Order 2

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.2568 OF 2018
IN
S.C.SUIT NO.1762 OF 2018
Mr.Manharlal Maganlal Badiani ... Plaintiff
Versus
1. Mr.Rishab Prashmesh Barar,
2. Mrs.Dhanashree Khade Nee Barar ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 25th SEPTEMBER, 2019
Ld.Counsel Mr.B.M.Kantawala with Adv.Vyas, ld.advs. for plaintiff.
Ld.Adv.Kunal Vaishav, for defendant no.1.
Ld.Adv.Prasad Apte, for defendant no.2.
O R D E R
1. This is the Notice of Motion filed by Plaintiff for temporary
injunction for restraining Defendants, their servants, agents, assignees
or any persons claiming through or under them from entering upon suit
premises i.e. flat no.E1, 5 th floor, admeasuring about 400 sq. ft.
(carpet) situated at building known as Palm Spring, Jay Cuffe Parade
CHS Limited, Cuffe parade, Colaba Mumbai05.
2. Plaintiff Mr.Manharlal M. Badaini has filed his affidavit in
support of Notice of Motion contending that he is coowner of suit
premises which can be evidenced from the share certificate which is
annexed to the plaint as Exh.B. It is alleged that Defendant no.2 has
made an attempt to enter into suit premises on 16/05/2018 at 8.15
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p.m. while the Plaintiff refused by opening the door, Defendant no.2
has threatened of teaching a family lesson and thereby Plaintiff has
apprehension that Defendant no.2 may do such acts, they are
detrimental to Plaintiffs peaceful use, occupation of suit premises. It is
contended that right to reside in suit flat vests with Plaintiff who is the
legitimate coowner of suit premises. Afraid and distort, Plaintiff
recorded said fact with Cuffe Parade police station by letter dated
17/05/2018. Police indicated that they have only taken note of the
letter but further steps have not been taken by police. It is contended
that Plaintiff who is senior citizen apprehends that Defendant no.2 shall
do acts against the interest of Plaintiff even if Defendant no.2 can not
claim any interest being the daughter in law of daughter of Plaintiff. It
is contended that Defendant no.2 may claim right in respect to the
properties attached to Defendant no.1. Plaintiff has contended that in
view of above facts there was urgency in instituting this suit. Further,
Plaintiff has contended that if the reliefs claimed in Notice of Motion
will granted no harm will be caused to Defendants. On the contrary if
the reliefs as prayed will not be granted, Plaintiff will suffer from
irreparable loss. Plaintiff has contended that he is intending to rely
upon contentions raised in the plaint.
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3. As mentioned in the plaint, Defendants are husband and
wife residing at the address shown in the title clause of the suit. Plaintiff
is father in law of one Mr. Prashmesh Barar, to whom Plaintiff's
daughter Sushma is married. Defendant no.1 is son of Prashmesh Barar
and Mrs. Sushma Barar. As such Plaintiff is maternal grand father of
Defendant no.1. Defendant no.1 failed into love with Defendant no.2
which relegated into a marriage between Defendant which took place
on 18/05/2017. However, formal ceremony took place on 03/06/2017.
Thereafter, Defendants embarked their journey of marital bliss for
honeymoon and arrived to India towards end of June 2017. Defendants
at present are residing at the address shown in title clause in the suit
and said premises is obtained by them on leave and license agreement.
It is contended that suit premises is admeasuring 1400 sq. ft. Suit
premises was acquired by Plaintiff under a sale deed dated 07/11/2012
for which Plaintiff has paid entire money, however name of Plaintiff's
daughter Sushma is included in sale deed as a matter of convenience
because she is the only daughter of Plaintiff staying in Mumbai. Whilst
other daughters of Plaintiff are staying overseas. Copy of said sale deed
is annexed as Exh.A to the plaint. Accordingly, Plaintiff's daughter Ms.
Sushma was included in the member of Jay Cuffe Parade CHS Limited
and therefore her name is appearing in share certificate which is filed at
Exh.B with the plaint.
