Interim Order 2

Order Details: Notice of Motion
Pdf Text: NM 1045/18 in SU 700/18 .. 1 .. Order
CNR No. MHCC010033982018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1045 OF 2018
IN
SUIT NO. 700 OF 2018
Smt. Roshan Salim Shaikh ...Plaintiff.
V/s.
Mr. Ibrahim Allahbux Shaikh And Ors. ...Defendants.
Appearances:
Ld. Adv. Mr. Vishant Rathod for plaintiff.
Ld. Adv. Mr. Suraj Kudalkar for all defendants.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 24th October, 2018.
: ORAL ORDER :
The plaintiff has taken out this Notice of Motion and has
requested to grant interim relief pending, hearing and disposal of the
suit. The interim reliefs sought for is to grant temporary injunction
restraining the defendants from entering upon and/or remaining in the
suit premises being Room No.31/6 as described in the prayer clause (a)
of the Notice of Motion. The plaintiff has also requested to grant
temporary injunction restraining the defendants from selling,
transferring or creating any kind of third party interest in the suit
property. The plaintiff has also requested to grant temporary injunction
restraining the defendants from dispossessing the plaintiff from the suit
premises. The plaintiff has filed affidavit in support of the Notice of
Motion.
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NM 1045/18 in SU 700/18 .. 2 .. Order
2. The plaintiffs case may be stated as under :
The suit property is described as Room bearing No.3/1/6 as
described in prayer clause (a) of the Notice of Motion. The defendant
No.1 is the brotherinlaw and defendants No.2,3 and 5 are sisters of
the plaintiff's husband, whereas, the defendant No.4 is plaintiff's
husband. The suit premises was owned and possessed by fatherinlaw
of the plaintiff. Fatherinlaw of the plaintiff has expired. Therefore, the
suit premises was transferred in the name of motherinlaw of the
plaintiff. The plaintiff has been residing in the suit premises since her
marriage alongwith defendant No.4. The documents of PAN card,
Election card, Aadhar Card etc. are relied upon in this regard by the
plaintiff. The plaintiff has begotten one son and two daughters while
residing in the said premises. In their Aadhar card also there is address
of the suit premises. Plaintiff's motherinlaw died in the year 2008.
After her death, her name was deleted from the Ration card and in its
place, the name of defendant No.1 has been recorded alongwith the
other members as residing in the suit premises including the name of
the plaintiff. Ration card to this effect is also produced by the plaintiff
alongwith the plaint.
On 23.05.2008, the defendant No.2 has filed non cognizance
complaint against the defendant No.1 claiming that the defendant No.1
has abused him. After death of motherinlaw of the plaintiff, the
defendant No.4/husband of the plaintiff became habitual drunken due
to this, defendant No.4 started harassing to the plaintiff. The defendant
No.1 has threatened about taking possession of the premises. Therefore,
the defendant No.4 filed non cognizance complaint against the
defendant No.1 on 03.02.2018. On 04.02.2018, defendant No.1 and 2
came to the suit premises and threatened to get suit premises vacated.
Therefore, the plaintiff made complaint to the police on 05.02.2018.
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NM 1045/18 in SU 700/18 .. 3 .. Order
According to the plaintiff, the suit premises is ancestral property and
she has right therein. The plaintiff has apprehension of being
dispossessed and, therefore, she has filed the instant suit for declaration
that the defendants have no right of whatsoever nature in the suit
property to sell and transfer to any third person. There plaintiff has also
sought injunctions in the plaint.
3. The defendants have filed reply and opposed the Notice of
Motion strongly. Affidavit of defendant No.1 has been filed to oppose
the Notice of Motion. The defendants have admitted relations between
the parties. According to the defendants, the defendant No.3 is the
original owner and occupier of the suit premises situated at Room
No.4/SM/3/1/6, Block “B”, Worli Lotus, Mumbai400 018. The
defendants have submitted that the pitch card and electricity bills are in
the name of the defendant No.3. According to the defendants, they are
the legal heirs and legal representatives of the deceased Zainabbi
Allahbux (motherinlaw of the plaintiff). She has died on 12.10.2008.
Her name was deleted from the Ration card and name of defendant
No.1 was recorded in her place. The defendant No.1 is looking after the
suit premises. The defendant No.3 being the owner of the suit premises
executed the Power of Attorney in favour of the defendant No.1 to look
after the suit premises as defendant No.3 is working as a house maid in
Katar, Emirate States (U.A.E.). During her job, it was noticed that
defendant No.3 is suffering from various ailments. Financial condition
of defendant No.3 was not sound and she required surgery to be done
on her. Therefore, all the defendants and sisters decided to sell the suit
premises and to use the sale proceed for the treatment of defendant
No.3. For this, defendant No.4/husband of the plaintiff also agreed. All
the defendants agreed to pay Rs.7 Lac to the defendant No.4 for
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NM 1045/18 in SU 700/18 .. 4 .. Order
arranging him house in Palghar area. No objection cum declaration was
then given by the defendant No.4/husband of the plaintiff on
15.01.2018. Defendant No.4 had stated that on the ground of humanity
the defendant No.3 has given the suit premises to the defendant No.4
for residing therein till it is sold to any third person. The defendant
No.3 had handed over the amount of Rs.7 Lac to the defendant
No.4/husband of the plaintiff by way of cheque. Defendant No.4
accepted it. Thus, according to the defendants, the plaintiff has no legal
right in the suit premises. Therefore, the defendants No.1,2,3 and 5
have requested to dismiss the Notice of Motion.
