Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 277-2020 in SU 2888-2019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.277 OF 2020
(CNR No.MHCC01-000665-2020)
IN
SUIT NO.2888 OF 2019.
(CNR No.MHCC01-011438-2019)
Gajanan Raghunath Joshi }...PLAINTIFF.
Versus
Niranjan Gajanan Joshi and anr. }...DEFENDANTS.
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Shri.Jaywant, learned advocate for the plaintiff.
Shri.Pathak, learned advocate for the defendants.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 31/03/2021)
1. This Notice of Motion is taken out by the plaintiff for
seeking the reliefs as under;
(a) for a temporary order and injunction of this Hon’ble
Court pending the hearing and final disposal of the above suit,
restraining the defendants and the persons claiming through and
under him, from in any manner entering upon and/or remaining
in the suit premises, being Flat No.9, 5th Floor, Takshashila,
B.W.Pathare Marg, Shivaji Park, Dadar, Mumbai-400 028 and/or
disturbing the plaintiffs peaceful use, occupation and possession
of the suit premises in any manner whatsoever.
(b) for a temporary order and injunction of this Hon’ble
Court, pending the hearing and final disposal of the above suit,
restraining the defendants from communicating with the plaintiff
and disturbing him in any manner whatsoever.
2. Read the affidavit filed in support of Notice of Motion and
affidavit in reply filed by the defendants. Heard learned Shri.Jaywant
advocate for the plaintiff and learned Shri.Pathak advocate for the
defendants. Perused the entire record.
3. Following points arose for my consideration. I answered
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those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima facie case is made out by the
plaintiff? ...Yes.
ii) Whether balance of convenience lies in his
favour? ...Yes.
Iii) Whether irreparable loss will cause to the
plaintiff if injunctions as prayed are not granted in
his favour? ...Yes.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that plaintiff is absolute owner of the
suit premises, defendant No.1 is the son & defendant No.2 is the
grandson of the plaintiff, both the defendants are troubling the plaintiff,
defendant No.2 had pushed the plaintiff on the bed because of which,
plaintiff had sustained injury & defendants had not allowed the plaintiff
to give statement before police in respect of the said incident. He
argued that defendants do not have any rights in the suit premises,
plaintiff is aged more than 90 years and he has been constrained by the
defendants to go & temporarily stay at the native place. He argued that
plaintiff has every right to enjoy the suit premises peacefully as it is his
absolute property but on account of the harassment at the hands of the
defendants, plaintiff is finding it difficult to stay in the suit premises
along with the defendants due to which, it is necessary to grant interim
reliefs as prayed in favour of plaintiff by allowing this Notice of Motion.
5. As against this, learned advocate for the defendants argued
that plaintiff has made false allegations in the affidavit filed in support
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of Notice of Motion and those allegations are not supported by any
document. He argued that defendant No.1 was helping the plaintiff in
the business, defendant No.1 is also a senior citizen, there is no material
to show that plaintiff was assaulted and plaintiff had sustained injuries
due to the assault allegedly made by defendant No.2. He argued that
plaintiff is presently residing at native place, plaintiff occasionally
comes to Mumbai to stay in the suit premises, defendants had called the
plaintiff at Mumbai at the occasion of Diwali Festival, defendants have
taken proper care of the plaintiff despite it, plaintiff has filed this false
suit by raising false allegations. He submitted that interim mandatory
injunction as prayed cannot be granted as it will amount to granting of
final relief at interim stage which is not permissible. He argued that
plaintiff is not in possession of the suit premises and on that count also,
plaintiff is not entitled for the interim reliefs. He argued that suit
premises is the only place of shelter for the defendants and if the Notice
of Motion is allowed, defendants will come on road due to which,
Notice of Motion is liable to be dismissed. In support of his argument,
learned advocate for the defendants has placed reliance on the
following authorities.
i)
Matro Marins Vs. Bonus Watch Co.
reported in
(2004)7 Supreme Court Cases 478,
ii)
State of UP Vs. Ram Sukhi Devi
reported in (2005)9 Supreme Court Cases 773,
iii)
State of UP Vs. Sandeep Kumar Balmiki
reported in
(2009)17 Supreme Court Cases 555,
iv)
Mohanbabu Vs. Smt. Radhabai
reported in
2012 SCC OnLine MP 9680.
I have gone through those authorities.
