Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1033 OF 2018
IN
S.C.SUIT NO.599 OF 2018
1. Mr.Manohar Shankar Sawant and Anr. ... Plaintiffs
Versus
1. Mr.Atul Shankar Sawant and Ors. ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 19th SEPTEMBER, 2019
Mr.S.A.Shaikh, ld. adv. for plaintiffs.
Mr.S.S.Rededkar, ld adv. for defendant nos.1 and 3.
Mr.A.I.Mirde, ld. adv. for defendant no.7.
O R D E R
1. This notice of motion is taken out by plaintiffs for
restraining defendants from creating third party interest in suit premises
i.e. Room no.12, Building No.1, 1st Floor, admeasuring area about 210
sq.ft. situated at Abhudaya Nagar, Ekta CoOperative Housing Society
Ltd., Abhudaya Nagar, Kalachowki, Mumbai33. Plaintiffs have also
prayed for appointment of Court Receiver under Order40 of CPC and
direct the Court Receiver to let out the suit premises on leave and
license basis with consent of plaintiffs and to distribute monthly license
fees or compensation to plaintiffs.
2. Plaintiff no.2 Mrs.Sayali Yashwant Parte filed her affidavit
in notice of motion contending that she is intending to rely upon the
contentions raised in the plaint and it is further contended that if the
reliefs sought in notice of motion will not be granted plaintiffs will
-- 1 of 10 --
:2: NM.1033/18 IN SUIT599/18
suffer from irreparable loss which cannot be compensated in terms of
money. According to plaintiffs' defendants will not suffer from any
harm if notice of motion will be made absolute. As contended in the
plaint, plaintiffs are brother and sister and their mother Smt.Savitribai
Shankar Sawant expired at Mumbai on 14/11/2017 leaving behind
Mr.Manohar Shankar Sawant (plaintiff no.1 son), Mrs.Laxmi Dattaram
Mane (married daugther), Mr.Atul Shankar Sawant (son), Mrs.Sayali
Yashwant Parte (married daughter plaintiff no.2), Smt.Shobha Bhisaji
Parab (deceased), Smt.Aarti Chandrakant Sawant (deceased). It is
contended that defendant nos.1 and 2 are real brother and sister of
plaintiffs. Smt.Shobha Bhisaji Parab died leaving behind her children
i.e. defendant nos.4, 5 and 6. Smt.Aarti Chandrakant Sawant died
leaving behind defendant no.7.
3. It is contended that suit premises was belonging to
Smt.Savitribai Shankar Sawant on ownership and she was member of
Ekta CHS Ltd., she had five shares bearing Nos.11 to 15 under share
certificate no.3 of said Society. Copy of share certificate dated
06/01/1994 is annexed to the plaint as Exh.B.
4. It is contended that defendant no.1 is working as Police
Constable, his wife defendant no.3 is also working as Police Constable
at Mumbai therefore they are having sound economical condition.
Whereas plaintiff no.1 is retired person and senior citizen. Plaintiff no.2
is housewife whose husband has left the job and she is in a miserable
condition. Copies of Ration Card, Aadhar Card, Election Identity Card,
Electricity bill, School Leaving Certificate etc. of plaintiffs are filed with
the plaint collectively as Exh.C. Defendant no.1 was living with his wife
and children and with Smt.Savitribai Shankar Sawant at suit premises.
-- 2 of 10 --
:3: NM.1033/18 IN SUIT599/18
Defendant no.1 was not taking care of Smt.Savitribai, defendant no.1
used to harass, insult, humiliate, torture Smt.Savitribai, the mother and
therefore, ultimately Smt.Savitribai was forced to file Domestic Violence
Case bearing No.CC no.11/DVN/2011 before the Learned Metropolitan
Magistrate, 15th Court at Mazgaon, Mumbai. Said complaint was filed
against defendant no.1 and his wife. It is alleged that Smt.Savitribai
was also not offered with foods, medicines, clothes properly. In said
proceedings learned Metropolitan Magistrate issued protection order
and directed defendant no.1 not to enter into suit premises, however
defendant no.3 being woman was allowed to reside in it. Copy of said
protection order is filed at Exh.C with plaint. It is contended that as
such defendant no.3 is in possession of suit premises as per order of
learned Metropolitan Magistrate and possession of defendant no.3 over
suit premises is permissive possession and it is not in the nature of
substantial right, title or interest in suit premises. It is alleged that
defendant no.3 is misusing suit premises and she is keeping paying
guest in suit premises thereby she is making the business out of suit
premises. Therefore, plaintiffs are intending that Court should direct
defendant no.3 to vacate the suit premises. Further according to
plaintiffs, Smt.Savitribai left behind plaintiffs and her other four
children referred above and therefore, there are six shares in suit
premises. Hence, plaintiffs have tried their level best for getting their
shares from the suit premises and defendant nos.1 and 3 are against the
distribution of shares in suit premises. It is alleged that father of
defendant nos.4 and 6 was having original documents of suit premises.
