Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 704-2020 in SU 276-2020
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.704 OF 2020
CNR No.MHCC01-001856-2020)
IN
SUIT NO.276 OF 2020.
(CNR No.MHCC01-000130-2020)
Ramasare Pancham Yadav }...PLAINTIFF.
Versus
Sonam Kirt Kumar Yadav and Ors. }...DEFENDANTS.
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Shri.A.K.Singh, learned advocate for the plaintiff.
Shri.S.P.Yadav, learned advocate for defendant No.1.
Shri.M.S.Singh, learned advocate for defendant Nos.2 and 3.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 08/11/2021)
1. By filing this Notice of Motion, plaintiff has claimed relief
as under;
a. That pending the hearing and final disposal of the suit, the
defendants be restrained by an order of temporary injunction
restraining the defendants, their servants, agents, person or persons in
any manner dealing with possession and/or creating any third party
right in respect of the suit premises and not to dispossess the plaintiff
and his wife from the suit premises viz., Room No.106, C-Wing,
Vidyavihar Jaiprakash Nagar Co-Op. Hsg. Society Ltd., Jaiprakash
Nagar, 7th Road, Vidyavihar(E), Mumbai-400 077 admeasuring area 225
sq. ft. and defendant Nos.1 & 2 may be directed to remove themselves
from the suit premises.
2. Read the affidavit filed in support of Notice of Motion and
reply. Heard learned Shri.A.K.Singh advocate for the plaintiff and
learned Shri.M.S.Singh advocate for defendant Nos.2 and 3. I have gone
through the written notes of arguments filed by advocates for plaintiff,
defendant No.1 and defendant Nos.2 and 3. 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 ? ...No.
ii) Whether balance of convenience lies in his
favour? ...No.
iii) Whether irreparable loss will cause to the
plaintiff if interim injunction as claimed is not
granted? ...No.
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 the exclusive owner of
the suit premises, defendant No.1 is the daughter-in-law of the plaintiff,
defendant Nos.2 and 3 are sons of the plaintiff and defendants have no
rights in the suit premises. He argued that defendant Nos.1 and 2 were
residing at the native place in the State of Uttar Pradesh alongwith their
two children but defendant No.1 came to Mumbai in year 2019 with her
two children and started residing in the suit premises on instigation
given by her brother. He argued that defendant No.1 has filed a false
case under Domestic Violence Act against the plaintiff and other family
members and she has obtained
ex-parte interim order in the said matter
behind back of the plaintiff. He argued that plaintiff is heart-patient and
is suffering from various ailments, defendant No.1 frequently raises
quarrels with the plaintiff by raising abuses and gives threats that she
will implicate the plaintiff in false rape case and other criminal cases.
He argued that suit premises is a small room wherein, only two persons
can reside properly, defendant No.2 is ready to stay separately with
defendant No.1 in some other rented premises but defendant No.1 is
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not ready for the same. He argued that defendants have no right of
whatsoever nature in the suit premises, plaintiff is entitled to use the
suit premises peacefully hence, Notice of Motion may be made absolute.
5. Learned advocate for defendant Nos.2 and 3 submitted that
defendant Nos.2 and 3 have no objection to allow the Notice of Motion.
6. On behalf of defendant No.1, it is submitted that suit
premises is the shared household of defendant No.1, she has no
alternate place for residence for herself and for her minor children,
learned Metropolitan Magistrate has already passed interim order in her
favour and this Notice of Motion is taken out only to defeat the order
passed by the learned Metropolitan Magistrate. It is submitted that suit
itself is not maintainable, injunction of such type cannot be granted
under Section 41 of the Specific Relief Act and defendant No.3 is not
necessary party to the suit. It is submitted that Notice of Motion is liable
to be dismissed.
7. It is not in dispute that defendant Nos.2 and 3 are the sons
of the plaintiff, defendant No.1 got married to defendant No.2 on
27/05/2011, defendant No.3 is residing separately from the plaintiff,
defendant No.1 has filed a case under Domestic Violence Act in the
court of learned Metropolitan Magistrate and interim order is passed in
the said matter by learned Metropolitan Magistrate whereby, plaintiff,
defendant Nos.2 and 3 are restrained from alienating Room No.106
which is the suit premises in the present suit. Plaintiff has contended
that he is the exclusive owner of the suit premises. Said contention of
the plaintiff is supported by the copies of permanent alternate
accommodation agreement, share certificate etc..
