Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2050/19 (Suit 2218/17)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.2050/2019
IN
S.C. SUIT NO.2218/2017
Mallika Arvind Phansalkar ..Plaintiff
V/s.
1. Ashutosh Arvind Phansalkar
2. Vaibhav Arvind Phansalkar ..Defendants
Appearance:
Adv. Mr. V.R Tripathi for plaintiff.
Adv. Mr. Jain for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 26.7.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintiff
seeking relief of mandatory injunction against the defendants and for
maintaining status quo in respect of suit premises i.e. Flat no.4, ground
floor, Lalat CHS Ltd (Keni Apartment), Dilip Gupte Marg, Mahim,
Mumbai16. The plaintiff has also sought injunction against the
defendants i.e. not to enter any third party in the suit premises, or
should not create any third party interest. The notice of motion is
supported by an affidavit of the plaintiff Mallika Phansalkar. The
defendants have opposed the notice of motion by filing affidavit in reply
along with some documents.
2. I have perused the notice of motion along with supporting
affidavit and the affidavit in reply filed on behalf of the defendants. I
have also heard oral submissions of Ld. Counsels for both sides.
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2 N/M 2050/19 (Suit 2218/17)
3. Briefly stated it is the case of the plaintiff that, she has filed
the suit against defendants seeking injunction and to restrict the
defendant from creating any third party interest in respect of suit
premises or parting of the possession of the same to third party and not
disturb use and occupation of the suit premises by the plaintiff.
4. It is contended by the plaintiff that, the suit premises is an
inherited property of the plaintiff and defendants and both have equal
share. The plaintiff is claiming 1/3rd share in the suit premises as per
amended claim in the suit. The said premises are residential premises
and occupied by the plaintiff to the extent of her share. The defendants
do not reside in the suit premises but they have given the suit premises
to third party by name Mr. Singh on leave and license basis. The
plaintiff's use and occupation in the suit premises has been restricted
only to one room by making partition wall in between.
5. It is submitted on behalf of the plaintiff that, in order to
deprive the plaintiff of her right to share in the suit premises, the
defendants have illegally put a partition wall. The main grievance of the
plaintiff is that, the defendants have illegally allowed to enter the third
party in the premises on the basis of leave and license agreement. As
per information of the plaintiff, the said agreement was to expire in the
month of JuneJuly, 2019. The above act of the defendants to lease out
the part of the suit premises without consent of the plaintiff is illegal
and it may create difficulty for the plaintiff and threat to her survival in
the suit premises. The plaintiff is a woman having small children and
she cannot live in the suit premises, if stranger occupies the part of the
suit premises, without her consent. Therefore the plaintiff is having
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3 N/M 2050/19 (Suit 2218/17)
strong objection to the defendants' act to allow the stranger person to
reside in the suit premises on leave and license basis. Hence, this
motion is taken out seeking temporary injunction order from this court
during the pendency of the suit.
6. The defendants have strongly opposed the contentions
made by the plaintiff in the affidavit in reply and submitted that, the
notice of motion, as framed and filed, is not maintainable in law. The
defendants have relied upon W.S. for opposing the notice of motion. Ld.
Counsel for the defendants argued that, at the initial stage, the plaintiff
had prayed for interim relief, but this Court had refused to grant any
interim relief. It was submitted that, initially the plaintiff was claiming
entire suit premises as owner of the same but now she has restricted her
claim to 1/3rd share of the suit premise. It was submitted that, since the
year 2015, suit premises have been let out by the defendants. No new
facts have come on record to oppose the above action of the defendants
by the plaintiff. There is no cause of action for maintaining the notice of
motion at a belated stage. The motion has been taken out by the
plaintiff only to harass the defendants and to pressurize them.
