Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2439-19 in SU 1586-19
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.2439 OF 2019
(CNR No.MHCC01-013247-2019)
IN
SUIT NO.1586 OF 2019.
(CNR No.MHCC01-011822-2019)
Raziya Ahmedmiya Kadiwala }...PLAINTIFF.
Versus
Nasir Nathekhan Kadiwala & Ors. }...DEFENDANTS.
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Shri.Sanket Mungle, learned advocate for the plaintiff.
None appeared for the defendants.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 27/09/2021)
1. By filing this Notice of Motion, plaintiff has claimed reliefs
as under;
a. That pending the hearing and final disposal of the Suit, this
Hon’ble court be pleased to appoint the Court Receiver, High Court,
Bombay as a receiver in respect of the suit premises viz. Flat No.602, 6th
Floor, Akash Horizon Premises Co-operative Society Limited, situate at
Mahalaxmi (Clark Road), Sane Guruji Marg, Dr.Nair Road, Agripada,
Mumbai 400 011 admeasuring 693 sq.ft. built-up area with all the
powers under Rule 1 of Order XL of the Code of Civil Procedure, 1908;
b. That pending the hearing and final disposal of the Suit, this
Hon’ble Court be pleased to grant an order and injunction restraining
the Defendants, their servants, agents and/or any person claiming by,
through and/or under them from in any manner disturbing, obstructing,
interfering with and/or creating hurdles to the free and unobstructed
ingress and egress of the Plaintiff, her servants, agents and/or any
person/s claiming by, through and/or under her to the entry and the
occupation and possession in respect of the suit premises viz. Flat
No.602, 6th Floor, Akash Horizon Premises Co-operative Society
Limited, situated at Mahalaxmi (Clark Road), Sane Guruji Marg, Dr.
Nair Road, Agripada, Mumbai 400 011 admeasuring 693 sq.ft. built-up
area or any part thereof;
c. That pending the hearing and final disposal of the Suit, this
Hon’ble Court be pleased to grant an order and injunction restraining
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the Defendants, their servants, agents and/or any person claiming by,
through and/or under them from in any manner selling, conveying,
granting, alienating, assigning, transferring and/or creating third party
rights of any nature and/or encumbrances and/or parting with
possession in respect of the suit premises viz. Flat No.602, 6th Floor,
Akash Horizon Premises Co-operative Society Limited, situate at
Mahalaxmi (Clark Road), Sane Guruji Marg, Dr.Nair Road, Agripada,
Mumbai-11 admeasuring 693 sq.ft. built-up area or any part thereof;
2. Read the affidavit filed in support of Notice of Motion by
the plaintiff and affidavit-in-reply filed by defendants. Heard learned
Shri.Mungle advocate for the plaintiff. Despite granting several
opportunities, nobody appeared for defendants to advance argument
hence, Notice of Motion is taken up for consideration on merits. Perused
the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiff?
...Yes for prayer
clause-c only.
ii) Whether balance of convenience lies in her
favour? ...Partly yes.
iii) Whether irreparable loss will cause to the
plaintiff if interim injunctions as prayed are not
granted?
...Yes for prayer
clause-c only.
iv) Is it necessary to appoint the Court Receiver? ...No.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. The three Points are taken together for consideration.
Learned advocate for the plaintiff argued that plaintiff is having 50%
ownership rights in respect of suit flat, letters of administration has
been granted by Hon’ble High Court in favour of plaintiff in respect of
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her those 50% ownership rights yet the defendants are illegally denying
the rights of plaintiff in the suit flat. He argued that plaintiff was in joint
use and occupation of the suit flat with the defendants, plaintiff had
been to village Kadi in Gujrat State for treatment where she temporarily
resided for few days but defendants are now illegally obstructing her
entry and free ingress-egress in the suit flat. He argued that there is no
partition of the suit flat between the plaintiff and defendants because of
which, plaintiff has the right to be in possession of every part and parcel
of the suit flat. He argued that defendant Nos.1 to 3 assaulted the
plaintiff on 16/04/2019 when she tried to enter into the suit flat in
respect of which, plaintiff has filed a report but police has not taken any
action. He argued that plaintiff is senior citizen aged more than 65
years and she is being deprived of her legitimate rights in the suit flat by
defendant Nos.1 to 3 by illegally restricting her entry hence, plaintiff is
entitled for interim injunction in terms of prayer clause-b of the Notice
of Motion. He argued that defendants may dispose off the suit flat
behind back of plaintiff hence, plaintiff is entitled for interim injunction
in terms of prayer clause-c of Notice of Motion. He argued that it is
necessary to appoint Court Receiver to protect the suit flat and hence,
plaintiff is entitled for relief in terms of prayer clause-a also of the
Notice of Motion. In support of his argument, learned advocate for the
plaintiff has placed reliance on the following authorities.
i)
Kochkunju Nair Vs. Koshy Akexander and ors.
reported in
(1993)3 Supreme Court Cases 482,
ii)
Dorab Cawasji Warden Vs. Coomi Sorab Warden
reported in
AIR 1990 Supreme Court 867,
iii)
Jai Singh Vs. Gurmej reported in
(2009)15 SCC 747.