4. It is contended that Defendant no.1 and 2 resided briefly in
suit premises as father of Defendant no.1 is residing at a Bunglow in
joint family at Varsova and due to job facilities, Defendant no.1 had
requested Plaintiff for a temporary accommodation to which Plaintiff
allowed. That time, Defendants told that they will procure their
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premises within a period of few months and accordingly, Defendants
have procured a premises at Colaba on leave and license basis vide
agreement dated 26/04/2018. Said flat is situated at Candy Castle CHS
Ltd. Copy of leave and license agreement is annexed at Exh.C to the
plaint. It is contended that now it appeared that Defendant no.1 and 2
have interse issues which has relegated into certain outburst made by
Defendant no.2 about which Plaintiff was made aware by Defendant
no.1 and Sushma the Plaintiff's daughter also informed him about it.
On inquiry, Plaintiff came to know that Defendant no.2 is on the verge
of making matrimonial claims which Plaintiff apprehends would
relegate an alleged claim on suit premises which even otherwise is
unsustainable in law.
5. It is contended that it appears that matrimonial discords
have taken a slightly heavier turn thats why Defendant no.2 amongst
various attempt came to suit premises on 16/05/2018 at 8.15 p.m. As
Plaintiff alone is residing in suit premises and as he is senior citizen he
gave instructions to the security staff for not permitting anyone to
approach Plaintiff, however, as Defendant no.2 had briefly resided with
Defendant no.1 in suit premises, Defendant no.1 could gain access to
the building when she visited suit premises. That time Plaintiff
informed Defendant no.2 that he will not open the door. That time
Defendant no.2 threatened Plaintiff to teach a lesson to the immediate
family. Plaintiff is afraid of the conduct of Defendant no.2 and he has
learnt that Defendant no.2 has been busy with litigation and has lodged
various FIR invoking gruesome provisions of Indian Penal Code and
thereafter settled matter which deduces a conclusion in the mind of
Plaintiff that Defendant no.2 with a view to involve Plaintiff may make
an attempt to stake claim on suit premises and he will put the right of
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Plaintiff in jeopardy. It is contended that documents annexed to the
plaint make it clear that Plaintiff is coowner of suit premises and he is
residing in suit premises. Further, according to Plaintiff, Defendant
no.2 can not claim any right, title and interest in suit premises.
Defendants admittedly left premises from 26/04/2018 they are residing
in the premises obtained on leave and license basis hence according to
Plaintiff, Defendants have no right in respect of suit premises and
Defendant no.2 may claim under the laws of matrimony, such right
would only be associated with the right accrued through Defendant
no.1 because Defendant no.1 has no right in suit premises. It is
contended that no women can have any right, title or interest in the
properties other than that of her husband and especially in view of the
fact that Defendant no.2 is residing with Defendant no.1 in leave and
license premises, no semblance of right could be generated or
demanded by Defendant no.2. Defendant no.2 can not claim any
interest in the suit premises as Defendant no.2 is not daughter in law of
Plaintiff. It is contended that temporary use of suit premises does not
create a right to reside in it when Defendants are residing in an
independent leave and license premises. It is contended that
Defendants both are working and earning for gain while the Plaintiff
does not have any source of income. Suit premises is exclusive self
acquired premises and Plaintiff has right to choose as to who can be
permitted to reside in it and who can not be permitted to reside in it.
Hence, according to Plaintiff he has filed the suit for perpetual
injunction restraining Defendants from entering into suit premises.
6. Defendant no.2 Mrs. Dhanashree Khade Nee Barar has filed
her affidavit in reply contending that Notice of Motion filed by Plaintiff
is misconceived and liable to be dismissed. It is alleged that Plaintiff
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has not disclosed true facts before the court and has filed the suit
without any cause of action only with the intention to harass Defendant
no.2. According to Defendant no.2, Plaintiff being maternal grand
father of Defendant no.1, is hand in glow with Defendant no.1
therefore, Plaintiff has filed this suit to deprive Defendant no.2 from her
right of residence. It is contended that parents of Defendant no.1 are
residing in suit premises and it is contended that in plaint it is shown
that Mother in law of Defendant no.2 is staying in suit premises
therefore Plaintiff has not come before the court with clean hands.
