Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft NM in SCSU 2050-2019
IN THE CITY CIVIL COURT AT MUMBAI.
DRAFT NOTICE OF MOTION OF PLAINTIFF TENDERED ON 20/01/2021
IN
SC SUIT NO.2050 Of 2019.
(CNR No.MHCC01-007195--2019)
Mr. Gurdip S/o. Dharam Singh Chass, }
Age : 69 years. }
R/o. Guruprasad 74, Mysore Colony, }
Chembur, Bombay-400 074. }...PLAINTIFF.
VERSUS
1.Smt. Surinder Kaur w/o. Gurdip Singh }
Aged:70 years }
2.Mr. Tejinder Gurdip Singh }
Age: 45 years }
3.Mrs. Simie W/o.Tejinder Singh }
Age:45 years }
All R/o. Guruprasad 74, Mysore Colony, }
Chembur, Bombay-400 074. }
4.Mysore Co-op. Housing Society Ltd. }
Having address Mysore Colony, }
Chembur, Bombay-400 074. }...DEFENDANTS.
AND
Police Station Incharge }
RCF Police Station to be served through }
Government Pleader, City Civil Court, }
Mumbai. }...RESPONDENT.
---------------------------------------------------------------------------------------------------
Shri.Sarogi, learned advocate for the plaintiff.
Shri.Kanchan, learned advocate for defendant Nos.1 to 3.
-----------------------------------------------------------------------------------------
CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
-----------------------------------------------------------------------------------------
O R A L O R D E R
(Delivered on 21/01/2021)
1. By filing this Notice of Motion, plaintiff has prayed to pass
a temporary order of injunction directing the respondent to render him
necessary assistance in case if any of his relatives such as married
daughter, brother etc. intend to visit the plaintiff at the suit premises.
-- 1 of 7 --
2 Draft NM in SCSU 2050-2019
2. Read the Draft Notice of Motion & affidavit filed in support.
Read the reply filed by defendant Nos.1 to 3. Heard learned Shri.Sarogi
advocate for the plaintiff and learned Shri.Yogendra Kanchan advocate
for defendant Nos.1 to 3. Perused the entire record.
3. Learned advocate for the plaintiff argued that in the order
passed on the plaintiff's Notion of Motion, this court has observed that
married daughter of the plaintiff can visit the suit premises despite
which, defendant Nos.1 to 3 are not allowing the married daughter and
brother of the plaintiff to visit the suit premises. He argued that there
was a marriage in the family, relatives of plaintiff including married
daughter and brothers of the plaintiff intended to visit the suit premises
during a period between 21/12/2020 to 26/12/2020 for attending said
marriage hence, plaintiff had claimed assistance from the respondent by
sending letter dtd.16/12/2020 but respondent has not rendered any
protection to the plaintiff as a result of which, relatives of the plaintiff
were prevented by defendant Nos.1 to 3 from attending the plaintiff by
visiting the suit premises. He argued that plaintiff is aged about 70
years and he has every right to visit his married daughter and brothers
at the suit premises yet, defendant Nos.1 to 3 are causing obstruction
and hence, plaintiff is entitled for relief claimed.
4. As against this, learned advocate for defendant Nos.1 to 3
argued that this court though has observed in the order passed in
plaintiff's earlier Notice of Motion that the married daughter of plaintiff
can visit the suit premises, any relief in that regard is not granted in
favour of the plaintiff. He argued that even though any final relief in
view of those observation is not granted by this court, defendant Nos.1
to 3 have never obstructed the married daughter of the plaintiff to visit
the suit premises. He argued that married daughter of plaintiff and
-- 2 of 7 --
3 Draft NM in SCSU 2050-2019
brothers of plaintiff are parties to the proceedings filed by present
defendant No.1 under the Domestic Violence Act and despite passing
order that defendant No.1 shall not be subjected to domestic violence,
present plaintiff tried to induct his brother and brother's wife in the suit
premises in respect of which, NC Complaint is registered by the police
on 27/10/2019. He argued argued that defendant No.1 has filed an
application to issue show cause notice to the respondent before the
learned Metropolitan Magistrate in a case under Domestic Violence Act
as the officer of respondent had shouted at & scolded defendant No.1
by calling her to the police station. He argued that plaintiff is trying to
induct his brothers in the suit premises by obtaining order of police
protection from the court despite pendancy of the proceeding under
Domestic Violence Act and hence, plaintiff is not entitled for the relief
claimed in this Notice of Motion.
5. It is not in dispute that defendant No.1 is the wife and
defendant No.2 is the son of the plaintiff. It is also not in dispute that
defendant No.3 is the wife of defendant No.2. Admittedly, plaintiff and
defendant Nos.1 to 3 are residing in the suit premises and proceedings
filed by defendant No.1 against the plaintiff under Domestic Violence
Act are pending in the court of learned Metropolitan Magistrate.