I have gone through those authorities.
5. As mentioned earlier, nobody appeared for the defendants
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to advance argument hence, Notice of Motion is taken up for
consideration on merits.
6. In brief, case of plaintiff may be stated as under;
Ahmedmiya was the husband of the plaintiff who expired
on 22/03/2008. Defendants are claiming themselves to be the heirs and
legal representatives of Aminabibi who expired on 31/05/2014.
Ahmedmiya and Aminabibi have purchased suit flat under agreement
for sale dtd.30/01/1978 and concerned Society has issued share
certificate in joint names of Ahmedmiya and Aminabibi but entire sale
consideration was paid by Ahmedmiya alone. Application filed by the
plaintiff in year 2014 for issuing membership by adding her name in the
share certificate in view of death of her husband has been rejected by
the Society on the ground the plaintiff has not produced succession
certificate. Plaintiff had filed appeal against said order which was
allowed by the Co-operative Court as per Order dtd.16/06/2014 and in
view of said order, share certificate to the extent of 50% share in the
suit flat has been issued by the Society. Defendant Nos.1 & 2 had filed
Revision against order dt.16/06/2014 which was allowed as per order
dtd.27/04/2017. Writ Petition filed by the plaintiff against said order
dtd.27/04/2017 is pending.
7. In a Dispute filed before Co-operative Court in year 2014,
plaintiff had filed an application for temporary mandatory injunction
for restraining present defendant Nos.1 & 2 from obstructing her entry
in the suit flat which was allowed. Appeal filed by defendant Nos.1 & 2
against said order has been allowed as per Judgment dtd.30/11/2015.
Plaintiff had filed Writ Petition against the Judgment dtd.30/11/2015
which is dismissed on 18/01/2016 account of dismissal of the main
dispute in default by the Co-operative Court on 11/01/2016. Co-
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operative Court had restored said Dispute but plaintiff has withdrawn
said Dispute on 18/04/2018. Plaintiff had thereafter filed a Petition for
grant of letters of administration and Hon'ble High Court is pleased to
grant letters of administration on 09/03/2018 to the extent of her 50%
share in the suit flat. Defendant Nos.1 and 2 had filed an application
with the Society on 03/08/2016 on the basis of forged and fabricated
duplicate share certificate for illegally obtaining membership of the
Society in respect of which, plaintiff has lodged report with the police.
Defendant No.1 had filed appeal under Section 22(2) of MCS Act in
respect of rejection of her membership to the extent of 50% share of
Aminabibi which has been dismissed.
8. Plaintiff has been residing in the suit flat along with her
husband and she continued to reside in the suit flat even after death of
her husband. Plaintiff had been to village Kadi in Gujrat State for
treatment where she was residing temporarily. Defendants are well
aware that plaintiff is 50% owner in respect of the suit flat yet they are
illegally obstructing her entry, ingress and egress in the suit flat in
respect of which, plaintiff has lodged various complaints. Plaintiff had
tried to enter into the suit flat on 16/04/2019 but she was obstructed
by defendant Nos.1 to 3. Plaintiff had been to the police station but
police has refused to lodge report by saying that the dispute is of civil
nature. It is on those grounds, plaintiff has filed the suit for permanent
injunction for restraining the defendants from obstructing her entry and
free ingress-egress in the suit flat and for restraining the defendants
from creating third party interests in the suit flat.
9. In their reply, defendant Nos.1 to 3 have not disputed the
contentions raised by the plaintiff in plaint about filing of Disputes,
Appeal, Writ Petition and passing of Orders in those proceedings but
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according to them, suit is barred by Law of Limitation. Defendant Nos.1
to 3 have contended that sale consideration for purchase of the suit flat
was given by the partnership firm wherein, husband of plaintiff was
having 25% share only and plaintiff is wrongly claiming 50% share in
the suit flat. It is contended that plaintiff has obtained letters of
administration by playing fraud upon Hon'ble High Court. Defendant
Nos.1 to 3 have contended that brother-in-law of the plaintiff had filed
Suit No.76/2012 against them in the City Civil Court by contending that
husband of present plaintiff has gifted his share in the suit flat to him
with consent of present plaintiff. It is contended that brother-in-law of
the plaintiff had taken out Notice of Motion for similar relief in said suit
which came to be rejected after which, plaintiff has created false
documents like AADHAR Card and flied this false suit.
