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.1384 OF 2019
IN
S.C.SUIT NO.1531 OF 2018
Smt.Saveetha Kumar Devendra ... Plaintiff
Versus
Smt.Angamma Ramaswamy Devendra ... Defendant
CORAM : HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 4th MARCH, 2020
Mr.R.A.Yadav, ld. adv. for plaintiff.
Mr.K.Chaturvedi, ld adv. for defendant.
O R D E R
1. This notice of motion is taken out by plaintiff for status-quo
ante for maintaining the condition as it was earlier to 27/11/2011 and
28/11/2018 night in Room no.51, Nav Tarun Naik Nagar, Antop Hill
Church, SM Road, Wadala, Kokari Agar, Mumbai-37 (this property will
be referred to as “the suit premises” hereinafter). Plaintiff has prayed
for restoration of possession of suit premises as status-quo ante as
plaintiff was dispossessed by defendant and her relatives from the suit
premises as per NC dated 28/11/2018. Plaintiff has payed for directions
to defendant to return all articles, belongings, documents, golden and
silver ornaments, cash of Rs.80,000/-, freeze two TV sets and other
articles to plaintiff. Further plaintiff has sought for directions to Antop
Hill Police station for helping plaintiff for restoration of possession over
suit premises. Lastly, plaintiff has prayed for temporary injunction for
restraining defendant from creating third party interest in suit premises.
2. Plaintiff has filed her affidavit in support of notice of
motion contending that she had filed SC Suit NO.1531/2018 on
-- 1 of 8 --
:2: NM.1384/19 IN SUIT-1531/2018
17/04/2018 and she had also taken out notice of motion no.2676/2018
which was pending for ad-interim relief. It is alleged that meanwhile
defendant, her daughters, sons, daughter in laws and son in laws with
their friends assaulted plaintiff and tried to dispossess plaintiff from suit
premises. Plaintiff had taken out chamber summons for bringing on
record various facts as alleged above. It is contended that defendant
with her relatives and local goons continuously assaulted and harassed
plaintiff therefore, several complaints were filed with Antop Hill Police
station but police did not lodge FIR against defendant. It is alleged that
defendant and her family members assaulted plaintiff dispossessed her
from suit premises on 27/11/2018 at 10.30 p.m. with her minor
children and husband. Thereafter, defendant had taken out fresh notice
of motion No.4507 of 2018 to restore her in suit premises. She has
contended that after her dispossession she had dialed Phone No.100 of
Police for help but police did not reached to the spot to help her. Any
how as per the superior authorities of police and some police from
Antop Hill police station came to the spot and taken plaintiff’s husband
into custody, however police did not inquire with defendant and her
companions. Further no FIR is registered against them. Hence, plaintiff
filed FIR against defendant and her companions, however police
registered NC No.3124 against defendant and her companions U/s.323,
504 of IPC. It is contended that plaintiff had taken medical treatment
from Sion Hospital and again he had taken out chamber summons
No.134/2019 it was allowed and copy of amended plaint is served upon
defendants.
3. It is contended that notice of motion No.2376/2018 is
disposed off by the Court previously and notice of Motion
no.4507/2018 has become infructuous so also chamber summons
-- 2 of 8 --
:3: NM.1384/19 IN SUIT-1531/2018
no.1650/2018 has become infructuous. It is alleged that plaintiff has
been dispossessed forcibly and illegally from suit premises on
27/11/2018 at 10.30 p.m. by defendant and her companions. Hence,
according to plaintiff notice of motion is necessary to be made absolute.
