Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 163519 in SCSU 98219
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.163519
(CNR NO.MHCC010044282019)
IN
SHORT CAUSE SUIT NO.982 OF 2019.
(CNR NO.MHCC010026442019)
Archana Pandurang Vaje & anr. }...PLAINTIFFS.
Versus
Smt. Sunderbai Devram Vaje and Ors. }...DEFENDANTS.
Shri.Ashok Kumar Dubey, learned advocate for the plaintiffs.
Shri.Ravindra Chile, learned advocate for defendant No.1.
Shri.Prashant Nakti, learned advocate for defendant No.2.
Shri.Ramesh Singh, learned advocate for defendant No.3.
CORAM: HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 04/05/2019)
1. By filing this Notice of Motion, plaintiffs have prayed to
temporarily restrain the defendants from selling, transferring or
creating third party interests in the suit premises, pending final disposal
of the suit. Relief is also claimed to appoint Court Receiver in respect of
those premises. Read the affidavit filed in support of Notice of Motion,
reply filed by defendant Nos.1 to 3 and rejoinder filed by the plaintiffs.
Heard learned Shri.Dubey advocate for the plaintiffs, learned Shri.Chile
advocate for defendant No.1, learned Shri.Nakti advocate for defendant
No.2 and learned Shri.Ramesh Singh advocate for defendant No.3.
Perused the entire record.
2. At the first instance, it may be stated that by hearing the
arguments of learned advocates for the parties in this Notice of Motion
on 02/05/2019, matter was adjourned to 04/05/2019 for passing order
but due to paucity of time, matter could not be taken up on that date
for passing order hence, Notice of Motion is taken up today for decision
-- 1 of 8 --
2 NM 163519 in SCSU 98219
during the summer vacation.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether primafacie case lies in favour of the
plaintiffs? ...No.
ii)Whether balance of convenience lies in favour
of the plaintiffs? ...No.
iii)Whether irreparable loss will cause to the
plaintiffs if injunctions as prayed are not granted? ...No.
iv)What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiffs argued that suit premises are in the joint
names of fatherinlaw & motherinlaw of plaintiff No.1 & some other
properties are purchased jointly by husband of plaintiff No.1 & brother
Anil of husband of plaintiff No.1. He argued that husband Pandurang of
plaintiff No.1 & two brothers Anil & Sunil of Pandurang had inherited
the suit premises from their father Devram and plaintiffs are the only
legal heirs and successors of Pandurang in respect of the suit premises.
He argued that Pandurang died in year 2008 when plaintiffs were at
maternal house of plaintiff No.1 & death of Pandurang is suspicious but
plaintiffs were not intimated about his death. He argued that after the
death of husband of plaintiff No.1, the plaintiffs are forcefully driven
out of the house by the defendant Nos.1 to 3. He argued that brothers
Anil & Sunil of Pandurang died in year 2014 & 2018 respectively &
father Devram of Pandurang died in year 2017 and as such, now the
family does not have any male member. He argued that plaintiffs have
succeeded the share of husband Pandurang of plaintiff No.1 in the suit
-- 2 of 8 --
3 NM 163519 in SCSU 98219
premises yet, defendant Nos.1 to 3 are denying rights of plaintiffs in the
suit premises & the plaintiffs apprehend that defendant Nos.1 to 3 may
create third party interests in the suit premises & if they succeed in it,
the lawful rights of the plaintiffs would be violated due to which, it is
necessary to restrain these defendants from creating third party
interests & to appoint Court Receiver in respect of the suit premises,
pending final disposal of the suit.
5. As against this, learned advocate for defendant No.1
argued that plaintiffs have not claimed any substantive relief like relief
for partition and separate possession or declaration due to which, the
suit itself is not maintainable. He argued that plaintiffs have not
produced any document to show that suit premises are owned jointly by
the husband Pandurang of plaintiff No.1 hence, any relief cannot be
granted in favour of the plaintiffs. In support of his argument that suit
for injunction simpliciter is not maintainable, learned advocate for
defendant No.1 has placed reliance on the following authorities.
i) Anathula Sudhakar Vs. P.Buchi Reddy
reported in (2008)4 Supreme Court Cases 594,
ii)Judgment dtd.09/10/2018 of Hon'ble Supreme Court in Civil
Appeal No.8241 of 2009 in a matter between Jharkhand State
Housing Board Vs. Didar Singh & Anr..