10. Defendant Nos.1 to 3 have contended that plaintiff never
resided in the suit flat during lifetime of her husband and even after his
death. It is contended that plaintiff tried to enter into the suit premises
forcibly with the help of her relatives in respect of which, FIR is
registered by the police. It is contended that suit is hit by res-judicata on
account of the orders passed by Co-operative Court & Appellate Court.
It is contended that the documents produced by the plaintiff are not
conclusive proof of her residence at the suit premises. It is denied that
plaintiff is heir of Ahmedmiya and she is co-owner in respect of the suit
flat. Defendant Nos.1 to 3 have denied that plaintiff had tried to enter
into the suit flat on 16/04/2019 but she was physically obstructed by
them. Defendant Nos.1 to 3 have contended that plaintiff is not entitled
for interim relief hence Notice of Motion is liable to be dismissed.
11. Contention of the plaintiff that suit flat is purchased in the
joint names of Ahmedmiya and Aminabibi is supported by copy of
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agreement for sale dt.30/1/1978 produced on record by her. Defendants
have denied that plaintiff is the widow of Ahemedmiya however, said
denial is not acceptable, at least at this stage, because plaintiff has
produced various documents including copy of Letters of Administration
granted by Hon’ble High Court wherein, name of plaintiff is mentioned
as widow of deceased Ahemedmiya. Defendants are the heirs and legal
representative of deceased Aminabi. It does not appear to be in dispute
that share certificate in respect of the suit flat has been issued in the
joint names of Ahemedmiya and Aminabibi. Filing of proceedings before
Co-Operative Court, Co-Operative Appellate Court so also, before
Hon'ble High Court in respect of suit flat and respective contentions
raised by plaintiff and defendant Nos.1 to 3 about passing of orders in
those proceedings are supported by the copies of orders produced on
record by both the parties.
12. Defendants have denied the contention of the plaintiff that
she is the co-owner in respect of the suit flat however their said
contention is not acceptable because, contention of the plaintiff that
Hon'ble high Court is pleased to grant Letters of Administration in her
favour in respect of 50% share in the suit flat is supported by copy of
Letters of Administration produced on record by her.
13. Learned advocate for plaintiff argued that in the authorities
on which reliance is placed by him, law is laid down that if an owner is
wrongly deprived of possession of his property, he has a right to be put
in possession thereof and all co-owners have equal rights, co-ordinate
interest in the property though their interest may be either fixed or
indeterminate hence, according to him, plaintiff is entitled to have free
ingress and egress in the suit flat being its co-owner.
14. Contention of the plaintiff is that she was residing in the
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suit flat during lifetime of her husband and even after the death of her
husband. Plaintiff has produced copy of Passport of her husband which
appears to have issued in year 2004. Said copy is not sufficient for
accepting that plaintiff was residing in the suit flat. Name of plaintiff is
available along with the names of defendants in the copy of Ration Card
produced by the plaintiff. Defendants have also produced copy of Ration
Card wherein, name of plaintiff is not available. There is no material to
show as to when name of the plaintiff is entered in the Ration Card of
which, copy is produced on record by her. Considering it and copy of
Ration Card produced by the defendants, this court is of the opinion
that copy of Ration Card produced by the plaintiff is not sufficient at
this stage for accepting her contention that she was residing in the suit
flat along with defendants.
15. Plaintiff has contended that she had been to village Kadi in
Gujrat State for treatment where she was residing temporarily and after
her coming back to Mumbai, defendants did not allow her to enter into
the suit flat. Plaintiff has not stated till which date she was residing at
the suit flat. She has not stated when she had been to village Kadi.
Likewise, she has not given the details of the ailment for treatment of
which, she had allegedly been to village Kadi. She has not produced any
medical papers in support of her said contention. Furthermore, copy of
death certificate produced by the plaintiff herself shows that her
husband expired on 22/03/2008 at village Kadi in Gujrat State.
Defendants have produced copy of Election ID Card issued in the name
of plaintiff on the address of village Kadi in Gujrat State. Having regards
to it, this court is of the opinion that even though the contention of
plaintiff is
prima facie acceptable that she is co-owner of the suit flat
along with the defendants, the material available on record is not
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sufficient for accepting that plaintiff was jointly residing in the suit flat
along with the defendants.
16. Defendant Nos.1 to 3 have contended that brother-in-law
of the plaintiff had filed Suit No.76/2012 against them in respect of suit
flat wherein, brother-in-law of the plaintiff had filed a Notice of Motion
for claiming similar type of temporary injunction by raising a contention
that husband of plaintiff has gifted his 50% share in the suit flat to him
with consent of the present plaintiff but said Notice of Motion is
dismissed. Those contentions of the defendants are supported by the
copy of order dt.27/09/2012 passed by this Court in N.M.No.122/2012
in Short Cause Suit No.76/2012. Plaintiff has not filed rejoinder for
denying those contentions of the defendants. Considering it and the
contentions raised by brother-in-law of the plaintiff in said earlier suit
that he is in joint possession of the suit flat along with the defendants,
contention of plaintiff is not acceptable that she was in joint possession
of suit flat along with the defendants.