7. Ld. Counsel for the defendants further submitted that, the
grievance of the plaintiff that, if part of the suit premises is let out to the
stranger it will create difficulty for the plaintiff, has no substance and
justification. There has been no single instance narrated by the plaintiff
to show that there is threat to her and her survival in the suit premises
in view of letting out the part of the suit premises by the defendants to
the 3rd party. The person, to whom the part of the suit premises are let
out, is a family man and does not have any objectionable behaviour or
there is no possibility of causing any nuisance by him to the society,
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4 N/M 2050/19 (Suit 2218/17)
including the plaintiff. The question of inducting 3rd person or creating
any right with reference to the leave and license agreement does not
arise in the present case because the plaintiff herself has admitted in the
plaint that, the licensee is occupying suit premises since the year 2015,
therefore, considering the above facts, prima facie, no case is made out
by the plaintiff to grant the relief as prayed in the motion. If the Notice
of Motion is allowed, it will cause irreparable loss and hardship to the
defendants as they will be deprived of their legal right in respect of the
suit premises of use and occupation of the same or to deal with the part
of the suit premises. Ld. Counsel for the defendants has produced on
record photocopy of the lease agreement in respect of the suit premises
executed in favour of one Nilesh Singh and lease agreement is dated
18.6.2019. It is a registered agreement. It is for a period of 11 months
w.e.f. 01.7.2019. Ld. Counsel for the defendants has also produced
photocopy of the certificate issued by the Lalat CHS Ltd. dated
19.6.2019, stating that Mr. Singh, who is residing in the flat no.4 as
tenant of Ashutos Phansalkar, is a family person with two children and
has a decent behaviour and that the society has consented for allowing
stay of family person as tenant in the society.
8. After considering the rival contentions made on behalf of
the parties before court and after taking into consideration prima facie
documentary evidence on record, it can be seen that, the plaintiff is
sister of defendants no.1 and 2 and both the plaintiff and defendants
are respectively daughter and son of late Smt. Namita Arvind
Phansalkar and Arvind Phansalkar. The plaintiff is claiming perpetual
injunction against the defendants not to disturb her peaceful use and
occupation in the suit premises or creating any 3rd party interest in the
suit flat. It is thus clear that, the plaintiff and defendants both are legal
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5 N/M 2050/19 (Suit 2218/17)
heirs and successors of their parents and they have equal share in the
suit premise. The plaintiff is seeking relief of injunction against the
defendants preventing the defendants from letting out part of suit
premise to 3rd party i.e. licensee Mr. Singh, but it has come on record
that the leave and license agreement has been in existence from the
year 2015 and in the month of July, 2019 the same has been renewed
for the period of 11 months by the defendants. Therefore, preventive
relief sought for by the plaintiff has become infructuous to that extent.
Even otherwise, if the claim of the plaintiff is considered on merit while
deciding prima facie case and balance of convenience, it is a settled
legal position that coowner cannot seek injunction against coowner
and court has no jurisdiction to pass such orders. Under the above
circumstances, I am of the opinion that, the notice of motion taken out
by the plaintiff does not survive for adjudication as it has become
infructuous and even on merit also, no relief can be granted to the
plaintiff, as prayed in the motion.
9. In fact, it appears to be a family dispute and therefore, it is
obvious that both the parties should sit together and sort out their
differences amicably by taking recourse of ADR mechanism before
proceeding with trial of the case. That option is always open to the
parties in view of amended provisions of CPC.
10. Under the above circumstances, I am also of the opinion
that if the notice of motion is allowed, it will cause prejudice to the
defendants and will result irreparable loss. On the other hand, if the
notice of motion is not allowed and trial of the case is expedited, it will
serve the purpose of the parties. Hence, I proceed to pass following
order:
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6 N/M 2050/19 (Suit 2218/17)
ORDER
1. N/M No. 2050/2019 stands rejected as the relief has
become infructuous.
2. In the circumstances of the case, trial shall be expedited
and Ld. Counsels for both sides are expected to
cooperate with the Court for early trial and disposal.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date:26.7.2019 Gr. Bombay (C.R. 03)
Dictated on :26.7.2019
Typed on : 29.7.2019
Signed by HHJ on : 30.7.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :31.7.19
TIME: 12.40 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 26.7.19
Judgment/ order signed by P.O on 30.7.19
Judgment/ order uploaded on 31.7.19
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