I have gone through those authorities.
6. Learned advocate for defendant No.2, on the other hand,
argued that out of the three suit premises mentioned in the plaint, one
of the suit premises is standing in the name of somebody else and not in
the name of either the plaintiffs or the defendants. He argued that there
are certain other properties of the family which is not included in the
suit hence, plaintiffs are not entitled for any relief.
7. Learned advocate for defendant No.3 argued that out of the
three suit premises, Room No.B23 is purchased by husband Sunil of
-- 3 of 8 --
4 NM 163519 in SCSU 98219
defendant Nos.3 & it was his exclusive property due to which, plaintiffs
cannot claim any rights in the said suit premises. He submitted that so
far as regards the other two suit premises is concerned, defendant No.3
is also having rights in those premises as like the plaintiffs and court
may grant interim injunction in respect of these two other suit premises.
8. At the first instance, it would be apposite to mention here
that suit is filed for injunction simpliciter. Plaintiffs have claimed relief
in the plaint to permanently restrain the defendants from creating third
party interests in the three suit premises described in the plaint as plot
B/21, B/23 and C/2. It appears that plaintiffs have described the suit
premises as Plot Numbers by mistake instead of referring it as Room
numbers. It may be stated that as is held in the authorities cited above,
it was essential for the plaintiffs to claim some substantive relief in the
suit may be in the form of declaration or partition & separate possession
of their alleged shares in the suit premises which they have not done.
May that it be so, it will have to be seen whether the material produced
on record by the plaintiffs is sufficient for accepting their contentions
that husband Pandurang of plaintiff No.1 was joint owner of any of the
three suit premises & thereby, his share is devolved on the plaintiffs?
9. Admittedly, Devram Vaje was the fatherinlaw of plaintiff
No.1 & he died in year 2017. It also does not appear to be in dispute
that defendant No.1 is the widow & defendant No.2 is the married
daughter of defendant No.1 & Devram. It also does not appear to be in
dispute that Devram & defendant No.1 had three sons by names
Pandurang, Sunil & Anil. It also does not appear to be in dispute that
Pandurang died in year 2008, Anil died in year 2014 & Sunil died in
year 2018. Plaintiff No.1 is the widow of Pandurang and plaintiff No.2
is the daughter of plaintiff No.1 from Pandurang. Defendant No.3 is the
-- 4 of 8 --
5 NM 163519 in SCSU 98219
widow of Sunil. It appears to be the contention of plaintiffs and
defendant Nos.1 to 3 that Anil has not left behind him any other heir in
ClassI than defendant No.1, his mother. Admittedly, the family
presently does not have any male member.
10. Plaintiffs have contended that Pandurang & Anil have died
unnatural deaths & their deaths are suspicious however, while deciding
the prayers made in this Notice of Motion, it is not necessary to give any
importance to the said aspect especially because, plaintiffs have not
produced any material in support of their said contention.
11. Plaintiffs are claiming that they are having shares and
interests in all three suit premises described in the plaint. As mentioned
earlier, suit is filed for injunction simpliciter. Relief is claimed in this
Notice of Motion to temporarily restrain defendant Nos.1 to 3 from
creating third party interests in these three suit premises. It will have to
be seen whether the material produced by the plaintiffs is sufficient for
accepting their contention that they have interests in the suit premises?