6. In his rejoinder argument, learned advocate for the plaintiff
submitted that there is no bar for granting mandatory injunction at
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interim stage. In support of his argument, learned advocate for the
plaintiff has placed reliance on the following authorities.
i)
Deoraj Vs. State of Maharashtra
reported in
(2004)4 Supreme Court Cases 697,
ii)
Order dtd.06/07/2017 of
Hon'ble Bombay High Court
in
Appeal From Order (St.) No.15201 of 2017
(Prakash Shripad Kelkar Vs. Shripad Ramchandra Kelkar),
iii)
Order dtd.24/11/2016 of
Hon'ble Delhi High Court
in
RSA 136 of 2016 and CM No.19123 of 2016
(Sachin Vs. Jhabbu Lal).
I have gone through those authorities.
7. Legal position which emerges from the ratio laid down in
the authorities cited at the bar by learned advocates for both the parties
may be stated to be that interim mandatory injunction can be granted
only in exceptional cases covered by the exceptions noticed by Hon'ble
Supreme Court in a case of
Dorab Cawasji Warden Vs. Coomi Sorab
Warden reported in
(1990)2 SCC 117 wherein, Hon'ble Supreme Court
has laid down the law as;
The relief of interlocutory mandatory injunctions are thus
granted generally to preserve or restore the status quo of the last
non-contested status which preceded the pending controversy
until the final hearing when full relief may be granted or to
compel the undoing of those acts that have been illegally done or
the restoration of that which was wrongfully taken from the party
complaining. But since the granting of such an injunction to a
party who fails or would fail to establish his right at the trial may
cause great injustice or irreparable harm to the party against
whom it was granted or alternatively not granting of it to a party
who succeeds or would succeed may equally cause great injustice
or irreparable harm, courts have evolved certain guidelines.
Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall
be of a higher standard than a prima facie case that is
normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury
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which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one
seeking such relief.
Keeping in mind the above legal position, it will have to be
seen whether plaintiff is entitled for interim mandatory injunction?
8. Allegations in the plaint, in brief, may be stated to be that
defendant No.1 is the son and defendant No.2 is the grandson of the
plaintiff, suit premises is owned by the plaintiff, defendant No.1 never
understood his responsibility, defendant No.1 always behaves in casual
& cavalier approach, defendant No.1 never gave respect to the plaintiff,
plaintiff used to bear major portion of household expenses, plaintiff
took extra efforts for settling defendant No.2 in life however, defendant
No.2 also started harassing the plaintiff as like defendant No.1. On
account of the behaviour of defendants, plaintiff has been constrained
to temporarily shift to his native place in Ratnagiri District alongwith
his wife and stay in the suit premises becomes nightmare for both of
them. Defendant No.1 has started harassing the plaintiff by giving
threats of committing suicide, defendants did not like the coming of the
plaintiff to Mumbai to celebrate Diwali and when plaintiff was relaxing
in his room on 01/11/2019, he heard a commotion from outside and
saw that defendant No.2 was assaulting his mother and defendant No.1
was instigating defendant No.2. Defendant No.1 abused the plaintiff
when plaintiff tried to intervene, defendants broke the walking stick of
the plaintiff, threw his cell phone on the ground, defendants pushed the
door because of which, plaintiff fell on his bed and got injured.
Defendant No.2 brought a kitchen knife and threatened the plaintiff,
plaintiff was not allowed to give statement before the police and
thereafter, plaintiff had been to his daughter at Goregaon. On account
of the said incident, plaintiff does not want to allow the defendants to
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continue to reside in the suit premises and hence, plaintiff has been
constrained to file the present suit.
9. Defendants have denied all the allegations made by the
plaintiff about causing of his harassment & happening of alleged
incident on 01/11/2019. Defendants have contended that plaintiff has
not given proper description of the suit premises in the plaint due to
which, plaintiff is not entitled for any relief. Defendants have contended
that defendant No.1 was in service, defendant No.1 used to bear
expenses of the household expenses, defendant No.1 was continuously
paying the electricity bill of the suit premises, defendant No.1 has taken
proper care of the plaintiff though plaintiff always gave bad treatment
to defendant No.1, they do not have any other premises than the suit
premises for residence and they will come on road if temporary
mandatory injunction is granted.
10. At the outset, it may be stated here that defendants have
not denied that plaintiff is the owner of the suit premises. In a case of
Sachin Vs. Jhabbu Lal cited above on which reliance is placed by
learned advocate for the plaintiff, Hon'ble Delhi High Court has held
that son has no legal rights to live in the house of the parents and he
can live in the house of the parents only at the mercy of the parents up
to the time the parents allow. It is further held that merely because the
parents have allowed the son to live in the house so long as his relations
with the parents were cordial, it does not mean that the parents have to
bear his burden throughout his life.
