Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.821 OF 2019
IN
S.C.SUIT NO.90 OF 2018
1. Shardaben Purshottam Patel,
2. Priyesh Purshottam Patel, ... Plaintiffs
Versus
1. Ashok Manibhai Patel
2. Lilabaen Manibhai Patel ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 10th JUNE, 2019
Advocate Ms. Vidya Seth for Plaintiffs.
Advocate Mr. Bhadang for Defendants.
ORDER
1. This Notice of Motion is taken out by plaintiff no.1 for
temporary injunction restraining defendant no.1, his family members,
nominees, employee, servants, agents or any person claiming by or
under him from obstructing/ restricting the entry of guests, friends,
gardener of plaintiffs to enter upon the suit premises.
2. The plaintiff no.1 has filed her affidavit in support of notice
of motion contending that she has filed this suit for permanent
mandatory injunction for restraining defendant no.1 from forcibly
evicting the plaintiffs from the suit premises without following due
process of law. As mentioned in the affidavit, plaintiff no.1 is intending
to rely upon the contentions raised in the plaint. Further it is contended
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that notice of motion No.3459 of 2018 filed by plaintiff for temporary
injunction is pending and despite of making statement before Hon'ble
Bombay High Court in Appeal against Order No.482 of 2018, defendant
no.1 has been all out to harass plaintiffs in their peaceful possession of
the suit premises. It is alleged that defendant no.1 is threatening
plaintiffs' guests, friends on their visit to suit premises. Not only
defendant no.1 even has abused the gardener of plaintiffs on occasions.
3. Plaintiff no.1 has contended that in the month of January,
2019 Mrs.Deepti Shah has visited the suit premises to meet the plaintiff
no.1, however defendant no.1 spoke rudely with Mrs.Deepti Shah and
also taunted her by saying that she should not meet plaintiff no.1 as
plaintiffs are residing in suit premises freely without any contribution to
house expenses. On 01/02/2019, defendant no.1 verbally threatened
the plaintiff's gardener from coming to the suit premises. Therefore, on
said date NC was lodged at Malbar Hill Police Station. It is alleged that
harassment of defendant no.1 is continuing one and it is irrespective of
the age and health of plaintiff no.1. Therefore, plaintiffs are
apprehensive of inviting any guests or friends to suit premises.
Therefore, notice of motion is necessary to be allowed. According to
plaintiff no.1 no prejudice will be caused if notice of motion will be
allowed. On the contrary, on its rejection plaintiffs will suffer from
great harm, injury and loss which cannot be compensated in terms of
money.
4. As plaintiff no.1 is intending to rely upon the contentions
raised in the plaint, the contentions raised in the plaint are referred
here as follows;
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5. It is pertinent to note here that defendant no.2 is impleded
by amending plaint and prayer clause for declaration that plaintiffs have
22.22% ownership, right, title in suit property as sought by plaintiffs
along with permanent mandatory injunction directing defendants not to
evict plaintiff from the suit premises. They have also sought permanent
injunction restraining defendants from forcibly dispossessing plaintiffs
from the suit premises. As contended plaintiff nos.1 and 2 are mother
and son and they are residing at the suit premises. Defendant no.1 is
nephew of plaintiff no.1 i.e. son of defendant no.2 Lilaben Patel (Sister
of plaintiff no.1). Further it is pleaded that suit premises consists of
ground plus first floor structure bounded by compound which includes
garage, garden, outhouse etc. and it admeasures approximately 4000
sq.ft.. As pleaded plaintiffs are in continuous, settled possession of the
suit premises since 1971 and they are in exclusive use, occupation and
possession of the rooms shown in pink colour in the rough sketch which
is annexed as Exh.'A' to the plaint. It is the case of plaintiff that around
19691970, defendant no.2 was suffering from crises in her personal
life. There were legal proceedings pending in respect of Chhotabhai
Jethabhai Patel and Co. in which Manibhai Patel, husband of defendant
no.2, was a partner. Since defendant no.2 was handling all the legal
disputes, she used to to often travel to and fro to Madhya Pradesh,
Gujrat etc from Mumbai for those proceedings. Plaintiff no.1 and
defendant no.2 being sisters were close to each other as like close with
other siblings. It was around 1970 defendant no.2 asked the plaintiff
no.1 for contribution of Rs.2,00,000/ as share of plaintiff no.1 for
purchasing the suit premises as family house. That time plaintiff no.1
gave defendant no.2 Rs.2,00,000/ out of saving of plaintiff no.1. Said
amount was paid for purchasing suit premises. There was trust between
plaintiff no.1 and defendant no.2 and though the money for purchase of
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suit premises was shared by plaintiff no.1, suit property was purchased
in the name of defendant no.2 for Rs.9,00,000/.
