notice of motion is necessary to be made
absolute. Plaintiff’s advocate has placed reliance on following
case laws.
34. Defendant’s advocate submitted that plaintiff cannot evict
defendant no.1 from suit premises by claiming interim relief in
the notice of motion. It is argued that defendant no.1 is foster
daughter of plaintiff, hence she cannot be evicted from suit
premises unless the allegations made in the plaint are proved on
merits.
35. Perused the copies of documents annexed to the plaint. In
view of the copies of rent receipts and maintenance bills of suit
premises filed on record, it becomes clear that plaintiff is
possessing suit premises as tenant and defendant no.1 is not
having tenancy rights.
36. It is pertinent to note hear that after death of Mr.Peter
Kingham, plaintiff has allowed defendant no.1 to reside in suit
premises along with plaintiff. Not only it, plaintiff after death of
Mr.Peter Kingham has taken care of defendant no.1 and even she
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has tried for the fact that defendant no.1 should have the training
of the education for getting the job of teacher. Thus, even though
defendant no.1 is not the real daughter or defendant no.1 is not
adopted daughter of plaintiff, defendant no.1 was allowed by
plaintiff to occupy suit premises as foster daughter of Mr.Peter
Kingham. As such possession of defendant no.1 over suit
premises is the permissive possession. It can be said that
possession of defendant no.1 over suit premises is not perfectly
legal but as it is permissive possession, defendant no.1 cannot be
simply thrown away from suit premises. Plaintiff has contended
that after dispute between plaintiff and defendant no.1, plaintiff
has withdrawn her permission to allow defendant no.1 to reside
in suit premises or she has withdrawn the permission given to
defendant no.1 for occupying suit premises with plaintiff. There
is no document on record to show that plaintiff has withdrawn
such permission and asked defendant no.1 to use suit premises.
It was expected that plaintiff should have issued a legal notice
informing defendant no.1 that plaintiff has withdrawn her
permission for occupying suit premises by defendant no.1 without
any right. Further, plaintiff has taken care of defendant no.1 as
like the daughter of plaintiff. Plaint shows that age of defendant
no.1 is sole as 28 years, hence defendant no.1 is young batcher
lady and if she will be thrown on the road with the help of Court
order that also without any notice by plaintiff to defendant prior
to filing of this suit, it may create serious problem with defendant
no.1. Admittedly, plaintiff is senior citizen lady and defendant is
young bachelor lady, respect of both the ladies is necessary to be
maintained and care is necessary to be taken so that none of
them will be required to suffer from difficulties. Already matter
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was sent for settlement between the parties. Unfortunately, they
could arrive at settlement. Meanwhile, due to Corona epidemic
both the plaintiffs and defendant no.1 due to lockdown may
have understood the seriousness of the like and they might have
tried to copeup with each other. In such circumstances, if
defendant no.1 will come on road without any prior notice sent
by plaintiff, it may create serious problem. In such circumstances,
I find that defendant no.1 cannot be restrained from entering into
suit premises unless defendant no.1 is evicted legally. However,
it is not expected from defendant no.1 that defendant no.1 should
take benefit of old age of plaintiff and defendant no.1 should not
think to create her rights into suit premises. It is also expected
defendant no.1 should not abuse, harass or create apprehension
about the danger to life in the mind of plaintiff. In such
circumstances, if after this order plaintiff will file report with
police about the harassment at the hands of defendant no.1,
police should make detail inquiry and if found necessary should
register the crime against defendant no.1. In my opinion, this will
suffice the purpose and will protect the respect and interest of
both the ladies i.e. old age plaintiff and young lady defendant
no.1.
37. Admittedly, defendant no.2 was a boyfriend of defendant
no.1. Further admittedly, defendant no.1 being Christian and
defendant no.2 being Momedian are from different religion. In
such circumstances, unless there is marriage with understanding
between them it will not be proper to enter into suit premises and
to harass plaintiff with the intention to pressurize her to allow
defendant no.1 to marry with defendant no.2. In her reply,
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defendant no.1 has raised the defence that due to the filing of
report by plaintiff with police, already defendant no.2 has shown
has true colours and now defendant no.2 is avoiding defendant
no.1, hence now there is no possibility of reunion of friendship
between defendants. As such defendant no.2 admittedly has no
right in suit premises, he has no concern with the family of
plaintiff and plaintiff has apprehension that defendant no.1 at the
instance of defendant no.2 is trying to create right in suit
premises. Therefore, I find that it is necessary to restrain
defendant no.2 from entering into suit premises till the disposal
of this suit. For all above reasons, I find that NM is necessary to
be partly allowed against defendant no.2 and it is necessary to be
dismissed against defendant no.1. For all above reason I find that
plaintiff has filed in making out prima facie case against
defendant no.1 and balance of convenience does not lie in favour
of plaintiff at least in respect of defendant no.1. However,
plaintiff has made out prima facie to grant temporary injunction
against defendant no.2, plaintiff being the tenant in suit premises,
if defendant no.2 will enter into suit premises without any right it
may cause inconvenience to the legal rights of plaintiff.
Considering this aspect of inconvenience which may caused to the
plaintiff, on rejection of the NM against defendant no.2, I find
that balance of convenience lies in favour of plaintiff against
defendant no.2. Further, if defendant no.2 will cause obstruction
into plaintiff's possession over suit premises or if defendant no.2
will enter into suit premises without any legal right, definitely the
valuable right of plaintiff in respect of enjoyment of suit premises
as a tenant will come into danger and damage to legal right
cannot be compensated in terms of money. As such, plaintiff will
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suffer from irreparable loss is not cannot be compensated in
terms of money, if the temporary injunction as prayed will not be
granted against defendant no.2. As such, plaintiff has made all
the three essential ingredients for granting temporary injunction
against defendant no.2, however as already observed plaintiff has
failed in making out the case for temporary injunction against
defendant no.1. If the injunction against defendant no.1 will be
granted for restraining her to enter into suit premises, it will
amount grant decree without any opportunity to parties to prove
their rival contentions on merits by adducing cogent evidence.
For all above reasons, I proceed to pass following order.
ORDER
1. NM No.211/2020 is made absolute in terms of prayer
clause(b) against defendant no.2 only.
2. NM stands dismissed against defendant no.1.
Sd/
(K.P.NANDEDKAR)
24/06/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 24/06/2020
Transcribed on : 08/07/2020
Signed by HHJ on : 15/08/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
Mr. B. R. Hatekar
Name of the Judge Hhj shri K.P. Nandedkar
Date of Pronouncement of
Judgement/Order.
24/06/2020
Judgement/order signed by P.O on
Judgement/order uploaded on 15/09/2020
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