11. As mentioned earlier, defendants have not denied that
plaintiff is the owner of the suit premises. Defendant No.1 is the son &
defendant No.2 is the grandson of the plaintiff. Even though they are
residing in the suit premises since last many years, they do not have any
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legal rights in the suit premises as it is the self acquired property of the
plaintiff. They are residing in the suit premises in capacity of relatives
only of the plaintiff and the fact that they are residing in the suit
premises since last many years in itself is not sufficient for accepting
that they have any independent rights in respect of the suit premises.
Contention raised in reply by the defendants that defendant No.1 has
continuously paid the electricity bill of the suit premises is not
supported by any document. Even if said contention of defendants is
accepted for the time being, the payment of electricity bills by the
defendant No.1 will not create any legal rights in his favour in respect
of the suit premises. The fact that plaintiff is presently residing at his
native place is not sufficient for holding that plaintiff is not in
possession of the suit premises because, plaintiff has specifically
contended in the plaint that he has temporarily shifted to his native
place. As defendants have not denied that plaintiff is the absolute owner
of the suit premises, this court is of the opinion that
prima facie case is
made out by the plaintiff that he is owner of the suit premises and
defendants do not have any legal rights in the suit premises.
12. There is substance in the argument of learned advocate for
the defendants that plaintiff has not produced any material in support
of the allegations made in the plaint about causing of his harassment by
the defendants. There is also substance in the argument of learned
advocate for the defendants that there are no averments in the plaint
about causing of any harassment of wife of the plaintiff (mother of
defendant No.1) by either of the defendants. However, the fact remains
that plaintiff has approached the Court against his own son & grandson
for seeking the reliefs of mandatory injunctions against them and hence
even though the allegations made in the plaint about causing of
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harassment of plaintiff by defendants are not supported by any
document, it cannot be given much of importance. This court is of the
opinion that plaintiff has been constrained to approach the court
against the defendants at the age of 90 years only because the
harassment caused by the defendants became intolerable for him.
13. It may be stated here that in
PC Order dtd.29/6/2007 in
Civil Application No.519 of 2007 in
Appeal From Order No.363 of 2007
(Ramgopal Harkishandas Mehra & anr. Vs. Sanjay Ramgopal Mehra &
anr), Hon'ble Bombay High Court is pleased to hold that son has no
independent rights in the property owned by the father & there is
nothing wrong if the parents feel at the age of 70 years that they
should reside in such suit premises peacefully without any harassment
and trouble.
14. In the matter in hands, it does not appear to be the
contention of the defendants that plaintiff has filed this suit at the
instance of anybody including at the instance of the married daughters
of the plaintiff. Plaintiff is aged about 90 years. There are several
allegations in the plaint about the harassment suffered by the plaintiff
at the hands of the defendants including the incident dtd.01/11/2019
and there appears no reason to disbelieve those allegations especially
because, it does not appear to be the contention of the defendants that
suit is the outcome of the instigation given to the plaintiff by anybody
for throwing the defendants out of the house. This court is of the
opinion that there is nothing wrong if the plaintiff at the age of 90
years is feeling that he should reside in the suit premises, which is his
self acquired property, peacefully with his wife without any harassment
and trouble at the hands of the defendants.
15. Having regards to those aspects, this court is of the opinion
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a strong
prima-faice case and balance of convenience both do lie in
favour of the plaintiff. Learned advocate for the defendants submitted
that allowing the Notice of Motion will amount to granting of final relief
at interim stage in favour of the plaintiff. As is laid down by Hon'ble
Apex Court, the relief of interlocutory mandatory injunctions are
granted generally to preserve or restore the status quo of the last non-
contested status which preceded the pending controversy until the final
hearing when full relief may be granted or to compel the undoing of
those acts that have been illegally done. Here, in the matter in hands,
defendants have not denied that plaintiff is the owner of the suit
premises. As mentioned earlier, plaintiff has approached the court only
when the harassment at the hands of defendants became intolerable for
him. This court is satisfied that if temporary injunctions as prayed are
not granted in favour of the plaintiff, the illegal acts of defendants to
harass the plaintiff will go on and plaintiff will be unable to use his own
property peacefully which will cause an irreparable loss to the plaintiff.
For all these reasons, holding that plaintiff is entitled for the reliefs
claimed, I answered point Nos.(i) to (iii) accordingly & pass the
following order.
O R D E R
Notice of Motion No.277 of 2020 is made absolute in terms
of its prayer clauses (a) and (b).
Date : 31/03/2021. (P.P.RAJVAIDYA)
Dictated on : 31/03/2021. Judge, C.R.No.9,
Checked on : 31/03/2021. City Civil Court,
Signed on : 31/03/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
05.04.2021 at 4.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 31/03/2021.
Order signed by P.O. on 31/03/2021.
Order uploaded on 05/04/2021.
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