Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1359/20 (Suit(St) 4097/20)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1359/2020
(CNR No.MHCC010041792020)
IN
S.C. SUIT (Stamp) NO. 4097/2020
Mr. Pandurang Sambhaji Parab ..Plaintiff
V/s.
1. Mrs. Priya Pandurang Parab
2. Omkar Pandurang Parab
3. Ms. Shweta Pandurang Parab ..Defendants
Appearance:
Ld. Adv. Mr.S.S. Redekar along with Adv. Mr.Jamkhandi for plaintiff.
Ld. Adv. Mr. Jayprakash Sawant for defendants no.1 to 3.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 16.12.2020.
ORDER
1. Perused the Notice of Motion supported by an affidavit of
plaintiff Pandurang Sambhaji Parab and perused the documents filed
with the Motion. I have gone through the pleadings in the plaint and
documents filed on record as per list of documents at pg.14.
2. At the first hearing of the notice of motion, Incharge Court
had heard Ld. Counsel for the plaintiff regarding grant of interim relief
and on the basis of the prima facie material on record and after hearing
Ld Counsel for the plaintiff, adinterim relief in terms of prayer
clause(a) of the notice of motion was granted till next date and same
has been continued from time to time uptill now.
3. On receiving of the notice of motion, the defendants have
appeared before the court and resisted the plaintiff’s claim in the suit as
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well as in the notice of motion by submitting their reply on affidavit
through defendant no.1, supported by documents annexed with the
reply affidavit. I have gone through the same. Ld. Counsel for the
defendants has also filed on record various documents as per list of
documents filed with the reply affidavit and contested the Motion on
various grounds, and has also submitted written notes of arguments. He
has also relied upon various authorities of the Hon’ble Apex Court and
of Hon’ble Bombay High Court in support of his contentions. I have
also gone through the same.
4. Briefly stated, it is the case of the plaintiff that, he is in
joint possession along with the defendants of the suit premises i.e.
Residential Flat – Flat no.14, D2 Wing, Ground Floor, Shanti Niketan
Coop. Housing Society Ltd., Lal Bahadur Shastri Marg, Ghatkopar(W),
Mumbai 400 086. Admittedly, the plaintiff and the defendants are
family members. Defendant no.1 is the wife of the plaintiff. Defendant
no.2 is the son of the plaintiff and defendant no.1 and defendant no.3 is
their daughter. The plaintiff and defendant no.1 are also having elder
daughter by name Mrs. Pranali Vikas Ghor, who is married and staying
with her husband and family and therefore, she is not made party in the
suit.
5. It is submitted by the Ld. Counsel for the plaintiff that,
originally, the suit premises were acquired and purchased by father of
the plaintiff i.e. late Sambhaji Pandurang Parab in his own name during
his lifetime and the plaintiff along with his father and family members
were residing in the suit premises. Father of the plaintiff late Sambhaji
Parab expired on 22.2.2006 and his mother had predeceased him on
8.4.1995. The plaintiff and his family members resided in the suit
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premises and the plaintiff has been paying maintenance charges etc.
regularly, except the last 34 years. Therefore, the plaintiff had paid
the amount of Rs.5,000/ towards arrears of the maintenance in the
year 2019 vide cheque issued in favour of the Society along with letter
dated 16.7.2020. For supporting his claim of the joint possession over
the suit premises along with the defendants, the plaintiff has filed on
record documents like; ration card, Aadhar card, PAN Card, driving
license, Voting card issued by Election Commission of India vide Exhs. D
colly., and also Electricity bill (Exh.E) and tax returns for the year 2016
17 to 201819 vide Exh. F (colly.).
