Final Order 1

Order Details: Notice of Motion
Pdf Text: Order ..1.. NM NO.1075 of 2020
MHCC010030812020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1075 OF 2020
IN
S.C.SUIT NO. 2924 OF 2018
Smt. Vijaya Dilip Chodankar wd/o
Late Dilip Chodankar. .. Plaintiff.
Versus
Mrs. Neha Rashesh Upadhyay. .. Defendant.
Advocates
S.A.A. Naqvi for the plaintiff
M.A. Khan for the defendant.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(Court No.: 2)
DATED : 9th November, 2021.
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of the defendant for grant of temporary injunction to restrain the
plaintiff or anybody on her behalf from preventing the defendant’s use,
occupation and possession in the suit premises i.e., Flat No.35-D, 4th
floor, Mazgaon Terrace C.H.S. Ltd., Mazgaon, Mumbai 400 010 and
further restraining the plaintiff and stopping the defendant from using
gold ornaments which is lying in the cupboard in possession of the
plaintiff in the suit premises.
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2. Plaintiff strongly opposed the notice of motion by filing reply.
Perused the plaint, written statement, documents, notice of motion
alongwith affidavit and reply of the plaintiff.
3. Contention of advocate for the defendant is that defendant was
using the suit premises alongwith the plaintiff. Then as department
allotted the servant quarter, defendant shifted her residence in the
address mentioned in title clause of the plaint. All belongings of mother
of the defendant including gold ornaments are lying in the cupboard of
the suit premises. Defendant is frequently visiting the suit premises and
staying with the plaintiff during weekends.
4. On 08.06.2019 and 22.06.2019, defendant visited the suit
premises. At that time plaintiff quarreled with the defendant and
threatened her to commit suicide if she turned back again. Hence
defendant rushed to the police station for lodging the report but police
refused to take the report and informed that the plaintiff had lodged the
report against the defendant. On 06.07.2019, defendant alongwith her
husband visited the suit premises but plaintiff did not allow the
defendant to enter the bedroom and use the cupboard for the purpose
of taking gold ornaments.
5. After receipt of letter dated 24.04.2019 from Byculla Police
Station, defendant went to the police station and learnt that the
plaintiff has lodged report against the defendant on 12.04.2019 for
fraud and cheating. On 26.10.2019, defendant again visited the suit
premises but the plaintiff did not allow her to enter the suit premises.
On 30.12.2019, the defendant written letter to Byculla Police Station
informing about her use and occupation of the suit premises. Gold
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ornaments in the cupboard of the suit premises belongs to the
defendant and plaintiff is not allowing the defendant to use gold
ornaments. Plaintiff is restraining the defendant from entering in the
suit premises and using of gold ornaments. Hence prayed for allowing
the notice of motion.
6. Plaintiff denied all the allegations in the notice of motion.
Advocate for the plaintiff submitted that advocate for the defendant had
made statement before the Court that defendant will not dispossess the
plaintiff from the suit premises without following due process of law.
Hence temporary injunction was granted in favour of the plaintiff on
13.06.2019. Defendant is trying to get forcible possession of the suit
premises and delay the outcome of the suit. Defendant is seeking relief
without leading evidence. Reliefs sought by the defendant cannot be
granted as the defendant is claiming relief in the suit filed by the
plaintiff. Hence prayed for dismissal of notice of motion.
7. This Court is not agreed with contention of advocate for the
plaintiff that the defendant cannot claim relief of injunction in a suit
filed by the plaintiff as according to Order 39, Rule 1 (a) of the Civil
Procedure Code, any party to the suit can claim temporary injunction
where in any suit it is proved by affidavit or otherwise that any property
in dispute in a suit is in danger of being wasted, damaged or alienated
by any party to the suit. Hence objection raised by advocate for the
plaintiff regarding maintainability of notice of motion is not legally
sustainable.
8. It is not in dispute that plaintiff is second wife of deceased Dilip
Chodankar. Defendant is daughter of the deceased Dilip Chodankar and
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step daughter of the plaintiff. Mother of the defendant expired on
22.02.2000. Defendant married with Rashesh Upadhyay of 19.02.2009.
Plaintiff married with Dilip Chodankar in the year 2011. Dilip
Chodankar expired on 25.07.2014.