Plaintiffs apprehend that defendant nos.1 and 2 who have given threats
to plaintiffs to sale suit premises will execute said threats and therefore
plaintiffs filed objection letters with Ekta CHS Ltd. As such letters were
also sent to MHADA and Rationing Authorities. Copies of those letters
-- 3 of 10 --
:4: NM.1033/18 IN SUIT599/18
are annexed to the plaint at Exh.E. Therefore, according to plaintiffs
they are entitled for the declaration and injunction as prayed for.
5. Defendant nos.1 and 3 have filed their written statement to
resist plaintiffs' claim. They have challenged the plaintiffs' claim on the
ground of maintainability and contended that it is not filed within
limitation. It is contended that this is the suit for partition, however all
legal heirs of Smt.Savitribai are not impleaded as party to the suit.
Further MHADA and Ekta CHS Ltd. are not impleaded as party to the
suit. It is contended that other properties of Smt.Savitribai i.e.
agricultural land at Village Natal, Tal. Kankavali, Dist.Sindhudurga is
not impleaded in the suit. Hence, according to defendants, plaintiffs are
not entitled to partition in respect of suit premises as it is a tenanted
premises under control of MHADA. It is alleged that plaintiffs have
suppressed material facts from the Court and raised concocted story in
the plaint.
6. It is contended that suit premises was originally allotted by
MHADA to Smt.Savitribai Shankar Sawant on tenancy basis for
residential purposes and after demise of Shankar Sawant it is
transferred in the name of Smt.Savitribai Shankar Sawant being widow
of original tenant. It is contended that Shankar Sawant had already
given respective shares to his children in lieu of suit premises.
According to defendants, in the year, 1976 Shankar Sawant and
brothers and sisters of defendant no.1 have decided as per oral family
agreement that suit premises will be given to defendant no.1 exclusively
and accordingly suit premises is handed over to defendant no.1
exclusively. It is contended that plaintiff no.1 left suit premises in 1976
itself as per the oral family arrangement and that time Shankar Sawant
-- 4 of 10 --
:5: NM.1033/18 IN SUIT599/18
has given the share to plaintiff no.1 therefore, only plaintiff no.1 left
suit premises and acquired flat at Dombivali from the amount given by
Shankar Sawant that time plaintiff no.1 and other family members have
assured that they will not claim any right in suit premises as they have
received their respective shares. Further according to defendants in the
marriages of sisters of defendant no.1, Shankar Sawant has given
golden ornaments, dowry etc. and those sisters also agreed that they
will not claim any right in suit premises. As such plaintiffs have no
right, title or interest in suit premises.
7. It is contended that plaintiffs were never in use, occupation
and possession of the suit premises during the period between 1976 to
1993 and as such plaintiffs have no concern with suit premises.
Defendants have contended that after demise of the parents, defendant
nos.1 and 3 are paying all the out going charges of suit premises to
concerned authorities and hence as per oral family agreement plaintiffs
are not entitled to claim or interest in suit premises. It is contended that
at the time of death of parents of defendant no.1, plaintiffs were not
residing in suit premises and defendant nos.1 and 3 only were residing
in it therefore defendant no.1 and 3 are entitled to exclusive right in
suit premises. All the contentions raised in the plaint are denied by the
defendants and as such they have denied plaintiffs' claim.
8. I have heard plaintiffs' advocate Mr.S.A.Shaikh and
advocate Mr.Redekar for defendant nos.1 and 3. Plaintiffs advocate
submitted that plaintiffs, defendant nos.1, 2 and 4 to 7 have their shares
in suit property and plaintiffs have claimed their shares in suit property.
By referring prayer clauses of the plaint, it is argued that plaintiffs have
sought declaration about certain amount as their shares in suit property
-- 5 of 10 --
:6: NM.1033/18 IN SUIT599/18
and they have also claimed partition of suit property. It is further
argued that protection order was passed by the learned Metropolitan
Magistrate in a proceeding which was initiated by deceased
Smt.Savitribai. It is argued that plaintiffs have raised their objection
before Ekta CHS Ltd. for not transferring suit premises in the name of
defendant no.1 and therefore, according to plaintiffs' advocate Court
Receiver is necessary to be appointed for giving suit premises on leave
and license basis, for collecting rent of suit premises and for distributing
it in between legal heirs of Smt.Savitribai. It is also argued on behalf of
plaintiffs that temporary injunction as prayed is necessary to be granted
and necessary to restrain defendant nos.1 and 3 from creating third
party interest in suit premises.
