Order 3

Order Details: Notice of Motion
Pdf Text: N/m No. 896/21 in S.C.Suit No. 1762/18. 1 Order.
MHCC010028702021
Presented on : 22-03-2021
Registered on : 22-03-2021
Decided on : 03-08-2022
Duration : 1 years, 4 months, 12 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 896 OF 2021
IN
S. C. SUIT NO. 1762 OF 2018
Mr. Manharlal Maganlal Badiani )...Plaintiff
Versus
Mr. Rishabh Prashmesh Barar and one )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 3rd AUGUST, 2022.
Shri Rajeev Matkar, Advocate for defendant no.2.
Shri Vivek Kantawala a/w Shri Jash B. Vyas, Advocate for the plaintiff.
ORDER
1. This notice of motion is taken out by defendant no.2 for
recalling the order dated 25/09/2019 passed in Notice of Motion No.
2568/2018 in this Suit granting relief of temporary injunction to the
plaintiff and for rejecting the same. Perused notice of motion, affidavit
in reply filed by the plaintiff and rejoinder filed by defendant no.2.
Heard learned counsel Shri Rajeev Matkar for defendant no.2 and
learned counsel Shri Vivek Kantawala for the plaintiff.
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N/m No. 896/21 in S.C.Suit No. 1762/18. 2 Order.
2. On perusal of the record, it appears that the plaintiff had
taken out Notice of Motion No. 2568/2018 for temporary injunction
restraining the defendants and their representatives from entering upon
the suit premises. My learned predecessor had allowed the said notice
of motion in terms of prayer clause (a) on 25/09/2019.
3. Now, defendant no.2 has come up with the case that the
entire family of defendant no.1 resides at the suit premises alongwith
defendant no.1 as per narration made in page 6 to 9 in Criminal Writ
Petition No. 5569/2018 signed by her motherinlaw namely Sushama
Barar. It is further contention of defendant no.2 that the suit premises
is her matrimonial home and shared household. Pan Card, Aadhaar
Card, Passport as well as physical voting done by defendant no.1 are all
at the suit premises.
4. Parents of defendant no.1 filed S.C.Suit No. 1735/2018 in
City Civil Court, Dindoshi Branch for restraining defendant no.2 from
entering into their house at 7 Bunglows, Andheri. Mother of defendant
no.1 filed Criminal Writ Petition No. 5569/2019 for quashing F.I.R.No.
175/2018 filed at Cuffe Parade Police Station on complaint of
defendant no.2. Defendant no.1 filed Petition No. 1825/2018 in Family
Court at Bandra for dissolution of marriage between him and defendant
no.2. Defendant no.2 filed an application under Section 12 of the
Protection of Women From Domestic Violence Act, 2005 (for short, 'the
D.V.Act”) before Metropolitan Magistrate Court, Dadar, Mumbai.
Application for interim relief in D.V. proceeding is filed and she has
prayed for residence order in the suit premises and three other
properties of joint family of defendant no.1 and alternatively for rent of
Rs.1,00,000/ p.m. with 10% increase every year. Application for
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N/m No. 896/21 in S.C.Suit No. 1762/18. 3 Order.
interim relief is pending.
5. Defendant no.2 had taken up a job of airhostess, but due
to closure of 'Kingfisher Airlines' she does not have career prospects.
Defendant no.2 is working at a meager salary of Rs.25,000/ p.m. in a
company located at Bandra Kurla Complex. She had not received the
salary due to break out of Covid19 pandemic. She has reiterated her
case of her residence in the suit premises alongwith defendant no.1
after marriage. She further asserted that defendant no.1 and his
parents are residing in the suit premises. Defendant no.2 also relied
upon letter dated 17/05/2018 written by the plaintiff to Cuffe Parade
Police Station to state that defendant no.1 and his parents are residing
with the plaintiff.
6. It is case of defendant no.2 that defendant no.1 and his
father suffered from chronic Bipolar disorder and both parties had fully
disclosed their past to each other before marriage. The marriage has
taken place after heavy mental and practical adjustments. Parents of
defendant no.2 have room at 62C, Premkamal (Patkar House), Gokhale
Road (North), Dadar (West) and it is a small tenanted house.
Defendant no.2 has taken shelter in the house of her father. Due to
paucity of space, she shifted to his another Flat No.603 at College Street
nearby to the ground floor room. Defendant no.2 cannot afford to live
in a specious flat like the suit premises. Father of defendant no.2 is a
retired person who gets the EPF of Rs.1100/ p.m. He suffered two
heart attacks. Her mother suffers from various ailments and she has a
rod in her left leg and difficulty in movement. Defendant no.2 is only
child of her parents. By pointing out all these difficulties, she has
pressed for changing earlier order as referred in first para of this order.
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N/m No. 896/21 in S.C.Suit No. 1762/18. 4 Order.
