Final Order 2

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.2695 OF 2019
IN
S.C. SUIT NO.2012 OF 2019
Mr.Harakchand Pasubhai Shah Nee
Chheda and anr ..Plaintiffs
Versus
1.Mr.Nirmay Harakchand Shah Nee
Chheda and anr ..Defendants
Ld. advocate Pankaj Bhat for the plaintiffs
Ld. advocate Arvind Rathi for defendant no.1
Ld. advocate Disha Vardhan for defendant no.2
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 17/02/2020
ORAL ORDER
1. This notice of motion is tendered by plaintiffs for
restraining the defendants from entering, occupying
and staying over into the flat bearing No.1501, Shri
Jayant Darshan CHS Limited, 11, Sankar Sheth Road,
Tardeo, Mumbai(Hereinafter referred to as ‘suit
premises)
2. Heard.
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3. Ld. Counsel for the plaintiffs submitted that plaintiffs
are owners of the suit premises. Defendant no.1 is
son and defendant no.2 is daughter-in-law of the
plaintiffs. The allegations are that defendant no.2
was abusing defendant no.1 in front of plaintiffs and
friends of defendant no.1. Defendant no.2 used to
humiliate and insult plaintiff no.2 and plaintiff’s
daughters. The parents of defendant no.2 were
informed about her behaviour. The defendants
acquired rental accommodation on leave and license
basis on their own in August 2018 in Leena Heritage
building, Khursetji Rana Street, Grant Road, Railway
Station-East, Grant Road, Mumbai. The defendants
are residing there. In the joint meeting, the father of
defendant no.2 informed plaintiffs that defendant
no.2 had some mental problem prior to marriage and
was under the treatment of Dr.Agarwal. On
26/06/2019, defendant no.2 came to the suit
premises and locked herself in one bedroom and told
that this is her home and she would not move out of
the house. The plaintiffs informed the police and
with the help of police broke open the door of the
bedroom and since then defendant no.2 is staying in
the suit premises. The plaintiffs state that constant
behaviour of defendant no.2 creates unsolicited
tension in the household and the plaintiffs and their
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unmarried daughter are unable to bear the same.
Hence, the plaintiffs have filed this suit with
accompanying notice of motion.
4. Defendant no.2 combated the suit by filing written
statement. It is the contention of defendant no.2 that
divorce petition is filed against defendant no.1 on the
ground of cruelty. It is the contention of defendant
no.2 that she was dispossessed by the plaintiffs. The
plaintiffs are making false allegations against
defendant no.1. After January-2019 till May-2019,
many times defendant no.1 used to stay at his
parents house. During this period the mediator
under the pretext of resolving the dispute used to call
the plaintiffs and defendant no.1 to help them to
evict defendant no.2 from even rental house and
creating evidence for filing false divorce proceedings.
The said mediator instructed defendant no.2 to stay
at her parents house till end of April 2019. Defendant
no.2 was not aware about their ill motive. In the
second week of June 2019, the mediator had called
defendant no.2 at his office and started abusing
defendant no.2 in front of her father and compelled
defendant no.2 to apologize for the mistakes which
she has not done. However, to save the marriage and
to resolve the dispute, she did everything what was
told by the said mediator. The said mediator insisted
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defendant no.2 and her father to file the divorce
proceedings. Defendant no.2 had no option but to
return back to her matrimonial home on 26th June,
2019 at evening. The plaintiffs then forced her to
leave the matrimonial home but defendant no.2
begged them and reqested them to allow her to stay
in her matrimonial home and she locked herself in
her bedroom for her safety. Defendant no.2 then
attended this Court on 02/08/2019 and after the
court proceedings at about 6.00 clock when she
returned back to her matrimonial house, the
plaintiffs refused to open the door and they have
thrown defendant no.2 out of the suit premises
during the pendency of the above suit.
5. On the rival contentions of the parties, following
points arise for my determination and findings to it
are recorded for the reasons stated hereinafter:-
POINTS
1. Whether the plaintiffs have made out a prima
facie case in their favour?
2. Whether the needle of balance of convenience
tilt in favour of plaintiffs?
3. To whom irreparable loss would be caused?
4. What order?
FINDINGS
1. In the negative
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2. In the negative
3. To defendant no.2
4. As per final order
REASONS
Point nos.1 to 3
6. It would not be proper to refer and reproduce the
allegations in respect of the matrimonial dispute
between defendant no.2 and plaintiffs and defendant
no.1. At this juncture, the plaintiffs are claiming that
defendants should not disturb their physical
possession and injunct her from entering, occupying
and staying in the suit premises. The plaintiffs have
filed the document i.e. agreement to show their
ownership over the suit premises. It is also not the
subject matter of the dispute at this juncture.
7. On perusal of plaint para.15, it is specifically
contended that defendant no.2 entered the house
and locked herself in the bedroom. The police was
called by the plaintiffs. At the request of police,
defendant no.2 refused to come out of the room,
therefore with the help of duplicate keys the room
was opened. Since then the defendant no.2 has been
staying in the suit premises. The suit is admittedly
filed on 03/07/2019. On the date of filing of the
suit, defendant no.2 was staying in suit premises. Ld.