According to Defendant n o.2 her mother in law is coowner of suit
premises having her 50 % share therein and this suit is filed without
joining mother in law of Defendant no.2 as plaint therefore suit suffers
from nonjoinder of necessary party and it is liable to be dismissed.
7. It is contended that after marriage Defendant no.1 along
with Defendant no.2 started residing at suit premises as their
matrimonial home because suit premises is admittedly jointly owned by
Plaintiff and mother in law of Defendant no.2. Further, Defendant no.2
understands that the Varsova premises bungalow is owned by the Barar
family members and therefore, same can not be considered as
matrimonial home of Defendant no.2 because her father in law and
mother in law stayed in suit premises along with Plaintiff since last
many years. Since the Varsova property belonged to Barar family, only
on religious occasions and festivals Defendants used to visit said
bungalow. Since inception Defendant no.2 was made to understand
that suit premises is her matrimonial home because her mother in law
holds 50 % share in it along with Plaintiff. Further, parents of
Defendant no.1 also staying at suit premises along with Plaintiff.
Ownership of Varsova Bungalow is not with father and mother in law of
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Defendant no.2, hence said bungalow according to Defendant no.2 can
not be termed as her matrimonial home. S. C. Suit no.1735/18 filed by
parents of Defendant no.1 in City Civil Court at Dindoshi also shows
that they have disclosed that Varsova Bungalow is their place of address
and not their owned premises.
8. It is contended that in a letter dated 10/10/2018 written by
father of Defendant no.1 Cuffe Parade police station, he has shown his
address as suit premises and therefore, according to Defendant no.2 suit
premises is her matrimonial home because her family members used to
reside at suit premises. Further her mother in law gave her address as
suit premises while purchasing ornaments. Even prior to the marriage,
Defendant no.1 wrote an email dated 02/10/2016 to Defendant no.2
and mentioned in it all his properties and his shares in the same and in
said Email Defendant no.1 has shown suit premises. About matrimonial
dispute between Defendants some pleadings are given by Defendant
no.2 alleging that Defendant no.1 harassed her and behaved with her
rudely. It is contended that parents of Defendant no.1 started
pressuring Defendant no.2 to leave suit premises however, it was
difficult for her to leave it. It is contended that Defendant no.1 asked
Defendant no.2 that she should ask her parents to purchase new house
for Defendants however she declined and thereafter, Defendant no.1 by
false representation coerced her to move leave and license premises at
Colaba. Any how, Defendant no.1 has pressurized her to reside in said
premises. Deft no.2 has also pleaded about bypolar disorder deceased
from which Defendant no.1 is suffering. It is contended that Defendant
no.1 and his family members forced Defendant no.2 to reside in
premises obtained on leave and license basis vide agreement dated
26/04/2018. Reference of complaints filed by Defendant no.2 against
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Defendant no.1 is also given in the reply and she has contended that
after those complaints, i.e. after 11/05/2018 Defendant no.1 never
came back to reside at Colaba premises which was obtained on leave
and license basis. Hence, Defendant no.2 went to suit premises, that
time, she made request to Plaintiff and mother of Defendant no.1 to
allow her to reside in suit premises but said request was not considered
by them. Thereafter, Defendant no.2 started residing at her parents
premises and hardly visited the leave and license premises just to collect
her personal belongings.
9. It is contended that though Defendant no.1 contributed
towards license fees Defendant no.1 gave post dated cheques and
therefore Defendant no.2 has apprehension that those cheques will be
dishonored and licensor can easily terminate leave and license
agreement thereafter, Defendant no.2 will be left with no home to stay
and she will have to return back to her parents house. It is contended
that Defendant no.1 has filed various proceedings against Defendant
no.2 and therefore according to Defendant no.2, Defendant no.1 and his
family members deprived Defendant no.2 from her matrimonial home
which is suit premises. According to Defendant no.2, suit premises is
her only matrimonial home. It is alleged that Plaintiff and family
members of Defendant no.1 are depriving Defendant no.2 from her
right of residence in suit premises and they made her helpless for her
residential accommodation and they left her to mercy of her parents. It
is contended that Plaintiff is hand in glow with Defendant no.1 and
family members of Defendant no.1 therefore Plaintiff has made false
allegations against Defendant no.2 and thereby deprived her from her
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right of residence in suit premises. All the allegations made in the
plaint and affidavit filed in support of Notice of Motion are denied by
Defendant no.2.