7. On the contrary, the plaintiff has pleaded that he has
purchased the suit premises out of his own funds and he included name
of defendant no.1's mother who is his daughter. Daughter of the
plaintiff did not contribute for purchasing the suit premises. The
plaintiff has also given account of all legal proceedings pending
between defendants no.1 and his parents on one hand and defendant
no.2 on other hand. Description of four residential properties in prayer
clause (e) in D.V. proceeding is given in para 8 of affidavit in reply. It is
contention of the plaintiff that there are three properties belonging to
the joint family of Defendant no.1 and there is no necessity to allow
defendant no.2 to stay in the suit premises. Defendant no.2 has no
right qua the suit premises. By disputing claim of defendant no.2, the
plaintiff has supported the earlier order and prayed for dismissal of the
notice of motion.
8. Learned counsel Shri Rajeev Matkar for defendant no.2
pointed out all contents in affidavit in support, affidavit in reply and
affidavit in rejoinder. He also referred documents on record in the
course of his arguments. After reiterating case of defendant no.2 as
stated in affidavit in support, he relied upon observations of Hon'ble
Supreme Court in the case of Satish Chandra Ahuja V/s. Sneha Ahuja
2020 SCC OnLine SC 841. He submitted that Hon'ble Supreme Court
distinguished the citation of S.R.Batra and held in para 84 that,
“84. In view of the foregoing discussions, we answer
issue Nos. 1 and 2 in following manner:
(i) The definition of shared household
given in Section 2(s) cannot be read to
mean that shared household can only
be that household which is household
of the joint family of which husband is
a member or in which husband of the
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N/m No. 896/21 in S.C.Suit No. 1762/18. 5 Order.
aggrieved person has a share.
(ii) The judgment of this Court in S.R.
Batra Vs. Taruna Batra (supra) has not
correctly inter preted Section 2(s) of
Act, 2005 and the judgment does not
lay down a correct law.”
9. By relying upon these observations, he further submitted
that defendants no.1 and 2 had resided in the suit premises after their
marriage and it can be treated as shared household. He further pointed
out fragile financial condition of defendant no.2's parents and
difficulties faced by her in continuing her stay in parental house.
According to him, there is change in circumstances and the Court had
also not considered the fact that the suit premises is shared household.
He pointed out observations in para 13 of the earlier order and
submitted that these observations are contrary to law laid down in
Ahuja's case. He prayed to allow the notice of motion.
10. On the contrary, learned counsel Shri Vivek Kantawala for
the plaintiff submitted that there is no change in circumstance as per
proviso to Rule 4 of Order XXXIX of the CPC. Matter pertaining to the
shared household is pending in another Court. He has given account of
legal proceedings pending between the parties. He further submitted
that defendant no.2 did not contest application for interim reliefs in
D.V. Proceeding. He further relied upon Section 6 and Schedule to the
Hindu Succession Act, 1956 and submitted that no legacy can be given
to daughterinlaw of the daughter of the plaintiff. Defendant no.1 has
not made any claim in the property of the plaintiff. He also read out
Section 18 and 25 of the Hindu Adoption and Maintenance Act, 1956 to
state that the plaintiff is not having any responsibility to maintain
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N/m No. 896/21 in S.C.Suit No. 1762/18. 6 Order.
defendant no.2. He compared Section 25 of the Hindu Adoption and
Maintenance Act,1956 with Order XXXIX Rule 4 of the CPC to state that
change in circumstance is considered as the ground for altering or
modifying the earlier order. He further submitted that other
contingencies in Order XXXIX Rule 4 of the CPC are not applicable to
the case in hand and only factor of change in the circumstances can be
relevant consideration in the case in hand. According to him, the
plaintiff cannot be made to suffer due to change in financial condition
of defendant no.2's parents. He further read out Section 19, 20 and 26
of the D.V.Act and submitted that defendant no.2 has not pressed
application for interim reliefs in D.V. proceeding. He further pointed out
developments in the present proceeding and submitted that no case is
made out to interfere in the earlier order. He read out 63 in Ahuja's case
and submitted that some sort of permanency in stay is necessary to treat
the premises as shared household. According to him,defendants no.1
and 2 had stayed in the suit premises temporarily after marriage and
they had taken another premises on lease and therefore, the suit
premises is not shared household. He prayed for dismissal of the notice
of motion.
11. After considering rival submissions and material on record,
it appears that the plaintiff and mother of defendant no.1 (who is
daughter of the plaintiff) had purchased the suit premises. Reference of
stay of parents of defendant no.1 has come in the letter dated
17/05/2018 written by the plaintiff to Cuffe Parade Police Station.
Defendant no.2 is also relying upon various documents like Pan Card,
Aadhaar Card and Passport of defendant no.1 to assert that defendant
no.1 resides in the suit premises. Defendant no.2 is mainly relying upon
her residence in the suit premises with defendant no.1 after her
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N/m No. 896/21 in S.C.Suit No. 1762/18. 7 Order.
marriage for staking claim for stay in the suit premises as a shared
household. All these aspects were considered by my learned
predecessor while passing the earlier order.