6. On the above factual background, it is submitted by Ld.
Counsel for the plaintiff that there has been family dispute between the
plaintiff and defendants during the last few years and the plaintiff is
suffering mental agony and pressure due to the same. The family
dispute is also in respect of commercial premises of the plaintiff i.e. his
workshop, which in in exclusive possession of the plaintiff, where he is
carrying on his business. The defendants no.1 and 2 have given threats
of forcible dispossession of the plaintiff from his workshop. Therefore,
the plaintiff has allegedly filed a suit for injunction simplicitor bearing
Stamp No.3802/2020 against defendants no.1 and 2 and his sister in
this court and the Court has passed an order of statusquo on 15.6.2020
against the defendants and the suit is pending.
7. Ld Counsel for the plaintiff has specifically argued that, the
cause of action for filing the present suit occurred on 25.7.2020 when
the defendants had threatened the plaintiff to forcibly dispossess him
along with his articles and belongings as there was a quarrel earlier
between the plaintiff and the defendants no.1 and 2 regarding the
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commercial premises i.e. workshop inspite of the order of statusquo
granted by this court. The defendant no.1 and 2 had earlier lodged a
complaint to Surya Nagar police station against plaintiff on 13.7.2020
and the plaintiff was informed by the police authority that the
defendant no.2 i.e. son of the plaintiff was claiming his right in the suit
premises on the basis of a Will executed by his father i.e. Sambhaji
Parab. Therefore, the plaintiff through his Counsel has filed a Caveat
bearing no. 24/2020 before the Hon’ble Bombay High Court (Original
Side) in its Testamentary and Probate Jurisdiction for safeguarding his
interest, in case the defendant no.2 applies for any probate of the
alleged Will before the Hon’ble High Court, he should be heard before
any order is passed by the High Court in the Probate proceeding.
8. In view of above factual background and the threats given
by the defendant no.1 and 2, the plaintiff apprehends his dispossession
at the hands of the defendants. In view of the threats given by the
defendants, the plaintiff had lodged a complaint with the local police on
the basis of which NC has been registered on 25.7.2020, a copy of
which is filed on record with the Motion.
9. Ld Counsel for the defendants has strongly opposed the
above contentions made on behalf of the plaintiff and submitted that,
through family dispute and relations between the parties are not
disputed, the plaintiff’s claim regarding joint possession of the suit
premises by the plaintiff along with the defendants, is very much
contested in the present Motion. He argued that, the defendant no.1
had got married with the plaintiff in the year 1996 and they have three
children, a son and two daughters. Elder daughter is already married
and residing separately and the son has become major. Ld Counsel for
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the defendants argued that the father of the plaintiff Sambhaji Parab
had executed a Will in favour of defendant no.2 on 12.1.2006 and
therefore, the defendant no.2 has acquired ownership, right and title to
the suit premises and defendant no.2 is also holder of the share
certificate bearing no. SS0163 from the Shant Niketan CHS Ltd in
respect of the suit premises. Therefore, the defendant no.2 has absolute
right and title over the suit premises and he is in possession along with
his mother and sister. Therefore, there is no cause of action for the
plaintiff to file the present suit and the suit is liable to be dismissed.
10. Ld. Counsel for the defendants further argued that the
plaintiff is aware about the fact of execution of the Will dated
12.1.2006 by his father in favour of the defendant no.2 and on
9.10.2018 he had executed an affidavit confirming the above fact.
However, the plaintiff has suppressed this fact from the court and has
put up a false claim. It is further submitted that, the address of the
plaintiff mentioned in the cause title of the suit is incorrect/ wrong.
Present residence of the plaintiff is mentioned in the passport bearing
no.R 407953 valid for the period from 8.8.2017 to 7.8.2027, which
shows that, his address is near Noor Masjid Municipal No. X2/2, Sharif
Bhai Chawl, Nityanand Nagar, Ghatkopar (W), Mumbai 86 and his wife
is Nanda Pandurang Parab.
