Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1365/18 in Suit 572/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1365/2018
IN
S.C. SUIT NO.572/2018
Mrs. Sadaf Rajab Shaikh ..Plaintiff
V/s.
Ms. Khushnuma Shamshad
Ali Khan & Ors. ..Defendants
Appearance:
Adv. Mr. Khatri for the plaintiff.
Adv. Mr. Sachin Bandkar for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 24.7.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintiff for
seeking various reliefs, which include appointment of court receiver in
respect of suit property described in AnnexureA with the plaint under
Order40 Rule1 of CPC; seeking perpetual injunction against
defendants from selling, transferring or creating any third party interest
during pendency of suit and further relief in respect of certain moveable
properties which include documents like SSC; HSC and Degree
Certificates, Tailoring Certificate, Opportunity Certificate and jewellery
and gold ornaments described in para(c), utensils and branded watches,
refrigerator and washing machine etc. The N/M is supported by an
affidavit of Mrs. Sadaf Shaikh.
2. Defendants no.1 to 3 have opposed the N/M. by submitting
the affidavit in reply. I have gone through the same. The plaintiff has
filed a rejoinder to the reply on record. I have gone through the same.
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3. I have heard oral submissions of Ld. Counsels for both
sides. I have also considered the say/ reply filed by the defendants to
the N/M.
4. Ld. Counsel for the plaintiff submitted that, the plaintiff has
filed present suit in respect of suit property which is described in Ex.A
and ScheduleI filed with the plaint which consists of immoveable
property, they are;
1. Adarsh Nagar, 1st floor, Room No.104, Alibhai
Premji Marg, Opp. Hilla Heights, Grant Road(E),
Mumbai 400007.
2. Niamat Manzil, Room No.3/A, First floor, New
Petit Street, Grant Road (E), Mumbai 400 007.
3. Shop adjacent to Alfred Theater, Mumbai 400 008,
Shop No.1, Alfred Cinema Bldg., Khetwadi, 10th
Lane, Mumbai 400 008.
5. Moveable property consists of jewellery and gold
ornaments etc.
6. The plaintiff is sister of defendants. Father of defendant
Shamshad Ali Khan died intestate on 26.4.2000, leaving behind
plaintiff's mother Naseem Banu, plaintiff and defendants as his legal
heirs and legal representatives. It is submitted that, the plaintiff got
married on 29.10.2006 with Rajob Fakhruddin and started residing at
her matrimonial home, however she used to visit her mother in the suit
property. The plaintiff has attended her mother by visiting the suit
property during her illness. The plaintiff being elder sister used to
financially support her family and parents by taking tuition classes etc.
and doing other work. At that time, the defendants were young and
dependents on the earnings of the plaintiff. The plaintiff had renovated
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her parental home with tiles and floor.
7. Ld. Counsel for the plaintiff submitted that, the mother of
the plaintiff died intestate on 8.12.2013 leaving behind the plaintiff and
defendants as legal heirs, therefore the plaintiff is having her share in
the suit property as described in the plaint. She has also left behind
moveable property in the suit house, which is in the custody of the
defendants. It is grievance of the plaintiff that, the defendants have
restrained her from entering in to the suit house though she is share
holder in the suit property. The defendants let out the suit property on
leave and license basis to the third party without consent of the plaintiff
and are earning huge compensation in which the plaintiff is also having
share. The plaintiff had time and again requested the defendants about
her share in the suit property but it is denied by the defendants.
8. It is further submitted that, the plaintiff had filed complaint
to the police on 2.9.2017 against the defendants as they are intending
to grab the suit property. The plaintiff has been pursuing the higher
police authorities by making communications, but in vain. The plaintiff
had also claimed her share in the suit property through her advocate
vide letter dated 25.1.2018 addressed to the defendants but the
defendants have denied the claim of the plaintiff and deprived her from
her legitimate right and share in the suit property. Under the above
circumstances the plaintiff has approached this Court by filing present
suit and she apprehends that, during pendency of the suit the
defendants are likely to create third party interest in the suit property.
Under the above circumstances, present Motion is taken out by the
plaintiff seeking various reliefs against the defendants.
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9. Ld. Counsel for the plaintiff has relied on the following
authorities in support of his oral submission :
1. Mrs. Shahid Sharriff & Ors. V/s. Amanullah &
Another (Appeal From Order No. 1369 of 2010
with Civil Appln. Nos. 1690 of 2010 and 355 of
2012) decided on 29.11.2013.