4. Defendant has filed her affidavit of reply and resisted the
notice of motion contending that previously plaintiff had taken out
notice of motion No.2376/2018. It was pending. Thereafter, plaintiff
had taken out chamber summons. It is contended that notice of motion
taken out by plaintiff is not maintainable as it is false. Further, plaintiff
has caused delay in taking out this notice of motion and after such
delay she has taken out the notice of motion with malafide intention
hence according to defendant it is necessary to be dismissed. It is
alleged that this notice of motion is nothing but improvement made by
plaintiff in her case and this notice of motion is taken out to fill up the
lacuna hence it cannot be allowed. It is denied that defendant, her
relatives and her friends have assaulted the plaintiff. It is specifically
contended that plaintiff was never possessing suit premises and she has
filed the suit without any right, title and interest in suit premises.
Further plaintiff has filed NC cases against defendant and her relatives
for creating the evidence and to show her right, title and interest in suit
premises. It is alleged that plaintiff has prepared several bogus
documents in respect of suit premises. According to defendant, plaintiff
has not produced documents on record to show plaintiff’s right, title
and interest in suit premises. It is alleged that plaintiff has filed this suit
to harass defendant and to grab suit premises. It is contended that
defendant is senior citizen and her children help her except plaintiff and
plaintiff’s husband. It is alleged that plaintiff and her husband are
greedy and they have tried to grab suit premises. It is denied that on
-- 3 of 8 --
:4: NM.1384/19 IN SUIT-1531/2018
28/11/2018 defendant and her companions tried to dispossess plaintiff
and her husband from suit premises. It is alleged that plaintiff is
misguiding the Court even though plaintiff has no documents to show
her right, title and interest in suit premises. It is denied that plaintiffs
any articles are lying in suit premises. It is contended that plaintiff was
never possessing suit premises. Hence, according to defendant the
notice of motion is necessary to be dismissed.
5. I have heard plaintiff’s advocate and defendant’s advocate
at length. Further written notes of arguments are also filed by learned
advocates for plaintiff and defendant for the purpose of decision of the
notice of motion. I have perused plaint, written statement and
documents annexed to the plaint. It is admitted fact Kumar Devendra
Ramaswamy is husband of plaintiff and the documents i.e. copy of
receipt of purchasing TV by plaintiff’s husband is showing his address as
Room no.52/51, Antop Hill Church, Sion-Koliwada, Sion, Mumbai-37.
The copy of passbook of PMC Bank issued in the name of plaintiff also
shows same address. Plaintiff has further filed various copies of
complaints filed by plaintiff with Antop Hill Police Station, NC papers
and documents issued by Radhakrisna Hospital in respect of treatment
taken by plaintiff. Progress card of plaintiff’s son Rishrin issued by
Sanatan Dharm Pre-primary School, English Medium, G.T.B. Nagar,
Sion-Koliwada, Mumbai-37 shows that the address of plaintiff and her
son as room no.51, Naik Nagar, S.M.Road, Antop Hill. Same address is
shown on the progress card of Nisha, the daughter of plaintiff. The
school Identity cards of the children of plaintiff are showing same
address. It is pertinent to note here that the progress cards and Identity
Cards of the children of plaintiff are related to the year, 2013-14-15-16.
Copy of Ration Card standing in the name of defendant shows that
-- 4 of 8 --
:5: NM.1384/19 IN SUIT-1531/2018
names of plaintiff Savita, her children Rishita, Nisha and Rishvin are
shown as family members of defendant. Said Ration card is of the
month of January-1991. The electricity bills filed by plaintiff on record
show that electricity meter obtained by plaintiff at ground floor of suit
premises was standing in the name of plaintiff and copy of consent
letter for obtaining such electricity meter is also filed on record showing
plaintiff’s address as suit premises. Copy of indemnity bond executed
by defendant in favour of plaintiff is also filed on record showing that
defendant has indemnified plaintiff for getting electricity meter at the
ground floor from suit premises. The electricity bills of the meter
standing in the name of defendant is also filed on record showing that
defendant also has her own meter on ground floor from suit premises
and the bill of electric meter in the name of Kumar Ramaswami
Devendra are also filed on record showing that one electricity meter is
standing in his name and it is situated at ground floor of suit premises.