6. According to plaintiffs since defendant no.2 was going
through turmoil in her personal life, she requested plaintiff no.1 who
was residing at Nadial, Gujrat to come and stay with defendant no.2
along with husband and children of plaintiff no.1. Accordingly, without
thinking much plaintiff no.1 in 1971 came to Mumbai and since then
plaintiffs have started staying at the suit premises. At that time
defendant no.2 was mostly helped up in her personal life and hence suit
premises was completely managed by plaintiff no.1 by her own
resources and money. Plaintiff no.1 used to look after the suit premises
as of her own. That time defendant no.1 and his sister Vedika Patel
were also very young. Defendant no.2 often used to be out of Mumbai.
Hence, plaintiff no.1 used to look after defendant no.1 and his sister
and she cared for them as like her own children. As such since 1971
plaintiffs are staying in the suit premises that time father of defendant
no.1 stayed at Subhash Nagar, Mdhya Pradesh. There was joint family
partnership of plaintiffs' family and defendants' family and they were
residing jointly hence food was used from common kitchen by all of
them and common areas from the suit premises were used by all of
them. It is pleaded that the resources to maintain the suit premises
were born jointly by plaintiffs and defendants. As such according to
plaintiffs, the suit premises is joint family home for plaintiffs and
defendants.
7. It is contended that everything was fine until 11th
December, 2017 when the defendants suddenly threatened plaintiffs
violently to leave out of the suit premises. Therefore, she had
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approached Malbar Hill Police Station to lodge an FIR, however police
officials refused to register FIR and only registered NC stating that the
dispute was of civil nature. Police directed plaintiffs to approach Civil
Court. It is alleged that defendant no.1 threatened plaintiffs for forcible
eviction from the suit premises. After said incident plaintiffs are residing
in suit premises with extreme fear. It is also contended that defendant
no.1 has relation with an extremely influential people and he can go to
any extent to turn his threats given by him. It is further contended that
plaintiffs became aware about the fact that defendant no.1 became
owner of suit premises and they came to know about said fact after
written statement was filed by defendant no.1. When defendant no.1
came with the case that he is sole owner of the suit premises plaintiffs
had amended the plaint and sought declaration about their ownership.
8. Defendant no.1 has resisted the notice of motion by filing
his affidavit of reply contending that plaintiff no.1 is not entitled to any
relief as claimed in the notice of motion because the suit itself is not
maintainable and liable to be dismissed for the reasons stated in the
written statement. Further according to defendant no.1 present notice
of motion is beyond the scope of plaint. Hence, it is liable to be
dismissed. It is contended that plaintiff no.1 time and again is making
frivolous applications on one or the other pretext just to harass the
defendants. Defendant no.1 has contended that he is owner of the suit
property and plaintiff's case is ex facie false, dishonest and is only filed
with the intention to harass defendants and other family members of
defendant. It is contended that defendant no.1 does not wish to allow
any stranger to enter in the suit premises. Therefore, dispute referred in
the plaint is raised. It is alleged that under the guise of orders passed
by the Hon'ble High Court and City Civil Court, plaintiffs are inviting
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their so called friends, guests and purporting to hire domestic help
through servants and gardeners solely with the intention to create
nuisance, annoyance and harassment to defendant no.1 and his ailing
mother who is of 85 years. According to defendant no.1 such a conduct
of plaintiffs cannot be permitted because plaintiffs are intending to
abuse process of law and they are intending to misuse the orders of the
Court.