17. Plaintiff has produced copies of electricity bills standing in
the name of her husband which are of year 2014. Those copies are
sufficient for accepting rights of husband of plaintiff in the suit flat but
not sufficient for accepting the contention of plaintiff, at least at this
stage, that she was residing in the suit flat during the period of those
bills. Copies of AADHAR Card and bank statement produced by the
plaintiff appear to have obtained after dismissal of N.M.No.122/2012
taken out by the brother-in-law of the plaintiff in Suit No.76/2012.
Those documents are not primafacie sufficient at this stage for
accepting that plaintiff was residing jointly in the suit flat along with
the defendants especially because, plaintiff has not produced documents
in respect of taking of treatment by her at village Kadi. The copies of
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receipts issued by the society are in the joint names of plaintiff and
defendants which though appear sufficient for accepting co-ownership
of the plaintiff, these copies are not sufficient for accepting joint
possession of the plaintiff in the suit flat along with defendants.
18. In a case of
Jai Singh Vs. Gurmej cited above, Hon'ble Apex
Court has laid down the principles relating to the
interse rights and
liabilities of the co-shares. Hon'ble Apex Court is pleased to hold that
when a co-sharer is in exclusive possession of some portion of the joint
holding he is in possession thereof as a co-sharer and is entitled to
continue in its possession if it is not more than his share till the joint
holding is partitioned. It is clear that prayer clause-b of the Notice of
Motion is in the form of temporary mandatory injunction. As is laid
down by Hon'ble Apex Court in a case of
Dorab Cawasji Vs. Coomi cited
above, interlocutory mandatory injunction can be granted only if
plaintiff has a strong case for trial and it shall be of a higher standard
than a
prima facie case that is normally required for prohibitory
injunction. Here in the matter in hands, as mentioned earlier, material
available on record is not sufficient at this stage for accepting that
plaintiff was in joint possession of suit flat along with defendants due to
which, even though plaintiff is the co-owner of the suit flat along with
the defendants, this court is of the opinion that neither
prima facie case
nor balance of convenience do lie in her favour in respect of prayer
clause-b of the Notice of Motion because the remedy open to the
plaintiff is by way of a suit for partition and separate possession of her
share in the suit flat. Thus, there is no question of causing irreparable
loss to the plaintiff if injunction in terms of prayer clause-b is not
granted in her favour.
19. So far as prayer clause-c of the plaint is concerned, learned
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advocate for plaintiff argued that defendants may dispose off the suit
flat due to which, it is necessary to restrain them from doing so pending
final decision of the suit. Even though, there appears substance in the
contention of defendant Nos.1 to 3 that plaintiff had claimed similar
type of relief by filing a Dispute before the Co-operative Court and
hence, the relief claimed in this Notice of Motion is hit by resjudicata, I
found no force in said contention because, Dispute before Co-operative
Court was filed before grant of Letters of Administration. Claim in this
suit is based on Letters of Administration granted in favour of plaintiff
as mentioned here-in-above. Since plaintiff is co-owner of the suit flat
along with the defendants, she is entitled to protect her rights in the
suit flat pending final decision of the suit hence, this court is of the
opinion that
prima facie case and balance of convenience both do lie in
favour of the plaintiff in respect of prayer clause-c of the plaint. This
court is satisfied that if temporary injunction in terms of prayer clause-c
is not granted in favour of the plaintiff, it will cause an irreparable loss
to her due to which, she is entitled for temporary injunction in terms of
prayer clause-c of the Notice of Motion.
For these reasons, I recorded my findings on Point Nos.(i)
to (iii) accordingly.
AS TO POINT NO.(iv):
20. Plaintiff has prayed to appoint Court Receiver in terms of
prayer clause-a of the Notice of Motion. This court has already held that
plaintiff is entitled for interim injunction for restraining the defendants
from creating third party interests in the suit flat, pending final decision
of the suit. There is nothing on record to show that defendants are
trying to cause damage to the suit flat in any manner due to which, this
court is of the opinion that it is not necessary to appoint a court receiver
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as is prayed by the plaintiff. For these reasons, I recorded my finding on
Point No.(iv) accordingly.
Thus, an order.
O R D E R
Notice of Motion No.2439 of 2019 is partly allowed in
terms of prayer clause “c” only.
Date : 27/09/2021. (P.P.RAJVAIDYA)
Dictated on : 27/09/2021. Judge, C.R.No.62,
Checked on : 27/09/2021. City Civil Court,
Signed on : 27/09/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
04.10.2021 at 12.20 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 27.09.2021
Order signed by P.O. on 27.09.2021
Order uploaded on 04.10.2021
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