11. Ld. Counsel for the defendants vehemently argued that, the
plaintiff has not come before this court with clean hands and is guilty of
suppressing material facts from the court and therefore, not entitled for
continuation of the adinterim relief granted by this court during
pendency of the suit. Hence, he prayed for vacating the interim order
passed by this court on 3.8.2020. Ld Counsel for the defendants has
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emphasized that, the plaintiff was never in joint possession of the suit
premises along with the defendants. On the other hand, after attaining
majority, the defendant no.2 has become lawful owner and occupier of
the suit premises on the basis of the Will executed by his grandfather
and father of the plaintiff and he is also holding share certificate from
the said CHS Ltd. in that respect. Therefore, the notice of motion taken
out by the plaintiff is required to be dismissed with costs.
12. Ld. Counsel for the defendants has relied upon variouss
documents filed along with the reply affidavit vide Annexures’A’ to ‘E’
and also on the documents as per list filed in support of the reply
affidavit, which consists of reply affidavit by defendant no.1 in the
Notice of Motion No. 1266/2020 filed in Suit(Stamp) 3802/2020, copy
of petition No. E100174/2020 filed by the defendant no.1 for the order
of maintenance u/s.125 of Cr.P.C in the Family Court no.5, Bandra,
Mumbai and copy of Notice of Motion 101266/2020 filed in the Suit
(Stamp) 3802/2020 showing address of the plaintiff as Shed
Adhoniwala Compound, Nityanand Nagar, Ghatkopar, Mumbai, the Suit
is pending in City Civil Court No.7.
13. In support of the above submissions, Ld. Counsel for the
defendants has placed reliance on the following authorities of the
Hon’ble Apex Court and Hon’ble Bombay High Court :
1. Sangita Ambadas Khandagale V/s. The State of
Maharashtra and Ors. (Writ Petition
No.1092/2018) decided on 31.1.2018.
2. S.P. Chengalvaraya Naidu (dead) by LRs V/s.
Jagannath (Dead) by LRs and Ors. ((1994)1
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Supreme Court Cases 1)
3. Nagorao and Ors V/s. The Nagpur Improvement
Trust (AIR 2001 Bombay 402).
4. Natrajan Chandan V/s. Apna Sahakari Bank Ltd
and Ors. (2006(5) MhLj 778).
5. S.P. Subramanya Shetty & Ors. V/s. K.S.R.T.C and
Ors. (SLP© 4033/1997).
14. I have gone through the above authorities and find that in
the authority at Sr.No.1, Hon’ble Bombay High Court has held that, the
person who seeks equity must do equity. In the second authority,
Hon’ble Apex Court has observed that, if plaintiff obtains a decree from
the court by playing fraud, the claim cannot be allowed to stand in the
eyes of law. Similarly, in the third authority, Hon’ble Bombay High
Court has held that, before issuing order of injunction the courts are
required to see that discretion is exercised judiciously and equitably. It
is not mandatory that for mere asking such relief should be given. It is
not charity at the cost of public, however procedure established by law
has to be followed. In the authorities at Sr.Nos.4 and 5, Hon’ble
Bombay High Court has respectively made some important observations
regarding ownership, right and title of the immoveable property.
15. In his reply submission, Ld Counsel for the plaintiff has
placed reliance on the authorities of Hon’ble Apex Court regarding
prima facie settled possession of the plaintiff jointly along with
defendant and that he cannot be dispossessed by the defendant without
following due process of law. These authorities are as under :
1. Rama Gowda (D) by LRs V/s. M. Varadappa
Naidu(D) by LRs (2004 DGLS (Soft.) 1539)
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2. Smt. Sarladevi wd/o Kundanlal Bandawar,
Dharampeth, Nagpur V/s. Shailesh S/o.
Gourishankar Namdeo, Tilaknagar, Nagpur (AIR
1996 BOMBAY 98).
3. Govindbhai S/o. Ramjibhal Chauhan V/s.
Gokulchand S/o. Juthalal Agrawal and anr. (1996
A I H C 1202)
16. I have gone through the above authorities and find that the
law is well settled regarding the aspect that the person who is in long
standing possession or lawful possession of immovable property cannot
be dispossessed without following due process of law.