10. Plaintiff has filed his affidavit of rejoinder and denied all
the contentions raised by Defendant no.2 in her affidavit in reply. Heard
advocate for Plaintiff Mr. Kantawala, advocate for Defendant no.2 Mr.
Prasad Apte and advocate for Defendant no.1 Mr. Kunal Vaishnava.
11. Plaintiffs advocate submitted that in view of the case
between S. R. Batra and Anr v. Taruna Batra reported in (2007) 3
SCC 169, suit premises cannot be the matrimonial home of Defendant
no.2 and it can not be shared household of Defendant no.2. Plaintiffs
advocate argued that merely because mother of Defendant no.1 is
shown as cosharer of suit premises, Defendant no.2 can not claim any
right, title and interest in suit premises. Plaintiff's advocate argued that
Defendant no.2 can claim share household only in the property of her
husband or house of the family of husband. Plaintiff's advocate pointed
out that Plaintiff is maternal grand father of husband of Defendant no.2
and therefore Defendant no.2 can not have any right in suit premises
which is owned by the father of mother in law of Defendant no.2.
Plaintiff's advocate referred the leave and license agreement dated
26/04/2018 and argued that from said leave and license agreement it
becomes clear that Defendant nos.1 and 2 started separately residing in
the premises obtained by them on leave and license and hence
according to Plaintiffs advocate if really suit premises would have been
matrimonial home of Defendant no.2 or if really it would have been the
shared household of Defendant no.2, Defendants would not have
obtained the premises at Colaba on leave and license basis and they
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would not have started residing there separately. It is argued by
Plaintiff's advocate that as on the date of filing of this suit, the leave and
license agreement got executed by Defendants was in existence and on
that date, both Defendants were residing in the premises obtained by
them on leave and license therefore, Defendant no.2 can not claim that
suit premises is shared household of Defendant no.2 or it is her
matrimonial home. It is submitted that due to matrimonial disputes
between Defendants, Defendant no.2 is intending to drag Plaintiff in
their dispute and therefore, Plaintiff's apprehension that Defendant no.2
will enter in to suit premises unauthorizedly is well founded
apprehension. Family of Defendant no.1 owns a Bungalow at Varsova
and said Bungalow at the most can be the matrimonial home of
Defendant no.2 and at any cost and under any circumstances suit
premises can not be matrimonial home or shared household of
Defendant no.2, hence Plaintiff's advocate argued that reliefs as prayed
in Notice of Motion are necessary to be granted to protect valuable
ownership rights of Plaintiff over suit premises and to protect him in his
old age.
12. Advocate for Defendant no.2 argued that after marriage,
both Defendants resided in suit premises because suit premises is jointly
owned by mother of Defendant no.1 and it is matrimonial home of
Defendant no.2. It is argued that Plaintiff has allowed Defendants to
reside in suit premises initially because suit premises is matrimonial
home of Defendant no.2, however it is argued that the period of leave
and license agreement in respect of the premises which is obtained by
Defendants at Colaba has come to an end because leave and license
agreement is always for limited period. Advocate for Defendant no.2
argued that Defendant no.1 is not residing with Defendant no.2 and
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Defendant no.1 has made her helpless and therefore Plaintiff can not
restrain Defendant no.2 from entering into suit premises which is her
matrimonial home. Further it is argued that in various
correspondences, parents of Defendant no.1 have shown their address
as suit premises therefore suit premises is the only matrimonial home of
Defendant no.1, hence the reliefs as claimed in Notice of Motion cannot
be granted.