2. Arun Bhaskar Adarkar V/s. Mrs Mina Srinivasan
Krishnan & Anr. (Suit No.1173/2011 with Notice
of Motion No. 1548 of 2011) decided on
3.4.2012 (SC).
10. I have gone through the above authorities and find that, in
the first authority, Hon'ble Bombay High Court has considered the
aspect where plaintiff had filed suit for declaration and injunction. As
plaint was filed before City Civil Court, Gr.Mumbai an objection was
taken to the jurisdiction and plaint was returned for its presentation in
the Court of Small Causes, Mumbai under Order 7, Rule 10(2) of CPC.
Hon'ble Bombay High Court has considered rival contentions and found
that, the plaintiff was contending about her legal rights being legal heir
of deceased tenant i.e. father of the plaintiff and defendant. Considering
nature and dispute involved in the suit it was held that in view of
Sec.28 of Bombay Rents, Hotels and Lodging House Rates Control Act,
1947 (now Section 33 of Maharashtra Rent Control Act) and Section 41
of the Presidency Small Causes Courts Act, 1882, suit filed before City
Civil Court was maintainable.
11. In the second authority also similar questions as to
jurisdiction of the court was involved. In para 10 it was held that,
dispute between the parties was not between landlord and tenant.
Landlord was involved in the litigation between the heirs of deceased
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tenant and was not made party to the suit. The plaintiff was not
claiming tenancy rights to the suit property. It was held that the suit
filed before City Civil Court was not barred by provisions Maharashtra
Rent Control Act 1999.
12. Defendants no.1 to 3 have strongly opposed the notice of
motion in their reply affidavit dated 13.7.2018. The defendants have
admitted relationship between the plaintiff and defendants but
contended that, the N/M, as framed and filed, is not maintainable in
law and it is liable to be dismissed with cost. It is submitted that, the
suit premises are tenanted premises and therefore, this Court has no
jurisdiction to entertain the suit as well as notice of motion. The
landlord has not been made party in the suit as well as notice of
motion. The defendants have raised several objections in their affidavit
in reply to the claim of the plaintiff and submitted that, since suit
premises are tenanted premises and not owned by the plaintiff or
defendants, neither the plaintiff nor the defendants have title to the suit
property so as to transfer the same or create third party interest.
Regarding the plaintiff's claim in respect of moveable property and
jewellery etc., the defendants have denied their liability and submitted
that, the claim is belated one and jewellery had been disposed of long
back for the expenses incurred on the medicines of their deceased
mother during her lifetime and the plaintiff is well aware about the
same. Under the above circumstances, it is submitted that the N/M is
liable to be dismissed with cost.
13. I have gone through the pleadings in the N/M as well as
plaint and documents filed on record. I have also considered the
affidavit in reply filed on behalf of the defendants and find that the
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plaintiff, being sister of the defendants, is having share in the suit
property and though the plaintiff and defendants are legal heirs and
successors of their parents. It appears that the suit property is a
tenanted property and therefore, neither the plaintiff nor the
defendants have title to sale the suit property or create third party,
however the suit property being tenanted property, tenancy rights are
heritable and therefore, it is necessary to maintain statusquo by the
defendants in respect of the suit property during the pendency of the
suit. It can be seen from the Roznama dated 24.4.2018 that, the
plaintiff had apprehension that, the defendants were likely to create 3rd
party interest in the suit premises, but defendant no.1 and 2 who were
present before the Court had stated that, they had no intention to create
any 3rd party interest in the suit premises and that statement was
recorded by my Ld. Predecessor. Considering the above aspect and the
fact that the purpose of filing the present suit will be served if interim
protection to that extent is granted and continued during pendency of
the suit. Hence, considering prima facie case and balance of
convenience, I am of the opinion that, no prejudice will be caused to the
defendants if the N/M is allowed to the above extent. Hence, I proceed
to pass following order:
ORDER
1. N/M No. 1365/2018 is hereby partly allowed in
following terms.
Defendants no.1 to 3 are hereby directed not to
create any third party interest in the suit premises
described in Exh.A along with plaint as per Schedule (I),
properties no.1 to 3, during pendency of suit.
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2. Rest of the prayers in the N/M are pertaining to
disputed facts and for proving the same, it will be
necessary for plaintiff to lead evidence in the case,
hence same are rejected at this stage.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date:24.7.2019 Gr. Bombay (C.R. 03)
Dictated on :24.7.2019
Typed on : 24.7.2019
Signed by HHJ on : 25.7.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :26.7.19
TIME: 5.15 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 24.7.19
Judgment/ order signed by P.O on 25.7.19
Judgment/ order uploaded on 26.7.19
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