9. Contention of the plaintiff is that in the month of October 2014,
defendant forcibly took original share certificate, electricity bill and
ration card from the custody of the plaintiff. Further defendant and her
husband tried to grab share of the plaintiff in the properties of the
deceased Dilip Chodankar. Hence plaintiff filed the present suit for
partition of the suit premises as well as one room no.T/2 admeasuring
160 sq.fts. situated at Vir Savarkar Road, Prabhadevi, Mumbai and also
for declaration that documents signed by the deceased in respect of the
said suit premises and room is not binding on the plaintiff.
10. It is admitted fact that the plaintiff is residing in the suit premises
and the defendant is residing with her husband in the address
mentioned in title clause of the plaint as well as present notice of
motion filed by the defendant. In other words, the defendant is not
residing in the suit premises. Under the circumstances, this Court vide
order dated 13.06.2019 in Notice of Motion No.4343/2018 granted
temporary injunction in favour of the plaintiff and against the
defendant thereby restraining the defendant from creating third party
interest in the suit premises.
11. Defendant filed the written statement dated 25.02.2019 (Exh.3).
From the perusal of written statement of the defendant, it appears that
deceased Dilip Chodankar had kept some amount in fixed deposit in the
name of the plaintiff. Golden ornaments of first wife of Dilip Chodankar
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i.e., mother of the defendant were taken by the plaintiff in custody and
it is alleged that plaintiff misappropriated the same.
12. Defendant filed on record copy of letter dated 24.04.2019 issued
by Byculla Police Station, report dated 12.04.2019 of the plaintiff
against the defendant and letter dated 30.12.2019 issued by the
plaintiff to Byculla Police Station. It appears from report dated
12.04.2019 that the plaintiff lodged report against the defendant stating
that after death of Dilip Chodankar, defendant came to the suit premises
and forcibly taken away golden ornaments from the cupboard in the
suit premises. Then the defendant was called in the police station by
letter dated 24.04.2019 about inquiry of report dated 12.04.2019
lodged by the plaintiff. It does not appear that the defendant attended
the said inquiry. However it is evident from letter dated 30.12.2019 that
the defendant informed the police station about her residence in the
suit premises on alternate/regular basis. It does not appear from letter
dated 30.12.2019 that the defendant denied taking away of ornaments
from the suit premises in possession of the plaintiff.
13. Defendant is an advocate by profession. Contention of the
plaintiff that the defendant taken away documents from custody of the
plaintiff and prayer of the defendant to allow her entry in the suit
premises to use gold ornaments itself sufficient to show that the
defendant wants to evict the plaintiff from the suit premises. It is not
the case of the defendant that property in dispute in a suit is in danger
of being wasted, damaged or alienated by the plaintiff. Admittedly the
defendant is not residing in the suit premises hence there is no question
of preventing her entry to use, occupy and possess the suit premises
especially when the suit for partition is pending before the Court.
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14. By way of report dated 12.04.2019, plaintiff is claiming that the
defendant taken away the gold ornaments from the cupboard in the suit
premises before filing of the suit. Defendant is claiming that the gold
ornaments of her mother is lying in the cupboard in the suit premises
and plaintiff is restraining her from using said gold ornaments. Now it is
a matter of trial whether gold ornaments are lying in the cupboard of
the suit premises and plaintiff is using the same or whether the
defendant taken away said gold ornaments.
15. Suit is filed in the month of October 2018 and defendant filed his
written statement. This Court granted temporary injunction in favour of
the plaintiff on 13.06.2019. All the incidences shown in the notice of
motion are after granting temporary injunction in favour of the plaintiff.
Hence there is no reason for the defendant to visit the suit premises.
This shows malafide intention on the part of the defendant. Defendant
has not come before the Court with clean hands. Under facts,
circumstances and documentary evidence on the record, no prima-facie
case is made out in favour of the plaintiff and against the defendant for
grant of temporary injunction as prayed. In the result, notice of motion
is liable to be dismissed. Hence following order.
ORDER
1. Notice of Motion no. 1075 of 2020 is dismissed.
2. No order as to costs.
(Sunil T. Soor)
Judge
Date : 09.11.2021 City Civil Court, Gr. Mumbai.
Typed on : 09.11.2021
HHJ signed on : 09.11.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09.11.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
09.11.2021
JUDGMENT/ORDER signed by P.O.
on
09.11.2021
JUDGMENT/ORDER uploaded on 09.11.2021
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