9. Defendant no.1 has contended that he is complying with
the statement made by him before the Hon'ble High Court in
A.O.No.482 of 2018. However, under the guise of orders, plaintiffs
cannot invite anybody or cannot hire any person because till filling of
the suit, plaintiffs never felt any need to hire any domestic help of
gardener and hence such conduct of plaintiff shows their dishonesty.
Defendant no.1 has denied that he is harassing plaintiffs as well. All
other allegations made in the affidavit of plaintiff no.1 are denied. It is
specifically contended that there was no incident of harassment as
alleged in the said affidavit. It is contended that plaintiffs' so called
gardener has lodged false NC against defendant no.1 at Malbar Hill
Police Station. Further plaintiffs are making various persons to file false
complaints against defendant no.1 with a view to create false record
and create prejudice in the mind of Court. It is alleged that plaintiffs
are trying to get sympathy from the Court. Defendant no.1 also has
contended that he is intending to rely upon the contentions raised in his
written statement and counter claim.
10. Perused plaint, documents annexed to written statement
and counter claim and documents annexed to the notice of motion. I
have heard plaintiffs' advocate and defendants' advocate at length. It is
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pertinent to note here that as pleaded in the plaint somewhere in the
year, 1970 plaintiff no.1 had contributed amount of Rs.2,00,000/ for
purchasing suit property. However, till 2018 plaintiffs kept mum about
their share or interest in the suit property. Not only it, plaintiff no.1
alleged that defendant no.1 in the month of January, 2019 spoke rudely
and taunted to Mrs.Deepti Shah, the friend of plaintiff no.1. It is further
alleged that defendant no.1 even has threatened in the month of
February, 2019 to the gardener of plaintiff. However, in support of
those allegations and contentions affidavit of either Mrs.Deepti Shah or
so called gardener appointed by the plaintiff are not filed on record. NC
report lodged with police will not be helpful to plaintiff at this stage
because whenever dispute is started between the parties they try to
pressurize each other and they may file any such report against each
other. However, reports of NC cases cannot be considered at this
primary stage as conclusive piece of proof for establishing prima facie
case. Affidavits of Mrs.Deepti Shah and so called gardener appointed
by plaintiffs were expected to be filed by plaintiffs and in the absence of
any such affidavits contentions raised in the affidavit of plaintiff no.1
remained unsupported and therefore, such allegations cannot be
believed. It is pertinent to note here that already two notice of motions
nos.3459 of 2018 and 1471 of 2019 filed by plaintiff no.1 are dismissed
by this Court on the ground that plaintiffs were silent for about 50 years
in respect of their share or interest in suit property. While deciding
those two notice of motions, I have already come to the conclusion that
except bare words of plaintiff no.1 there is nothing on record to show
that the plaintiff has contributed any amount for purchasing suit
property. Any how, unless plaintiffs establish their claim on merits
about their share in suit property, I find that defendant no.1 who is the
true owner of property cannot be restrained from enjoying his own
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property that also on the basis of vague allegations made by the plaintiff
no.1. Further under the guise of prayer for restraining defendant no.1
from not disturbing plaintiffs' friend, relatives, servants etc. it seems
that plaintiffs are intending to obtain blanket order from the Court and
they are intending to make free entry of any one in the property owned
by defendant no.1. Admittedly, plaintiffs are having permissive
occupation over some portion of suit premises and it seems that
plaintiffs are intending to create their rights in suit property on the basis
of such permissive occupation. For all above reasons, I find that
plaintiffs are not at all entitled to the reliefs claimed in this notice of
motion. Hence I proceed to pass the following order.
O R D E R
Notice of Motion No.821 of 2019 stands disposed off/dismissed.
Sd/
(K.P.NANDEDKAR)
10/06/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 10/06/2019
Transcribed on : 12/06/2019
Signed by HHJ on : 14/06/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14/06/2019 3.00PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgement/Order. 10/06/2019
Judgement/order signed by P.O on 13/06/2019
Judgement/order uploaded on 14/06/2019
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