Admittedly, Notice of Motion No.2999 of 2019 filed by the plaintiff in
the present suit is partly made absolute in terms of its prayer clause-(b)
as per order dtd.09/11/2020 whereby defendants are temporarily
restrained from disturbing plaintiff's possession over the suit premises
pending final decision of the suit. It is the only relief granted in favour
of the plaintiff while allowing said earlier Notice of Motion.
6. Having gone through the said order, I found substance in
the argument of learned advocate for the plaintiff that this court has
-- 3 of 7 --
4 Draft NM in SCSU 2050-2019
observed in the said order that the married daughter of the plaintiff can
visit the suit premises. Admittedly, despite making observation as above,
this court has not granted any relief in favour of the plaintiff for
restraining the defendants from obstructing the married daughter of the
plaintiff to visit the suit premises. As any relief is not granted to that
effect, this court is of the opinion that if the prayer made in this Notice
of Motion is accepted, it would mean that the relief which was not
granted earlier is now granted which cannot be done and hence,
plaintiff is not entitled for the relief claimed. As there is observation in
the order passed in Notice of Motion No.2999 of 2019 that married
daughter of the plaintiff can visit the suit premises, it will have to be
seen whether, in view of said observation, plaintiff is entitled for the
relief claimed?
7. Learned advocate for the plaintiff submitted that plaintiff
had claimed assistance from the respondent by sending a letter
dt.16/12/2020 by informing that plaintiff's brother & married sister are
required to stay with the plaintiff in the suit premises from 21/12/2020
to 26/12/2020 as there was a marriage in the family but respondent did
not render any assistance as a result of which, defendant Nos.1 to 3 did
not allow plaintiff's those relatives to enter the suit premises hence, it is
necessary to issue direction to the PS concerned in that regard as,
according to him, the relatives of the plaintiff are very much entitled to
visit the plaintiff by going to the suit premises.
8. Defendant Nos.1 to 3 have produced on record copy of
application dtd.07/01/2021 filed by them before learned Metropolitan
Magistrate in the proceedings filed under the Domestic Violence Act and
copy of Show Cause Notice issued to the respondent by the said court.
Having gone through those copies, I found that defendant No1 has
-- 4 of 7 --
5 Draft NM in SCSU 2050-2019
complained before the learned Metropolitan Magistrate that on receipt
of a mobile call on 05/01/2021, she had attended PS RCF at 8.00 p.m.
where the plaintiff was already present and the officer at the said police
station had shouted at the plaintiff by questioning her as to why she is
not allowing the plaintiff peacefully and why daughter & other relatives
of the plaintiff cannot stay in the house as plaintiff is the owner of the
house. Copy of notice produced by the defendants shows that on filing
of the said application, learned Metropolitan Magistrate has issued a
Show Cause Notice to the Sr.Inspector of PS RCF (to the respondent).
Plaintiff has not denied the statements made to that effect by the
defendant Nos.1 to 3 in their reply by filing rejoinder. Apparently, the
contention raised by the plaintiff in the affidavit filed in support of
Notice of Motion is not acceptable that respondent has not rendered any
assistance to the plaintiff.
9. Even otherwise also, as mentioned earlier, Show Cause
Notice is issued to the respondent by learned Metropolitan Magistrate.
Considering it, it would not be just for this court to issue direction to
the respondent as is prayed in the present Notice of Motion especially
because, prayer made in earlier filed Notice of Motion No.2999 of 2019
by the plaintiff is not accepted by this court as per order dt.09/11/2020
despite observing that the married daughter of the plaintiff can visit the
suit premises. Again, learned advocate for defendant Nos.1 to 3 stated
at the bar that defendant Nos.1 to 3 have not objected the married
daughter of the plaintiff to visit the plaintiff by coming to the suit
premises but she cannot stay permanently in the suit premises as is
observed by this court in the order passed in Notice of Motion No.2999
of 2020. Neither
prima facie case not balance of convenience do lie in
favour of the plaintiff so far as the relief claimed in the present Notice
-- 5 of 7 --
6 Draft NM in SCSU 2050-2019
of Motion. In the result, there is not question of causing any irreparable
loss to the plaintiff is relief as claimed in not granted in his favour. For
these reasons, holding that plaintiff is not entitled for the relief
claimed, I pass the following order.
ORDER
Draft Notice of Motion tendered on 20.01.2021 by the
plaintiff in SC Suit No.2050 of 2019 stands rejected.
Said draft Notice of Motion be got registered for statistical
purposes.
Date : 21/01/2021. (P.P.RAJVAIDYA)
Dictated on : 21/01/2021. Judge, C.R.No.9,
Checked on : 21/01/2021. City Civil Court,
Signed on : 21/01/2021. Mumbai.
-- 6 of 7 --
7 Draft NM in SCSU 2050-2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
25.01.2021 at 11.30 a.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.9)
Date of pronouncement of Order 21/01/2021.
Order signed by P.O. on 21/01/2021.
Order uploaded on 25/01/2021.
-- 7 of 7 --