12. Plaintiffs have produced copies of documents obtained by
them under RTI Act. The documents in respect of Room No.B/21 prima
facie show that said Room No.B/21 is purchased by defendant No.1 it
from one Mahadev Govind Padval. There is nothing on record, at least
at this stage of the proceeding, to indicate that husband Devram of
defendant No.1 was in anyway concerned with said Room No.B/21. The
copies of Electricity Bills standing in the name of Pandurang in respect
of the Electric Meter installed at Room No.B/21 are not sufficient for
accepting that Pandurang was owner of the said room because, it is a
matter of routine experience that electric meters are being installed in
the name of tenants or lessees also by Electricity Board by obtaining no
objection from the owner of the premises. As there is no material for
-- 5 of 8 --
6 NM 163519 in SCSU 98219
prima facie accepting the contention of the plaintiffs that Devram Vaje
was joint owner of the said room alongwith defendant No.1 & as it
appears that said room is absolute property of defendant No.1,
contention of the plaintiffs is not prima facie acceptable that plaintiffs
have interests/shares in said room.
13. So far as suit premises bearing Room No.B/23 is
concerned, plaintiffs have produced copy of information received by
them under RTI Act. Perusal of said copy shows that Room No.B/23 is
shown in the name of one K.R.Yadav and not in the name of any of the
family member of plaintiffs & defendant Nos.1 to 3. Defendant No.1 has
produced copy of leave & license executed by Sunil which shows that
said room is already given on leave & license. May that it be so, the
material produced by the plaintiffs is not sufficient for accepting their
contention that Sunil had purchased said room jointly with husband
Pandurang of plaintiff No.1. Plaintiffs are not the heirs in ClassI of
deceased husband Sunil of defendant No.3. In absence of any material,
the contention raised by the plaintiffs that they are having interests in
the said room is not prima facie acceptable.
14. It does not appear to be in dispute that Anil died by leaving
behind him defendant No.1 as his mother. Perusal of the copies of
documents produced by the plaintiff themselves prima facie show that
suit premises bearing Room No.C/2 was purchased by deceased Anil.
Here again, there is no supporting material for accepting the contention
of plaintiffs that said suit premises No.C/2 was the joint property rather
the property of either fatherinlaw Devram or husband Pandurang of
plaintiff No.1. Since Anil is survived by his mother i.e. defendant No.1,
as per Hindu Succession Act, defendant No.1 is the only surviving heir
in ClassI of deceased Anil. It being so, during lifetime of defendant
-- 6 of 8 --
7 NM 163519 in SCSU 98219
No.1, either of the plaintiffs or either of the defendant Nos.2 & 3 cannot
claim any rights in the suit premises bearing No.C/2 hence, plaintiffs'
contention in respect of said premises is also prima facie not acceptable.
15. The copy of sale deed and other documents produced by
the plaintiffs in respect of the immovable properties standing in the
name of deceased Devram at VillagePusane in District Pune are not
sufficient for accepting the contentions raised by the plaintiffs in the
present suit in respect of the three suit premises hence, it is not
necessary to consider those copies any further.
16. As mentioned earlier, the documents produced on record
by the plaintiffs are not sufficient, at least at this stage of the
proceedings, for prima facie accepting the contentions of the plaintiffs
that plaintiffs have any interests in any of the three suit premises
described in the plaint hence, I hold that neither prima facie case nor
balance of convenience do lie in favour of the plaintiffs. In the result,
there is no question of causing any irreparable loss to the plaintiffs if
the prayers made by the plaintiffs for grant of temporary injunction &
appointment of Court Receiver are not accepted. For these reasons, by
recording my findings on point Nos.(i) to (iii) accordingly, I pass the
following order.
O R D E R
Notice of Motion No.1635 of 2019 stands rejected.
Costs in the main cause.
Date: 07/05/2019. (P.P.RAJVAIDYA)
Dictated on : 07/05/2019. Judge, C.R.No.12,
Transcribed on : 07/05/2019. City Civil Court,
Checked on : 08/05/2019. Gr.Bombay.
Signed on : 08/05/2019.
-- 7 of 8 --
8 NM 163519 in SCSU 98219
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
08/05/2019 at 11.00 a.m. Mrs. Sushma V. Surve
UPLOAD DATE AND TIME NAME OF TYPIST
Name of the Judge(with CR No.) HHJ SHRI.P.P.RAJVAIDYA (CR No.12)
Date of pronouncement of Order 07/05/2019
Order signed by P.O. on 08/05/2019
Order uploaded on 08/05/2019
-- 8 of 8 --