8. In the written argument, learned advocate for the plaintiff
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submitted that defendant Nos.1 and 2 were residing at native place in
the state of Uttar Pradesh and at the instigation given by the brother of
defendant No.1, defendant No.1 has come to Mumbai in year 2019.
Said argument is not in consonance with the pleading in plaint because,
it is pleaded in the plaint that defendant No.1 alongwith her two sons
is residing in the suit premises with the plaintiff after she got married to
defendant No.2 on 27/05/2011. Defendant No.1 has pleaded in her
written statement that plaintiff was residing at the native place
alongwith his wife and he came to Mumbai in year 2019. Since the
argument advanced to that effect by learned advocate for the plaintiff is
not in consonance with the pleading in the plaint, said argument cannot
be accepted, at least, at this stage of the proceeding.
9. Plaintiff is seeking relief of temporary injunction to restrain
the defendants from dealing with possession and creating third party
rights in the suit premises. Absolutely no statement/allegation is made
by the plaintiff in the plaint or in the affidavit filed in support of the
Notice of Motion that any of the defendant and most particularly
defendant No.1 is either dealing with the possession or trying to create
third party interest in the suit premises. Likewise, no statement/
allegation is made by the plaintiff in the plaint anywhere that defendant
No.1 is trying to dispossess the plaintiff and his wife from the suit
premises. In absence of any pleading/allegation in that regard in the
plaint or in the affidavit filed in support of the Notice of Motion, the
prayer made to that effect for granting temporary injunction in favour
of the plaintiff cannot be accepted.
10. So far as the prayer made to direct defendant Nos.1 and 2
to move out of the suit premises is concerned, material available on
record shows that suit premises is a shared household of defendant
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No.1 within the ambit of Domestic Violence Act. Suit premises appears
to be the absolute property of the plaintiff however, it does not appear
to be the contention of the plaintiff that there is no matrimonial dispute
whatsoever between his son (defendant No.2) and his daughter-in-law
(defendant No.1) and his son is trying to use the provisions of the DV
Act to either claim a right in the suit premises (which is exclusive
property of plaintiff) or continue to retain possession of the suit
premises on the strength of right of residence of defendant No.1.
Documents produced by the plaintiff are
prima-facie sufficient for
accepting that plaintiff and his wife are suffering from ailments
however, the material available on record shows that interim order has
been passed by the Metropolitan Magistrate in favour of defendant No.1
on 14/11/2019 and relevant portion of said order reads as;
“All respondents are hereby directed not to provide any type of
domestic violence to the applicant and not to alienate the room No.106
(as mentioned in prayer clause c) till the appearance of respondents”.
11. It is not in dispute that said order is in respect of the same
room which is the suit premises in the present matter. Even though it is
submitted on behalf of the plaintiff that said order is not continued, the
copy of
Roznama dtd.03/03/2021 produced by defendant No.1 shows
that said order was extended till 29/04/2021. Plaintiff has produced the
copies of the roznama but the copy of the roznama dtd.03/03/2021 is
not produced by the plaintiff. No further submissions are made by either
party in respect of extension of said interim order. Apparently, the
material available on record
prima-facie shows that defendant No.1 is
claiming that suit premises is her shared household and she has already
availed the remedy by filing a case under Domestic Violence Act against
the plaintiff, defendant No.1 and other family members wherein,
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interim order as mentioned above is passed in her favour by the learned
Metropolitan Magistrate. If temporary injunction in favour of plaintiff is
granted for directing defendant No.1 to move out of the suit premises,
the very purpose of granting interim relief in favour for the plaintiff by
the learned Metropolitan Magistrate in the case under Domestic
Violence Act would be frustrated. For all these reasons, this court is of
the opinion that neither
prima-facie case nor balance of conveyance do
lie in favour of the plaintiff. In the result, there is no question of causing
any irreparable loss to the plaintiff if injunctions as prayed are not
granted. Thus, by answering point Nos.(i) to (iii) accordingly, I pass the
following order.
O R D E R
Notice of Motion No.704 of 2020 is dismissed.
Date : 08/11/2021. (P.P.RAJVAIDYA)
Dictated on : 08/11/2021 Judge, C.R.No.62,
Checked on : 08/11/2021. City Civil Court,
Signed on : 08/11/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
11.11.2021 at 4.00 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.62)
Date of pronouncement of Order 08.11.2021.
Order signed by P.O. on 08.11.2021.
Order uploaded on 11.11.2021.
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