Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1421/2020 in S.C.Suit No. 1160/2020. [ 1 ] Order.
MHCC010043892020
Presented on : 09-10-2020
Registered on : 09-10-2020
Decided on : 19-11-2024
Duration : 4 years, 1 months, 10 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1421 OF 2020
IN
S. C. SUIT NO. 1160 OF 2020
Mr. Rashmikant S/o. Jambulal Shah )...Plaintiff
Versus
Mrs. Namarata W/o. Pranav Shah )...Defendant
Shri A.M.Saraogi alongwith Devki Sahu alongwith Shri Ravindra Singh
alongwith Shri Vikas Mishra, Advocate for the plaintiff.
Shri Aamir Koradia, Advocate for the defendant.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 19th NOVEMBER, 2024.
ORDER
Vide this notice of motion the plaintiff seeks relief of
injunction to restrain the defendant from entering upon and removing
from suit premises being Flat No. E/06 situated at Saraswat Society,
Gaondevi, 29 Laburnam Road, Mumbai.
2. The plaintiff has come with case that he is owner in
possession of the suit premises. The suit premises is his self-acquired
property. He purchased same under Registered Sale Deed dated
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N/m No. 1421/2020 in S.C.Suit No. 1160/2020. [ 2 ] Order.
24/12/2005. The defendant is his daughter-in-law. Prior to this suit the
defendant has obstructed the plaintiff’s possession and tried to create
third party interest. Hence he had instituted Suit No. 851/2020 which is
subsequently withdrawn. Now the defendant is again trying to
dispossess the plaintiff from the suit premises. Hence this suit and
notice of motion.
3. In reply, the defendant contends that she never tried to
create third party interest over the suit premises. She is residing in the
suit premises since her marriage with the son of the plaintiff which took
place on 12/06/2000. The plaintiff and his wife reside in United States
of America. They occasionally visit India and resides at Kalbadevi house.
This fact is suppressed by the plaintiff.
4. It is further contention of the defendant that she has filed
complaint before Maharashtra State Woman Commission. The said
dispute was called by the Commissioner for amicable settlement. It was
agreed by her husband that she will not be removed from the suit
premises. She alongwith her husband resides in the suit premises and
she is paying electricity bill regularly. Hence prayed to reject the notice
of motion.
5. In rejoinder, the plaintiff states that he allowed the
defendant to reside alongwith him in suit premises on sympathy,
however the defendant has developed extra-marital relations. Hence it
is essential to remove her from the suit premises. The plaintiff files
written submissions alongwith case-laws. The defendant failed to argue.
6. The plaintiff has placed reliance upon decision of
Honourable Apex Court in Satish Chander Ahuja V/s. Sneha Ahuja
(Civil Appeal No. 2483 of 2020) wherein the Honourable Apex Court
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N/m No. 1421/2020 in S.C.Suit No. 1160/2020. [ 3 ] Order.
has observed that the pendency of proceeding under Protection of
Women From Domestic Violence Act, 2005 is not an embargo for
initiating civil proceeding. The Honourable High Court in Conrad Dias
V/s. Joseph Dias (1995-BCR-3-218) has observed that the provisions
under Section 41 of the Presidency Small Causes Court Act does not
apply to the suit filed by the father against son either for possession or
for injunction. It is also observed that it is true that a person who is not
in possession of the property should file a suit for possession. However
when the person is in joint possession with the defendant, there is no
need to file suit for possession. Relying upon these case-laws the
plaintiff submits that the mere suit for injunction is maintainable even
though the defendant is in possession of the suit premises.
7. It is the case of the plaintiff that he allowed the defendant
to reside in the suit premises on the ground of sympathy. He is owner of
the suit premises. To substantiate his case he has filed copy of Sale Deed
which shows that the plaintiff has purchased the suit premises. The
defendant does not specifically challenge the ownership of the plaintiff.
It is her specific case that the plaintiff does not reside permanently in
the suit premises, he occasionally visits the suit premises. Hence prayed
to reject the notice of motion. The ratio in Satish Ahuja (supra) and
Conrad Dias (supra) can be taken into consideration at the time of final
decision to see that whether mere suit for injunction is maintainable.
Thus, at this juncture, it can be said that in view of observation of
Honourable Supreme Court and High Court in aforesaid cases, the mere
suit for injunction would be maintainable if the plaintiff succeeds to
show that he is in joint possession with the defendant and defendant
has no right to retain the possession of the suit premises. All these
questions can be decided at the time of final decision. Now in such
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N/m No. 1421/2020 in S.C.Suit No. 1160/2020. [ 4 ] Order.
circumstances, it has to see whether the relief of temporary injunction
can be granted.
8. On perusal of plaint and notice of motion, it is seen that the
plaintiff has sought similar relief vide plaint and notice of motion. It
means if notice of motion is allowed, it will tentamount to grant of final
relief which is generally not permissible unless special case is made out.
The suit is instituted in the year 2020. The plaintiff also states that prior
to this suit he has instituted suit and same was withdrawn. The plaintiff
does not challenge the contentions of the defendant that there was
matrimonial dispute between the defendant and son of the plaintiff. All
these facts prima faice show that relationship between plaintiff and
defendant are strained. The plaintiff allowed the defendant to live in
the suit premises because she is daughter-in-law. The contentions of the
defendant that the plaintiff occasionally visits the suit premises are not
challenged by the plaintiff in rejoinder. In such case, she is the
defendant who will suffer irreparable loss if notice of motion is allowed.
In the result, following order is passed :
- ORDER -
1. Notice of Motion No. 1421/2020 stands rejected.
2. Accordingly N/m No. 1421/2020 is disposed off.
(U.C.DESHMUKH)
Judge, City Civil Court,
(Court Room No.66)
Date : 19/11/2024. Mumbai.
1. Dictated on : 19/11/2024.
2. Transcribed on : 21/11/2024.
3. Placed for correction on : 21/11/2024.
4. Checked on : 21/11/2024.
5. Correction carried on : 22/11/2024.
6. Signed on : 22/11/2024.
7. Delivered to Certified :
Copy Section on
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N/m No. 1421/2020 in S.C.Suit No. 1160/2020. [ 5 ] Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22/11/2024. 5.42 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 19/11/2024.
Judgment/Order signed by P.O. on 22/11/2024.
Judgment/Order uploaded on 22/11/2024.
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