Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord in NM 1330 of 2019 in Suit no.308 of 2019
MHCC010034512019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO. 1330 OF 2019
IN
SUIT NO.308 of 2019
Mrs. Pooja Satyawan Vichare …….. Plaintiff
V/s
1. Mrs. Kalpana Jeevan Shirke & Others. ………Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 3rd DAY OF JULY, 2023
-: Appearances: -
The learned Adv. Seena Patil for plaintiff.
The learned Adv M.S. Lad h/f M/s. Chirag Shah & Co. for defendants
ORAL ORDER
The plaintiff has taken out present notice of motion against
defendants thereby claiming relief inter alia to restrain them by an
order of temporary injunction from disturbing the possession of the
plaintiff over the suit premises;
2. The plaintiff has filed the suit for permanent injunction
against the defendants. It is contention of the plaintiff that, her
marriage was solemnized with Satyawan Vichare on 17/03/2002. Out
of said marriage she gave birth to three children. During lifetime of her
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husband, she along-with her children used to reside in the suit
premises. Even after death of her husband she along with her three
children is residing in the suit premises i.e., room no.1, Vijaya Mansion,
Parerawadi, Nera Theresa School, Mohili- Village, Sakinaka, Mumbai.
3. The defendant no.1 is the sister-in-law of the plaintiff;
defendant no. 2 is the husband of defendant no.1, defendant no.3 is the
son of defendant no.1, defendant no. 4 is the sister-in-law and
defendant no.5 is the son of defendant no.4. Defendants are residing in
room no. D-6, Anjuman Isman Chawl, Dongri Sadan, Mohili, Village,
Sakinaka, Mumbai. It is contended that, deceased husband of plaintiff
having four sisters. After marriage, they are residing with their husband.
The deceased husband of the plaintiff is residing in the suit premises
along with the plaintiff and others.
4. It is contended that, the husband of the plaintiff died on
05/01/2019 and thereafter defendants started threatening her to vacate
the suit premises. They have also attempted to disposes the plaintiff
and threatened of dire consequences. Therefore, the plaintiff wernt to
Sakinaka Police station on 16/01/2019 to lodge report, however, police
only gave understanding to defendants and issued N.C. receipt.
5. It is further contended that, thereafter on 26/01/2019
defendants came to the house of the plaintiff and abuses her in filthy
language. They also threatened her to vacate the suit premises within
10 days. Therefore, again the plaintiff went to police station to lodge
the report. However, police gave understanding and asked to approach
Civil Court. Hence, the suit and notice of motion.
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6. Defendants strongly opposed the notice of motion by filing
reply on affidavit. It is contended that, notice of motion taken out by
the plaintiff is false and frivolous and thus liable to be rejected. It is
filed with an intention to harass the defendants and to deprive them
from claiming their ownership right in the suit premises. It is
contended that, suit property belongs to father of defendants no. 1 and
4. The plaintiff has nothing to do with it. She has no right to remain in
possession of the suit property. It is further contended that the
defendants have filed suit for partition and possession. Therefore, notice
of motion may kindly be rejected.
7. Heard the learned advocate for the plaintiff and defendants
at length. Perused the record.
8. Following points arise for my determination, on which I
gave my findings with reasons as follows: -
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
the relief of temporary injunction as
claimed?
Yes
2. What order? As per final order.
REASONS
As to point no.1:-
9. It is well settled that for claiming relief of temporary
injunction, the plaintiff has to show three well established principles in
her favour i.e., prima facie case lies in her favour, balance of
convenience lies in her favour and if the temporary injunction is
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refused, then the plaintiff is going to suffer heavy irreparable loss which
cannot be compensated in terms of money.
10. Here, it is to be seen that, the relationship in between the
parties is not disputed. It is stated that, the marriage of the plaintiff was
solemnized with brother of defendants no.1 and 4 on 17/03/2002. Out
of said wedlock, the plaintiff has given birth to three children. It is
contended that, since her marriage, the plaintiff is residing with her
husband and in-laws in the suit premises. To support this contention,
the plaintiff has filed electricity bill, ration card, Aadhar card and
election card on record. She has also filed copy of marriage card on
record.
11. It is contended that, her husband died on 05/01/2019 and
thereafter, defendants started harassing the plaintiff and her children,
so as to get vacate suit premises. To support this contention, she has
also filed copy of report and N.C. report issued by the police station
Sakinaka dated 07/01/2019 and 18/01/2019. Here, it is pertinent to
note that, defendants have not disputed possession of the plaintiff over
the suit premises. In fact, the defendants have filed suit for partition
and possession in respect of suit premises against the plaintiff. Thus,
the plaintiff prima facie proved her possession over the suit premises
and also establishes her right so as to remain in possession of the suit
premises till the decision in partition suit. Defendants have no right to
illegally and forcibly dispossess the plaintiff from the suit premises.
Therefore, plaintiff made out all three essential ingredients in her
favour. Hence, my answer to point no.1 is in the affirmative.
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As to point no.2:
12. In view of my above discussion, I pass the following order:
ORDER
Notice of motion no.1330/19 stands allowed and made
absolute in terms of prayer clause (a) and (b) i.e., defendants are
hereby restrained by an order of temporary injunction from disturbing
the possession of plaintiff on the suit premises and to dispossess the
plaintiff and her children from the suit premises without following due
process of law, till decision of the suit.
Notice of motion stands disposed off accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date: 03.07.2023 (C.R. No.1)
Dictated on : 03.07.2023
Transcribed on : 05.07.2023
Signed on : 06.07.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 06.07.2023 NAME OF STENOGRAPHER(G-I)
Mrs.V. V.. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 03.07.2023
JUDGMENT/ORDER signed by P.O. on 06.07.2023
JUDGEMENT/ORDER uploaded on 06.07.2023
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