4. I have heard arguments advanced by learned Advocate of the
plaintiff as well as learned Advocate of the defendants. Following points
arise for determination on which I record my findings as under for the
reasons to follow :
POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case for granting the
interim relief as requested in the
instant Notice of Motion ?
In the Affirmative
2. Whether the plaintiff has balance of
convenience in his favour ?
In the Affirmative
3. Whether the plaintiff would suffer
irreparable loss, if temporary
injunction is not granted ?
In the Affirmative
4. What order? The Notice of Motion is
allowed in terms of the
operative order being
passed herein below.
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NM 1045/18 in SU 700/18 .. 5 .. Order
: R E A S O N S :
AS TO POINT NO.1 TO 4 :
5. Admittedly, the suit property was owned by fatherinlaw of the
plaintiff and father of the defendant No.1 to 5. Defendant No.4 is
husband of the plaintiff. In the course of arguments, both the parties
have submitted that defendant No.4 has died pending the suit. It may
be noted that defendant No.4 does not appear to have filed any reply
before his death to oppose the contention of the plaintiff. Admittedly,
the said Allahbux Shaikh (fatherinlaw of the plaintiff and father of
defendants No.1 to 5) has expired and after his death the premises was
transferred in the name of the motherinlaw of the plaintiff and mother
of the defendants, as it is shown in the documents like municipal
corporation, electricity bills etc. The Ration card relied upon by the
parties, also reveals that all the parties were residing in the suit
premises in the lifetime of the deceased Allahbux Shaikh and his wife
Zainabbi Allahbux Shaikh. Zainabbi Allahbux Shaikh also died in the
year 2008, is not disputed. In such circumstances, prima facie, it
appears that the plaintiff was residing in the suit premises alongwith
her husband and prima facie, it appears that the plaintiff and
defendants have joint rights and interest in the suit property. The case
of the defendants is that the defendant No.3 is the owner of the suit
property. However, there appears no documents in support of this
proposition. Therefore, the suit premises can be said to have been left
by the fatherinlaw and motherinlaw of the plaintiff and father and
mother of the defendants. Therefore, the defendant No.3 cannot be said
to be exclusive owner of the suit property. The contention of the
defendants that the husband of the plaintiff (defendant No.4) has
executed no objection for transfer of the property to the defendant No.3
or for transferring the suit property to any third person. Xerox copy of
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NM 1045/18 in SU 700/18 .. 6 .. Order
this document has been also produced by the defendants No.1,2,3 and
5. However, this is not the registered document under which a right or
interest in immovable property can be said to have been transferred or
given up. In such circumstances, the plaintiff has prima facie case about
her residence in the suit premises being wife of the defendant No.4,
who is said to have died during pendency of the suit. The Ration card
and electricity bills etc. produced by the plaintiff in this regard, support
this view. Hence, the defendants cannot dispossess the plaintiff from the
suit premises and they cannot disturb the plaintiff in jointly occupying
the suit premises with them. As plaintiff's husband/defendant No.4 has
died, the plaintiff can be said to have joint interest and rights in the
property. Therefore, without her consent, the defendants No.1,2,3 and
5 cannot transfer the suit property to any third person.
6. For these reasons, the plaintiff has prima facie case and balance
of convenience in her favour and, if, temporary injunction restraining
the defendants from dispossessing the plaintiff from the suit premises
and from transferring the suit property to any third party would not be
granted, the plaintiff would suffer irreparable loss. Accordingly, I have
answered points No.1,2 and 3 in the affirmative. In the aforesaid terms,
the Notice of Motion will have to be allowed and accordingly, I have
answered point No.4. Hence, I proceed to pass the following order.
: O R D E R :
1. The Notice of Motion No.1045 of 2018 is hereby allowed in
following terms.
(i) By way of interim relief, pending the hearing and disposal
of the suit, the defendants No.1,2,3 and 5 are hereby restrained from
dispossessing the plaintiff from the suit premises and interfering in her
joint possession over the suit property.
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NM 1045/18 in SU 700/18 .. 7 .. Order
(ii) By way of temporary injunction, the defendants No.1,2,3
and 5 are also restrained from transferring the suit property or creating
the third party interest therein, pending the hearing and disposal of the
suit.
(iii) In these terms, the Notice of Motion stands disposed
of accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 24.10.2018. City Civil Court, Gr. Mumbai
Dictated on : 24.10.2018.
Transcribed on : 25.10.2018.
Signed on : 26.10.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26.10.2018, at 11.05 a.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 24.10.2018.
Judgment/order signed by P.O. on 26.10.2018.
Judgment/order uploaded on 26.10.2018.
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