Order 1

Order Details: Notice of Motion
Pdf Text: NM 2397-18 in S.C.Suit no.482-18
1 Date :18.01.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2397 OF 2018
IN
S.C. SUIT NO. 482 OF 2018
(CNR NO.MHCC010077262018 )
Ajay Dalmia & Anr. .. Plaintiffs
Versus
Pallavi Dalmia .. Defendant
Appearances :
Adv.Raj Patel for plaintiff.
Adv.Makrand Bokare for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 18.01.2020
ORDER
1. The defendant has filed instant Notice of Motion for rejection
of plaint under Order 7 Rule 11 of the Code of Civil Procedure,
1908 on the ground that no injunction can be granted against the
coowner.
2. It is contended by defendant that plaintiff filed present suit
seeking permanent injunction restraining defendant from entering
upon or remaining in the suit flat and / or from disturbing,
interfering or obstructing the plaintiff’s peaceful, exclusive use,
occupation and possession in respect of the suit flat viz. Flat
No.2101 on the 21st Floor, Sai Sapphire Building, Powai Vihar
Complex, near Gopal Sharma School, A.S. Marg, Powai,Mumbai
400 076. (hereinafter shall be referred to as suit flat).
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2 Date :18.01.2020
3. It is contended by the defendant that it is not disputed that
the plaintiff no. 2 and defendant are the joint owners of the suit
property. Hence, no injunction can be granted in favour of
plaintiff no. 2. The plaintiff no. 1 is the husband of plaintiff no. 2
who is trespasser and have no right to seek injunction against true
owner of the suit property. The defendant in support of her
contention relied of the following judgments :
1. Hon’ble High Court of Bombay at Nagpur in case of
Laxminarayan Parmeshwarlal Jaiswal V/s. Pravin,
reported in 2017 SCC Online Bom 7703.
2. Hon’ble High Court of Bombay at Nagpur in case of
Prakash Sukhdev Akotkar V/s. Mansoorkha Gulabkha
reported in 1962(2) Bom. C.R. 311.
4. Per contra the Notice of Motion is opposed by the plaintiff by
filing say. It is contended by the plaintiff that suit property was
initially given on Leave and License basis. The defendant harass
the Licensee. Therefore, the said Licensee vacated the suit
premises and handover the possession of the same to the plaintiffs.
It is further alleged by the plaintiff that defendant is trying to
dispossess them by adopting unlawful and illegal means.
Therefore, they have apprehension that they may be dispossessed
at the instant of defendant.
5. It is further contended by the plaintiff that they have prayed
for permanent injunction restraining the defendant from entering
into suit premises. At the same time they have also prayed for
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NM 2397-18 in S.C.Suit no.482-18
3 Date :18.01.2020
injunction against the defendant restraining her from obstructing
the plaintiff’s peaceful possession, exclusive use, occupation,
possession in respect of the suit flat. Therefore, the suit is
maintainable to the extent of declaration seeking injunction to the
extent of plaintiff no. 2’s possession. Hence, plaintiff conferred
that suit is maintainable and prayed for dismissal of Notice of
Motion.
6. Heard both the sides. Perused Notice of Motion and reply. It
is not in dispute that the suit property is purchased jointly by
plaintiff no. 2 and defendant. It is vehemently argued on behalf of
the defendant by relying on the aforesaid judgment that the
injunction against coowner can not be granted. Therefore, plaint
needs to be rejected under Order 7 Rule 11(d) of the Code of Civil
Procedure.
7. Ld. Advocate for the defendant further argued that plaintiffs
are not seeking protection of her possession to the extent of her
share rather she has claimed exclusive use, occupation and
possession in the suit flat. Hence, there is no specific prayer in
respect of protection of her share in the suit property. Thus, there
is no substance in the suit. Hence, plaint needs to be rejected.
8. Per contra Ld. Advocate for the plaintiff contended that they
may not be entitled for injunction restraining the defendant from
entering or remaining in the suit property but, they are entitled for
relief of securing protection to the extent of their share in the suit
property. Hence, they may succeed in the trial to that extent.
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4 Date :18.01.2020
9. It is further contended that for the first relief of injunction
restraining the defendant from entering or remaining in the suit
premises, although may not be available to the plaintiff but plaint
can not be rejected in part. The plaintiff no. 1 is the husband of
plaintiff no. 2. He could not be term as a trespasser and it is
triable issue. Hence, it can not be decided at preliminary stage.
10. I have perused the plaint. The plaintiff filed instant suit for
injunction on the ground that they have apprehension that they
may be dispossessed from the suit premises. On perusal of the
pleadings of the parties, it appears that it is not in dispute that the
plaintiff at present are in exclusive use, possession of the suit
premises. The defendant also pointed out that right of residence
granted in favour of the defendant in domestic violence
proceedings. There is no dispute that possession by coowner is
the possession on behalf of other coowners unless specific
arrangement is made for. Therefore, the suit simplicitor for
injunction against coowner is not maintainable. But, when there
is a apprehension to the coowner of her dispossession from the
part of her share, in my view, the coowner certainly, in order to
protect her possession would filed suit seeking protection of her
possession. Therefore, I find substance in the contention of the
plaintiff that they may succeeded in trial for seeking protection to
the extent of their share in the suit property.
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5 Date :18.01.2020
11. It is well settled law that application under Order 7 Rule 11
of Code of Civil Procedure, the Court has to confine its inquiry
only to the pleadings in the plaint. The Court cannot travel
beyond those pleadings and look into the defence taken by the
defendant. (Hardesh Ores Pvt. Ltd. V/s. Dede and Company,
reported in (2007) 5 SCC 614).
12. On perusal of the plaint, plaintiff pleaded their apprehension
of dispossession. Thus, plaint can not be barred under Rule Order
7 Rule 11(d) of C.P.C. Therefore, in my view, the plaint can not
be rejected under Order 7 Rule 11(d) of C.P.C. Hence, there is no
substance in the Notice of Motion and same needs to be rejected.
Thus, I proceed to pass the following order :
ORDER
1. Notice of Motion No. 2397 of 2018 is hereby rejected.
2. Parties to bear their own cost.
3. Notice of Motion No. 2397 of 2018 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 18.01.2020 Greater Bombay.
Dictated on : 18.01.2020
Typed on : 18.01.2020
Draft Submitted on : 18.01.2020
Checked on : 21.01.2020
Signed on : 21.01.2020
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NM 2397-18 in S.C.Suit no.482-18
6 Date :18.01.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24/01/2020 at 5.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
18/01/2020
JUDGMENT/ORDER signed by P.O.
on
21/01/2020
JUDGMENT/ORDER uploaded on 24/01/2020
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