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Counsel for the plaintiffs argued that defendant no.2
is daughter-in-law and she cannot claim her right to
occupy the suit premises. In support of his
contentions, he placed reliance upon the judgment of
Hon’ble Bombay High Court in the case of Conrad
Dias V/s Joseph Dias of 1996(2) Mh.L.J. 208,
wherein Hon’ble Bombay High Court held that,’
Here
we are concerned with a father and a son who are
members of one family. A son gets into the family by
birth and resides with the parents. Can it be said
that when a child is born and lives with the parents,
he is a licensee within the meaning of section 52 of
the Act? Certainly not. A child and later a son or a
daughter resides in the house with the parents not as
a licensee or in any legal capacity but only as
members of the family. Nobody can claim a license
by birth.”
8. There is no quarrel about above propositions of law.
Herein also defendant no.2 cannot claim as a
licensee. Ld. Counsel for the plaintiffs further placed
reliance upon the judgment of Hon’ble Apex Court in
the case of S.R.Batra and another V/s Smt. Taruna
Batra, 2007 AIR SCW 1088, wherein Hon’ble Apex
Court held that,’
As regards section 17(1) of the Act,
in our opinion the wife is only entitled to claim a
right to residence in a shared household, and a
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shared household’would only mean the house
belonging to or taken on rent by the husband, or the
house which belongs to the joint family of which the
husband is a member. The property in question in the
present case neither belongs to Amit Batra nor was it
taken on rent by him nor is it a joint family property
of which the husband Amit Batra is a member. It is
the exclusive property of appellant no.2, mother of
Amit Batra. Hence, it cannot be called a ‘shared
household.’
9. There is no quarrel about the above proposition of
law. No doubt at this stage when the plaintiffs have
filed the document of their title, it is apparent that
the suit premises is not a shared house hold. By
virtue of petition under Domestic Violence Act,
defendant no.2 has not claimed right of possession in
shared house hold and therefore, with greatest of
respect the above judgment will not be applicable in
present dispute.
10. Ld. Counsel for defendant No.2 argued that
defendant no.2 has right to stay in the suit premises.
In support of her contention, she placed reliance
upon the judgment of Hon’ble Delhi High Court in
the case of Smt. Preeti Satija V/s Smt. Raj Kumari
and anr in CM appeal 4236/2012, 4237/2012 and
5451/2013 decided on 15/01/2014. It is held by the
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Hon’ble Delhi High Court that
“The other aspect,
which this Court wishes to highlight, is that the 2005
Act applies to all communities, and was enacted’ to
provide more effective protection of the rights of
women guaranteed under the Constitution who are
victims of violence of any kind occurring
RFA(OS)24/2012 page 21 within the family.’ The
right to residence and creation of mechanism to
enforce is a ground breaking measure, which Courts
should be alive to. Restricting the scope of the
remedies, including in respect of the right to reside
in shared household, would undermine the purpose
of this enactment. It is, therefore, contrary to the
scheme and the objects of the Act, as also the
unambiguous text of Section 2(s), to restrict the
application of the 2005 Act to only such cases where
the husband alone owns some property or has a
share in it. Crucially, the mother-in-law(or a father-
in-law, or for that matter, ‘a relative of the husband’)
can also be a Respondent in the proceedings under
the 2005 Act and remedies available under the same
Act would necessarily need to be enforced against
them’.
11. The defendant No.2 is not raising any defence
for protection of her possession under the Protection
of Women from Domestic Violence Act, 2005 and
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therefore, the above judgment is not applicable in the
facts and circumstances of the present case.
12. At this juncture, one thing is clear that on the
date of filing of the suit, defendant no.2 was in
possession. The suit was filed on 03/07/2019. On
the date of filing of the suit, she was staying in the
suit premises and therefore injunction for restraining
defendant no.2 from occupying or entering in the suit
premises cannot be granted when she was staying in
the suit premises. No doubt the defendant no.2 in her
written statement, claimed that on 02/08/2019 she
was not allowed to enter the suit premises but that is
based upon the cause of action prior to it.
13. Thus the plaintiffs have not made out prima facie
case in their favour as on the day of filing of suit,
defendant no.2 was staying in the suit premises. The
needle of balance of convenience does not tilt in their
favour as plaintiffs have claimed the relief which
cannot be granted. No irreparable loss would be
caused to them if the injunction is not granted.
Hence, I answer point nos.1 to 3 in the negative.
Point no.4
14. In view of the above discussions and findings
to point nos.1 to 3, this notice of motion needs no
consideration. Hence, it is expedient to pass
following order:-
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ORDER
1. N/M no.2695/2019 stands rejected.
2. Costs in the cause.
3. N/M no.2695/2019 is disposed of accordingly.
17/02/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 17/02/2020
Transcribed on : 03/03/2020
Signed on : 07/09/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
07/09/20 at 11.45 am.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
17/02/2020
Judgment and order signed by P.O. 07/09/2020
Judgment/order uploaded on 07/09/2020
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