Thus, plaintiff has filed on record the ample documents showing that
since 1991 up to filing of this suit plaintiff was in possession of suit
premises. Admittedly, plaintiff and defendant are family members,
therefore, only defendant has executed indemnity bond in favoaur of
plaintiff for allowing plaintiff to get electricity meter on the ground
floor at suit premises. Defendant also has filed the electricity bills
showing that defendant has separate electricity meter on the ground
floor at suit premises. The copy of renewed ration card obtained by
defendant shows that name of defendant only is appearing in ration
card which was obtained on 30/07/2018, however prior to it names of
plaintiff, plaintiff’s husband and children were appearing in ration card
along with name of defendant. Defendant has also has filed copy of her
passbook of State Bank of India showing defendant’s address as ground
floor from suit premises.
-- 5 of 8 --
:6: NM.1384/19 IN SUIT-1531/2018
6. I have carefully perused the written notes of arguments
filed on behalf of parties. On careful perusal of the documents filed by
the plaintiff and defendant, it becomes clear that plaintiff being
daughter in law of defendant, was possessing suit property prior to
27/11/2018 and now defendant is alleging that plaintiff was never
possessing suit premises. If really, plaintiff, her husband and children
would have never possessed suit premises the question arises as to why
defendant has executed indemnity bond in favour of plaintiff in respect
of suit premises and why defendant allowed plaintiff to have electricity
meter at suit premises.
7. This is interesting suit in which allegations of assault are
made by both the parties against each other. It seems that due to family
dispute, defendant is having support of her other children i.e. sons and
daughters, however plaintiff, her husband and children are not having
support of any one. Any how, from the documents on record it becomes
clear that plaintiff, her husband and children were sharing the suit
premises, therefore, I find that it is necessary to direct defendant to
restore plaintiff, her husband and children back into the possession of
ground floor Room no.51 from suit premises. Plaintiff and defendant
being daughter-in-law and mother-in-law, defendant cannot deny
plaintiff’s right to reside in her matrimonial home, it seems that
defendant is under impression of other sons and daughters and
therefore, defendant is intending that plaintiff should not reside in
room No.51 from suit premises. Hence, I find that notice of motion can
be made absolute only in terms of prayer clause (a) of the notice of
motion. In respect of clause(b) of the notice of motion, it is made clear
that plaintiff will have to prove by documentary evidence that the
articles referred in prayer clause(b) of the notice of motion were kept
-- 6 of 8 --
:7: NM.1384/19 IN SUIT-1531/2018
by defendant and her companions with them and those articles were
owned by plaintiff or her husband. For that purpose plaintiff will have
to adduce cogent evidence and unless the evidence is adduced by the
parties, I find that reliefs as claimed in prayer clause(b) of the notice of
motion cannot be granted. It seems that parties to the suit have reached
far away from each other and now unless police will hep plaintiff for
getting back her possession in room no.51 from suit premises definitely
defendant will not allow plaintiff to enter into said room. Hence, I find
that directions are necessary to be given to police to help plaintiff for
compliance of this order passed by Court and for restoring plaintiff’s
possession over suit premises i.e. in Room No.51, Nav Tarun Naik
Nagar, Anto Hill Church, S.M. Road, Sion-Koliwada, Mumbai-37. Hence
I proceed to pass following order.
O R D E R
Notice of Motion No.1384 of 2019 is made absolute in terms of
prayer clause(a) and (c) of Notice of Motion.
Sd/-
(K.P.NANDEDKAR)
04/03/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 04/03/2020
Transcribed on : 12/03/2020
Signed by HHJ on : 16/03/2020
-- 7 of 8 --
:8: NM.1384/19 IN SUIT-1531/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
16/03/2020 03.00PM B.R.HATEKAR (S.G.)
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 04/03/2020
Judgment/order signed by P.O on 16/03/2020
Judgment/order uploaded on 16/03/2020
-- 8 of 8 --