Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM 59719 IN S.C. SUIT 233319
MHCC010015362019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 597 OF 2019
IN
S.C. SUIT NO.2333 OF 2019
Mrs. Kusum Nitin Mhatre ] ...Plaintiff.
Versus
The Superintendent, Women
And Child Development Department,
Women Rehabilitation Centre,
Chembur, Mumbai 400 071. ]…Defendant.
Appearance:
Ld. Advocate Sachin Kanojia for Plaintiff.
Ld. Advocate Sachin Kadam for Defendants.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 27/1/2023
ORAL ORDER
1) Plaintiff has taken out present notice of motion for interim relief of
temporary injunction restraining defendant from releasing retirement
benefits/dues of Smt. Kamini Kashinath Patil in favour of any other
person except plaintiff.
2) Perused the notice of motion, affidavit in support of notice of
motion, affidavit in reply and written statement of the defendant,
affidavit in rejoinder of plaintiff and record. Heard arguments advanced
by Ld. Advocate for plaintiff and Ld. Advocate for defendant.
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3) Ld. Advocate for plaintiff argued that plaintiff is real sister of Smt.
Kamini Kashinath Patil @ Janabai Balaram Mhatre. Smt. Kamini
Kashinath Patil was working as a probation officer in the office of
defendant and she voluntarily retired on 4/3/18. Smt. Kamini Kashinath
Patil expired on 23/9/18. Smt. Kamini Kashinath Patil had nominated
plaintiff as her nominee for receiving the retirement benefits and pension
after her death. Being real sister and nominee of Smt. Kamini Kashinath
Patil plaintiff is entitled to get the retirement benefits of deceased Smt.
Kamini Kashinath Patil. Husband of Kamini Kashinath Patil by name of
Kashinath Patil was residing separate since last more than 15 years and
therefore, there was no relation of husband and wife between Smt.
Kamini and Mr. Kashinath Patil. Therefore, Mr. Kashinath Patil has no
right and interest in the retirement benefits and pension of the deceased
Smt. Kamini Kashinath Patil. However, at the false and frivolous
objection raised by Mr. Kashinath Patil, defendant refused to release
retirement benefits and pension in favour of plaintiff. Mr. Kashinath Patil
may approach the defendant for release of retirement benefits and
pension of Smt. Kamini Kashinath Patil. Prima facie case and balance of
convenience lie in favour of plaintiff. Therefore, Ld. Advocate for plaintiff
prayed that notice of motion be made absolute.
4) On the other hand, Ld. Advocate for defendant argued that as per
Rule No.111 (5) of Maharashtra Civil Services (Pensions Rule 1982) the
meaning of term 'family' in relation to female Government servant means
husband, sons, step sons, daughter, step daughter, unmarried daughters,
widow daughters, brother below age of 18 years and unmarried sisters,
etc. Expression 'family' in relation to Government servant for the purpose
of Rule No.111, 112, 114 and 115 does not include married sisters. It is
not the case of plaintiff that marriage between Smt. Kamini Kashinath
Patil and Mr. Kashinath Patil was dissolved by decree of divorce.
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Nomination for Death cum retirement gratuity and for pension cannot be
in favour of person who is not member of family of a Government
servant. Therefore, as Smt. Kamini Kashinath Patil was having family
nomination in favour of the plaintiff who is married sister if any is not
valid. Therefore, plaintiff is not entitled for the residue retirement
benefits and family pension of deceased Kamini Kashinath Patil. Hence,
Ld. Advocate for defendant submitted that notice of motion be dismissed.
5) Following points arise for determination and court has recorded its
decision thereon for the reasons stated thereunder.
Points Decision
1) Whether prima facie case lies in favour of
plaintiff ?
No.
2) Whether balance of convenience lies in favour of
plaintiff ?
No.
3) Whether plaintiff will suffer irreparable loss if the
interim relief prayed are not granted?
No.
4) What Order? As per final
order.
REASONS
As to Point Nos. 1 to 3:
6) As all these points are interconnected with each other, they are
decided simultaneously in order to avoid repetition of facts.
7) In the present matter admittedly Smt. Kamini Kashinath Patil was
employed as probation officer in the defendant's office and she
voluntarily retired on 03/04/18. Admittedly, amount of Rs.2,55,291/
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towards balance leave encashment remained to be paid to Smt. Kamini
Kashinath Patil due to her death. Admittedly, Kashinath Patil is the
husband of deceased Kamini Kashinath Patil. It is also not the case of
plaintiff that marriage between Smt. Kamini Kashinath Patil and Mr.
Kashinath Patil was dissolved by decree of competent court. Moreover,
plaintiff is the married sister of the deceased Smt. Kamini Kashinath Patil.
8) Rule 111(5) of the Maharashtra Civil Services (Pension Rule 1982)
defines the term 'family' in case of female Government servant means
husband including judicially separated husband, sons, step sons, adopted
sons, daughters, married daughters, widowed daughters, father, mother,
brothers below age of 18 years, unmarried sisters, widowed sisters and
children of deceased son. As such prima facie plaintiff does not come
within meaning of term 'family' as provided in Rule 111(5) of
Maharashtra Civil Services (Pension Rule 1982). On the other hand, Mr.
Kashinath Patil who is the husband of deceased Kamini Kashinath Patil
prima facie comes within expression of 'family'. As per proviso to Rule
115 of Maharashtra Civil Services (Pension Rule 1982) it is provided that
if at the time of making the nomination the Government servant has a
family the nomination shall not be in favour of any person or persons
other than member of his family. In the present matter admittedly
deceased Kamini Kashinath Patil was having family at the time of making
nomination and while submitting her application for voluntary
retirement. Therefore, prima facie it appears that the nomination if any in
the name of the plaintiff made by deceased Kamini Kashinath Patil at the
time of submitting her application for voluntary retirement is not valid.
Therefore, from the matter on record and above discussion prima facie
plaintiff does not appear to be entitled for receiving the remaining
retirement benefits/pension of deceased Kamini Kashinath Patil. As such
prima facie plaintiff is not having any right or interest in the unpaid leave
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encashment amount and pension of the deceased Kamini Kashinath Patil.
Therefore, prima facie case does not lie in favour of plaintiffs. Moreover,
considering the matter on record and above discussion and fact that the
family member of deceased Kamini Kashinath Patil i.e. her husband is
alive, balance of convenience also does not lie in favour of plaintiff.
Moreover, as the monetory reliefs are claimed prima facie no irreparable
loss is likely to be caused to the plaintiff if the interim relief of temporary
injunction as sought is not granted.
9) Considering the matter on record and above discussion, there
appear no serious bonafide question which requires adjudication in the
present matter. From the matter on record and above discussion court
hold that prima facie case and balance of convenience does not lie in
favour of plaintiff and plaintiff is not likely to suffer irreparable loss if the
interim relief and temporary injunction as sought is not granted.
Therefore, point Nos. 1 to 3 are answered in negative.
As to point No.4:
10) In view of negative decision as to point Nos. 1 to 3 present notice
of motion is liable to be dismissed. Hence, court proceeds to pass the
following order :
ORDER
1) Notice of Motion No. 597 of 2019 is dismissed.
2) Notice of Motion No. 597 of 2019 is disposed off accordingly.
Date : 27/1/2023. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :27/1/2023.
Typed on : 27/1/2023.
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Draft received on:30/1/2023.
Checked on :31/1/2023.
Corrected & signed on :31/1/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
4/2/2023 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
27/1/2023.
JUDGMENT/ORDER signed by P.O.
on
31/1/2023.
JUDGMENT/ORDER uploaded on 4/2/2023.
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