Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M 1656-20 in ST no.5451/20
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON NOTICE OF MOTION NO. 1656 of 2020
(CNR no. MHCC01-004977-2020)
IN
STAMP NO. 5451 OF 2020
Mrs. Kiran Gopal Samrit
Age : about 65 years, Occ : Retd. Clerk,
residing at Flat Nos. 502 & 503,
C-1, Neel Yog Apartment,
Gauri Shankar Wadi No.2, Panth Nagar,
Ghatkopar (E), Mumbai-400 075.
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Plaintiff
Versus
1. Mrs. Hemlata Sandeep Samrit
Age : about 34 years, Occ : Housewife
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2. Mr. Atul Natkar
Age : about 32 years, Occ : Service
Both residing at Flat No.3, “A” Wing,
Sudama Building No.5, Sudama Nagar,
Kalwa(W), District – Thane-400 605.
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Defendants
Appearances:-
Ld. Advocate Mr. S. A. Shaikh for the Plaintiffs.
Ld. Advocate Mr. Shafi Shaikh for Defendants no.1 and 2.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 4)
DATED : 4th February, 2021.
O R A L O R D E R
1. This is an application by Notice of Motion for temporary
injunction under Order 39 Rule 1 of Code of Civil Procedure, 1908.
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2. The suit pertains to two flats bearing no. 502, C-1
admeasuring about 660 sq.ft. Built-up area & 503, C-1 admeasuring
about 510 built-up sq. ft., situated at Neel Yog Apartment, 5th Floor,
Gauri Shankar Wadi No.2, Panth Nagar, Ghatkopar(E), Mumbai 400
075 (hereinafter “Suit Flat no.1 and Suit Flat no.2” respectively).
The plaintiff is mother-in-law of defendant no.1. Defendant no.2 is
brother of defendant no.1. Suit flat no.1 stands in the name of
plaintiff and her husband. In reply to the Notice of Motion, the
defendants have made categorical statements that the defendant no.1
has no concern with Suit Flat no.1. Now controversy remains in
respect 0f Suit Flat no.2 which stands in the name of plaintiff and
her son Sandeep, who happens to be husband of defendant no.1.
3. It is not in dispute that there being matrimonial discord,
various matrimonial proceedings are pending between the defendant
no.1 and Sandeep (son of plaintiff). Sandeep has filed divorce
petition and defendant no. 1 has moved application under section 12
of The Protection of Women from Domestic Violence Act, 2005 (hereinafter
‘DV Act’). In the Notice of Motion, the plaintiff is seeking temporary
injunction restraining the defendants from dispossessing, interfering
and/or disturbing the peaceful possession of the plaintiff over the
Suit Flat no.2. After careful reading of the reply to the Notice of
Motion, the defendant no.1 claims that she being in domestic
relationship with Sandeep, was living in suit flat no.2 since her
marriage and continued to do so till date by visiting the premises
frequently and therefore, the flat is ‘shared household’ and for
shared household it is not necessary that aggrieved person should
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3 N/M 1656-20 in ST no.5451/20
have any right, title or interest. Learned advocate for the defendants
argues that it is also not necessary that the husband of the woman
should have any right, title or interest in the house and protection
under Section 17 of DV Act is available in all legal proceedings
including the suit filed by the mother in law. However, in the reply,
defendant no.1 admits that maintenance of Rs.10,000/- per month is
paid to her for the child and Rs. 8000/- per month is paid to her to
pay the rent of alternate accomodation regularly pursuant to order
of Family Court, Bandra in Petition A-2421 of 2017 dated
12.03.2018. This reveals that the defendant no. 1 is provided
payment of rent as contemplated by Section 19 sub-section (f) of DV
Act.
4. Let us recapitulate the facts once again. It is apparent
that due to matrimonial discord between defendant no.1 and
Sandeep (son of plaintiff), they are fighting litigations in various
courts. In the reply, the defendant no.1 has not asserted that the
husband Sandeep was instrumental in purchasing suit flat no.2. The
plaintiff has filed on record various documents in the form of
Registered Agreement for Sale dated 11.03.2005, copies of passbook
of the plaintiff. The first document suggests that the age of Sandeep
was 22 years when the property was purchased. In the natural
course, it is difficult for a person of such age to acquire any
property from his own income. As stated herein earlier, the
defendants are not claiming that Sandeep (husband of defendant
no.1) used his own money to purchase suit flat no.2. Therefore, at
this stage it is believable that the suit flat no.2 is self acquired
property of the plaintiff.
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5. It is pertinent to note that in 2019 the defendant no. 1
filed an application under section 12 of DV Act but no interim order
for residence was passed till date. If such an order was passed in
favour of the defendant no.1, it would have been relevant and
carried some weight though not binding on civil court. Moreover,
in petition No. A-2421 of 2017 consent terms for payment of
maintenance was filed by the parties wherein it was clearly
mentioned that the present defendant no. 1 and her husband were
residing separately. It was also clearly mentioned therein that the
defendant no. 1 herein was residing at A-105, Gurudev Nagar,
Kopari (East), Opposite Mangala High School, Thane. This address is,
according to the plaint paragraph no.3, the place where Sandeep last
resided with the defendant no.1. From the above, the defendant will
have to prove her case by leading cogent evidence that suit flat no.2
is “shared household” for residence rights under DV Act. She never
approached the competent court seeking urgent order of residence in
last 4 years. Therefore, there is no evidence on record to establish
that the defendant no. 1 has right of residence in the suit flat no. 2.
It may be highlighted that the DV Act does not confer any title or
proprietary rights in favour of the aggrieved person but merely
secures a right of residence in the shared household. The senior
citizens in the evening of their life are also entitled to live
peacefully not haunted by marital discord between their son and
daughter-in-law. While granting relief both in application under
Section 12 of Act, 2005 or in any civil proceedings, the Court has to
balance the rights of both the parties. For all the above reasons, the
plaintiff has made out a
prima facie case for grant of temporary
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injunction in her favour. Hence following order is passed :
ORDER
1. The Notice of Motion no.1656 of 2020 is allowed.
2. The defendants, their agents, servants or any persons on their
behalf are temporarily restrained from dispossessing, interfering
and/or disturbing peaceful possession of the plaintiff over the
suit flat no.2 i.e. flat no. 503, C-1 admeasuring about 510
built-up sq. ft., situated at Neel Yog Apartment, 5th Floor,
Gauri Shankar Wadi No.2, Panth Nagar, Ghatkopar(E), Mumbai
400 075 till final disposal of the suit.
3. Costs in cause
sd/-
(C. V. Marathe)
Judge,
Date : 04.02.2021. City Civil Court, Gr. Mumbai.
Dictated on : 02.02.2021
Transcribed on : 03.02.2021
Signed by HHJ on : 04.02.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.02.2021 at 1.41 p.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
04/01/2021
JUDGMENT/ORDER signed by
P.O. on
04/02/2021
JUDGMENT/ORDER uploaded
on
04/02/2021
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