13. I have given serious consideration to the pleadings of the
parties and to the arguments advanced on behalf of the parties.
Admittedly suit premises is standing in the name of Plaintiff and
Plaintiff's daughter Sushma, who is mother in law of Defendant no.2.
Thus, suit premises is not the matrimonial home of Defendant no.2. At
this juncture, there is no evidence on record to show that mother of
Defendant no.1 has paid any consideration for purchasing suit premises.
On the contrary, plaintiff has contended that he has paid total
consideration of suit premises and for his convenience has shown
mother of defendant no.1 as coowner of the suit premises. Unless
parties to the suit adduce their evidence about the payment of
consideration amount of suit premises, I find that it cannot be said that
suit premises is matrimonial home of defendant no.2. One more aspect
is necessary to be considered, even though mother of defendant no.1
and mother in law of defendant no.2 are coowners of suit premises, it
can be termed at the most as Stridhan of mother of defendant no.1 and
mother in law of defendant no.2 and in any condition it cannot be
called as matrimonial home of defendant no.2 Admittedly, there is joint
family bungalow of the family of defendant no.1 and said bungalow is
situated at Varsova. Defendant no.2 who is wife of defendant no.1 at
the most can claim at Varsova bungalow as matrimonial home and in no
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way defendant no.2 can claim suit premises as her matrimonial home.
This is the interesting suit in which the daughter in law rather than
claiming her right in joint family bungalow of the family of husband is
claiming her rights in suit premises which is owned by the maternal
grand father of husband of defendant no.2. As suit premises is not
belonging to the family of the husband of defendant no.2 in any case
suit premises cannot become share household of defendant no.2. Merely
because maternal grandfather of defendant no.1 has shown name of
mother of defendant no.1 as the coowner of suit premises. As like all
matrimonial proceedings in this suit also as the matrimonial relations
between defendant no.1 and 2 are strained, allegations are made
against each other but any how plaintiff who is maternal grandfather of
defendant no.2 should not be required to face the consequences of the
matrimonial dispute between defendant no.1 and defendant no.2. In
title clause of plaint age of plaintiff is shown as 89 years and in this old
age if he will be required to suffer for the matrimonial disputes between
defendants, definitely it will be affecting the valuable rights of plaintiff
in suit premises. In such circumstances I find that plaintiff has made
out primaface case for granting temporary injunction for restraining
defendant's from entering into the suit premises. Secondly, both the
defendants have obtained on leave and license basis the premises for
their residence and therefore it cannot be said that defendant no.2 is
homeless and she has no alternate accommodation. In such
circumstances even if the injunction as prayed will be granted no
inconvenience will be caused to the defendant, on the contrary
considering the age of plaintiff and considering his legal title as co
owner over suit premises if defendant will enter into suit premises for
claiming their rights in suit premises, inconvenience will be caused to
plaintiff. Considering this fact of inconvenience which may be caused
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to plaintiff and not to defendant I find that balance of convenience lies
in favour of plaintiff and not in favour of defendant. Lastly, admittedly
plaintiff is coowner of suit premises and he has shown name of his
daughter Sushama as coowner of suit premises. Thus, if defendant will
enter into suit premises without any authority definitely it will cause
irreparable injury to the valuable rights of plaintiff as the coowner of
the suit premises. Last but not the least, important aspect is that even
though name of mother of defendant no.1 is shown as coowner of suit
premises unless defendant prove that it is joint family property of
defendant no.1, I find that defendants cannot claim any right in suit
premises because as on today suit premises can be said to be self
acquired property of mother of defendant no.1 as coowner of suit
premises. For all above reasons as plaintiff has made out all three
essential ingredients I find that notice of motion is necessary to be made
absolute and temporary injunction is necessary to be granted as prayed
by plaintiff. Hence, I proceed to following order.
ORDER
Notice of Motion 2568 of 2018 is made absolute in terms of prayer
clause (a) of Notice of Motion.
(K.P.NANDEDKAR)
25/09/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 25/09/2019
Transcribed on : 25/09/2019
Signed on :
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