12. The suit premises was not treated as matrimonial home of
defendant no.2 for want of evidence to prove the manner of payment of
consideration amount. Furthermore, availability of other joint family
properties belonging to the family of defendant no.1 were considered by
my learned predecessor. Joint ownership of defendant no.1's mother
was treated as her 'streedhan'. Accordingly, Notice of Motion No.
2568/2018 was allowed in terms of prayer clause (a).
13. In the light of observations of my learned predecessor in
the earlier order, it is necessary to scrutinize whether the case of
defendant no.2 is covered by Order XXXIX Rule 4 of the CPC. With this
regard, defendant no.2 has mainly relied upon the documents and other
material to show that she had resided in the suit premises with
defendant no.1 and it is her shared household. She has further pointed
out deteriorating financial condition of her parents making her stay in
the parental house almost impossible. It is pertinent to note that
Hon'ble Supreme Court in Ahuja's case made it clear that the definition
of 'shared household' given in Section 2(s) of the D.V.Act cannot be
read to mean that 'shared household' can only be that household which
is household of the joint family of which husband is a member or in
which husband of the aggrieved person has a share. It means that
meaning of shared household in Section 2(s) of the D.V.Act is enlarged
and it is not kept restricted to household of the joint family of the
husband or household in which the husband of the aggrieved person
has a share.
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N/m No. 896/21 in S.C.Suit No. 1762/18. 8 Order.
14. Admittedly, the suit premises is purchased by the plaintiff
and mother of defendant no.1 jointly and they are coowners of the suit
premises. As per Section 14 of the Hindu Succession Act, “any property
possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof
and not as a limited owner.” Therefore, the plaintiff and mother of
defendant no.1 are owners of the suit premises. It is necessary to show
that the property was purchased by the income of a coparcenary or joint
family property to treat it as joint family property. If Article 226 of the
Uncodified Hindu Law in "Mulla Hindu Law" Twentyfirst Edition is
considered, there is no scope to hold the suit premises as joint family
property of defendant no.1 and his parents for want of evidence
regarding payment of consideration by family members of defendant
no.1.
15. Furthermore, concept of Joint Hindu Family is restricted to
all persons lineally descended from a common ancestor, and it includes
their wives, sons and unmarried daughters as provided in Article 210 of
the Uncodified Hindu Law in "Mulla Hindu Law" Twentyfirst Edition. It
is further clarified in Article 210 that a daughter ceases to be a member
of her father's family on marriage, and becomes a member of her
husband's family. It means that the plaintiff is not a member of Joint
Hindu Family of defendant no.1 and his parents. In short, the plaintiff is
not having any responsibility to maintain defendant no.2. The concept
of the “respondent” as defined in Section 2(q) of the D.V.Act is
restricted to adult male person who is or has been in a domestic
relationship with the aggrieved person.
16. Furthermore, defendant no.2 has staked her claim over
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N/m No. 896/21 in S.C.Suit No. 1762/18. 9 Order.
three other properties between family of defendant no.1 and 3 under
the D.V. proceeding. Defendant no.2 is doing a job as pleaded by her.
She is residing in her parental house. Contents in affidavit in support
show that parents of defendant no.2 are having one rented room as well
as one flat and she shifted to the flat of her father due to paucity of
space. Considering all these attending circumstances, there is no
change in circumstance. Though the decision in Ahuja's case (cited
supra) has widened the scope of definition of shared household, it has
to be considered in the context of legal remedies available to defendant
no.2. When defendant no.2 has claimed her right to reside in three
other properties belonging to the family of defendant no.1 and she has
claimed rent of Rs.1,00,000/ p.m. alternatively in the D.V. proceeding,
the suit premises is sole option available in the hands of defendant no.2
for claiming right of residence as a shared household. Section 19 read
with Section 23 of the D.V.Act provides six types of directions in respect
of residence order to be passed in the matter. As defendant no.2 is not
in possession of the suit premises, Section 19(1)(a) of the D.V.Act is not
applicable to the case of defendant no.2. As the plaintiff is owner of the
suit premises and he is not member of Hindu Joint Family consisting of
defendant no.1 and his parents, question of granting reliefs as per
Section 19(1)(b), (c), (d) and (e) of the D.V.Act does not arise. The
plaintiff cannot be restrained from better enjoyment of his own
property. Defendant no.2 has made prayer as per Section 19(1)(f) of
the D.V.Act for alternate accommodation or rent in the D.V. proceeding
as referred above. Considering legal and factual aspects, there is
absolutely no change in circumstance for resorting to Order XXXIX Rule
4 of the CPC and to recall the order in Notice of Motion No.
2568/2018. Hence, I pass the following order :
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N/m No. 896/21 in S.C.Suit No. 1762/18. 10 Order.
ORDER
1. Notice of Motion No. 896/2021 is dismissed.
2. Proceeding of N/m No. 896/2021 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 03/08/2022. Mumbai.
1. Dictated on : 03/08/2022.
2. Transcribed on : 03 & 04/08/2022.
3. Signed on : 04/08/2022.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04/08/2022. 5.35 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 03/08/2022.
Judgment/Order signed by P.O. on 04/08/2022.
Judgment/Order uploaded on 04/08/2022.
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