17. I have gone through the written notes of arguments
submitted by Ld. Counsel for the defendants and taken into
consideration various authorities cited in the course of written notes of
arguments. I find that, the authorities cited by the Ld. Counsel for the
plaintiff are also considered by the Hon’ble Apex Court in the decision
in the case of Zenith Mataplast Pvt. Ltd V/s. State of Maharashtra
((2009) 10 SCC 388), wherein the Hon’ble Apex Court has discussed
such facts and circumstances, when interim order of statusquo can be
granted and when such order is tentative on the basis prima facie
finding. Hon’ble Apex Court has also explained the term ‘prima facie
case’ and importance of prima facie findings recorded by the court,
while granting temporary injunction.
18. After going through the pleadings of the plaint and
documents filed on record along with suit as well as along with the
notice of motion and after considering the affidavit in reply submitted
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by the defendants opposing the Motion and also documents filed by the
defendants on record in support of their contention, I am of the prima
facie opinion that, the plaintiff has made out a case regarding his joint
possession in the suit property along with the defendants in the eyes of
law. I have also taken into consideration oral submissions made by Ld
Counsels for both sides and various authorities and citations submitted
in support of their contentions. It is clear from the prima facie material
and documents on record that, the claim of the defendants on the basis
of the Will of the father of the plaintiff late Sambhaji Parab dated
12.1.2006 cannot be considered at this stage as conferring right and
title in favour of the defendant no.2 in respect of the suit premises,
overriding the claim of the plaintiff of joint possession of the suit
premises along with the defendants. The defendant no.2 has yet not
obtained probate of the said Will and merely because the share
certificate bearing no.SS0163 from the Shant Niketan CHS Ltd.,
Mumbai in favour of the defendant no.2, that is not sufficient to give
him ownership, right and title to the suit premises exclusively.
19. It is also clear from the factual matrix of the case that,
there is existing family dispute between the plaintiff and the defendants
no.1 and 2 in respect of commercial premises of the plaintiff i.e.
workshop and also there is pending litigation between the plaintiff and
the defendant no.1 in this court as well as Family Court. Therefore, the
defendants are contesting the plaintiff's claim in the present suit on
various grounds. All these aspects raised by the defendants can be
considered by this court during the trial of the case, which requires
evidence and cannot be upheld at this stage. If the interim protection
granted by this court to the plaintiff is not continued during pendency
of the suit, the very purpose of the plaintiff approaching this court will
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be defeated.
20. In view of above observations,and my finding regarding
prima facie case and balance of convenience in favour of the plaintiff, I
have come to the conclusion that, no irreparable loss will be caused to
the defendants if the parties maintain statusquo, as on today, regarding
the factual aspect and the interim protection granted by this court to the
plaintiff on 3.8.2020 is continued. Hence, I am inclined to allow the
present Motion as per following order :
ORDER
1. Notice of Motion No.1359/2020 is hereby allowed
and made absolute.
2. The adinterim relief granted by this court to the
plaintiff on 3.8.2020 as per prayer clause (a) of the
Notice of Motion is hereby confirmed.
3. The defendants are hereby restrained by the order of
temporary injunction from disturbing the joint
possession of the plaintiff along with defendants in
the eyes of law, and not to forcibly dispossess the
plaintiff from the suit premises i.e. Flat no.14, D2
Wing, Ground Floor, Shanti Niketan Coop. Housing
Society Ltd., Lal Bahadur Shastri Marg, Ghatkopar
(W), Mumbai 400 086, without following due process
of law during the pendency of the suit.
Notice of Motion stands disposed of
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accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 16.12.2020 Gr. Bombay (C.R. 03)
Dictated on : 16.12.2020
Transcribed on :16.12.2020
Draft given to HHJ on 16.12.2020
Signed by HHJ on : 19.12.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON 19.12.2020
TIME: 3038 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 16.12.2020
Judgment/ order signed by P.O on 19.12.2020
Judgment/ order uploaded on 19.12.2020
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