9. Advocate Mr.Redekar argued on behalf of defendant nos.1
and 3 that the Ration Card sought from defendant nos.1 and 3 was
handed over to plaintiffs' mother as per order passed by learned
Metropolitan Magistrate in DV case and said Ration Card is necessary to
be produced before the authorities of educational institution of
daughters of defendant nos.1 and 3. It is submitted on behalf of
defendants that suit premises is tenanted premises given by MHADA to
the father of plaintiff and later on it was transferred in the name of
Smt.Savitribai widow of said original tenant. Hence according to
defendants' advocate, suit for partition in respect of tenanted premises
cannot be entertained and plaintiffs cannot claim any relief against
defendants. Further according to advocate Mr.Redekar, defendant no.3
is possessing suit premises as per order passed by learned Metropolitan
Magistrate and defendant no.3 cannot be dispossessed by appointing
Court Receiver. It is argued that defendant no.3 is wife of defendant
no.1 and she is not direct legal heir of Smt.Savitribai, hence defendant
-- 6 of 10 --
:7: NM.1033/18 IN SUIT599/18
no.3 should not have been impleaded in this partition suit as legal heir
of Smt.Savitribai, the deceased mother of plaintiff, hence according to
advocate for defendant nos.1 and 3 plaintiffs are not entitled to any
relief as prayed in notice of motion and it is necessary to be dismissed.
10. I have given serious consideration to the pleadings of the
parties, documents filed with plaint and arguments advanced on behalf
of parties to the suit. The fact that whether deceased Shankar Sawant
was tenant of MHADA or whether suit premises was allotted to him on
ownership basis is the fact which can be ascertained after parties to the
suit will adduce evidence before the Court. According to plaintiffs, suit
flat is belonging to Smt.Savitribai on ownership basis and defendants
have contended that suit flat was possessed by plaintiffs father
Mr.Shankar Sawant as tenant of MHADA. Thus parties to the suit will
have to prove their rival contentions by adducing cogent evidence
before the Court. Admittedly, from the title clause, plaintiffs are not
residing in suit premises and it is not pleaded in the plaint that at the
time of death of Mr.Shankar Sawant or Smt.Savitribai whether plaintiffs
were residing in suit premises. It is admitted fact that defendant no.3 is
possessing suit premises. Further according to plaintiffs, defendant
nos.1 and 3 with deceased Smt.Savitribai were possessing suit premises.
As such it is admitted position that defendant nos.1 and 3 are
possessing suit premises, the protection order passed by learned
Metropolitan Magistrate looses its force after death of Smt.Savitribai,
the mother of plaintiff, because said protection order was given to her
only and plaintiffs cannot have benefit of said protection order. At the
most, from the rival contentions raised by the parties, it can be said that
plaintiffs are only entitled to the reliefs of temporary injunction
restraining defendants from creating third party right in suit premises
-- 7 of 10 --
:8: NM.1033/18 IN SUIT599/18
because plaintiffs have claimed that they are cosharers of suit premises.
I have already observed that whether plaintiffs are entitled to partition
of suit property is the question which can be answered only after parties
to the suit will prove their contentions by adducing cogent evidence
before the Court. However, as plaintiffs are contending that they are co
sharers of suit premises, I find that if defendants will alienate suit
premises to third party and if defendants will create third party interest
in suit premises, it will be difficult for plaintiffs to get executed decree
of this suit if plaintiffs will succeed in proving their claim and if Court
will decide their shares in suit property. As such plaintiffs have made
out prima facie case for granting temporary injunction against
defendants restraining them from creating right in suit premises.
However, plaintiffs' prayer for appointment for Court Receiver cannot
be granted unless Court comes to conclusion that plaintiff have their
shares in suit property and plaintiffs can get their shares in suit
premises. As such temporary injunction as prayed in prayer clause (a) of
notice of motion only can be granted. I have already observed that if
plaintiffs will succeed in getting decree in the suit it will be
inconvenient to plaintiffs to get executed said decree if third party
interest will be created in suit property. Considering this aspect of
inconvenience which may be caused to plaintiffs on creating third party
rights in suit property, I find that balance of convenience lies in favour
of plaintiffs and not in favour of defendants. Further if defendants will
create third party right into suit premises definitely plaintiffs will not be
able to get possession of suit property if this Court will declare that they
have share in suit property and for getting such possession again they
will have to start another round of litigation as such plaintiffs will suffer
irreparable loss. As discussed above plaintiffs have made out all the
three essential ingredients i.e. they have made out prima facie case for
-- 8 of 10 --
:9: NM.1033/18 IN SUIT599/18
granting injunction, balance of convenience lies in favour of plaintiff
and the plaintiffs will suffer irreparable loss on rejection of injunction
order. Hence, I find that that relief prayed in prayer clause(a) from the
notice of motion is necessary to be granted. For all above reasons, I
proceed to pass the following order.
O R D E R
1. Notice of Motion no.1033 of 2018 is partly allowed.
2. Prayer clause(b) from the Notice of Motion stands dismissed and
prayer clause (a) from the Notice of Motion is made absolute.
Sd/
(K.P.NANDEDKAR)
19/09/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 19/09/2019
Transcribed on : 21/09/2019
Signed by HHJ on : 23/09/2019
-- 9 of 10 --
:10: NM.1033/18 IN SUIT599/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
24/09/2019 11.15AM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 19/09/2019
Judgment/order signed by P.O on 23/09/2019
Judgment/order uploaded on 24/09/2019
-- 10 of 10 --