Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2848/19(Suit 1938/19)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.2848/2019
(CNR No.MHCC01-007866-2019)
IN
S.C. SUIT NO. 1938/2019
1. Javed Tahir Shaikh,
2. Jamshed Tahir Shaikh
3. Reshma Tahir Shaikh
4. Shaikh Aslam Shaikh
5. Tabassum Anwer Shaikh ..Plaintiffs.
V/s.
Nazma Shiakh ..Defendant
Appearance:
Adv. Mr. Nouman Shaikh for plaintiffs.
Adv. Ms Zulekha Sayed for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 23.11.2019.
ORAL ORDER
1. Perused Notice of Motion (N/M) supported by an affidavit
of plaintiff no.1 Javed Tahir Hussain Shaikh. Defendant has opposed
the Motion by filing verified reply of the defendant supported by
documents filed on record as per list of documents.
2. I have heard Ld. Counsels for the plaintiffs and the
defendant at length.
3. It is submitted on behalf of the plaintiffs that, they have
approached this Court by filing a suit for declaration and injunction
against the defendant. The plaintiffs have also prayed for partition and
division of the suit premises and distribution of respective shares to the
parties to which they are entitled as per their Personal Law. During
pendency of the suit, the plaintiffs have prayed for appointment of court
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receiver to take possession of the suit premises under Order 40 Rule 1
of CPC for its protection and maintenance. It is submitted that, the suit
property has been described by the plaintiffs in para 2 of the plaint.
4. It is the case of the plaintiffs that, the suit property was
purchased by father Tahir Hussain Shaikh. As per letter dated
2.12.1987, address to BMC, late Tahir Hussain Shaikh had informed
about the change in the name of occupier of suit premises. The suit
property is a slum dwelling residence of ground plus two storied, along
with terrace. Uppermost storey is utilized and possessed by other two
brothers. The middle storey is possessed by the defendant and her
husband Feroz Khan and the ground level room is occupied by tenant of
the defendant. The defendant is getting rental income from the same. It
is submitted that, the property tax was paid by Tahir Hussain Shaikh, as
per Exh.B, filed with the plaint. Late Tahir Hussain Shaikh had died on
25.10.2013 and mother of the plaintiff Ayesha Tahir Shaikh
predeceased him on 27.8.2006. Death Certificates are filed on record
along with the plaint vide Exh.C. Late Tahir Hussain Shaikh left behind
legal heirs and successors, as described in para 6 of the plaint, and
plaintiffs no.1 and 2 are sons while plaintiffs no.3 to 5 are daughters
and the defendant is also another daughter of late Tahir Hussain
Shaikh.
5. On the above factual background, it is the case of the
plaintiffs that, the defendant has fraudulently made changes in the
ration card in respect of the suit property and added name of defendant
and her husband and children in it by removing names of other siblings
of the plaintiffs and the defendant, without taking their no objection or
affidavit. Copies of the ration card are filed with the Motion, along with
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Exhs.D1 and D2. The plaintiffs had issued legal notice to the defendant
through Counsel vide Exh.D, claiming their share in the suit property.
The defendant is denying rightful claim of the plaintiffs and harassing
them and threatening that the suit property is belonging to her and she
has obtained it from her husband at the time of their divorce. She has
transferred the suit property in her name claiming exclusive right in the
suit property. The defendant has also filed the Suit in this court
claiming her right over the suit property. It is pending in C.R. No.02.
6. Under the above circumstances, it is submitted that, it has
become necessary to restrain the defendant from alienating, transferring
or creating third party right in respect of the suit property during
pendency of the suit. Similarly, it is necessary to appoint a court
receiver under Order 40 Rule 1 of CPC with direction to court receiver
to take possession of the suit property for its protection and
maintenance during pendency of the suit.
7. The defendant has strongly opposed the Motion. Ld.
Counsel for the defendant has heavily relied upon the reply as well as
documents as per list filed on record, which include copy of plaint in
S.C. Suit No.2596/2018, along with list of documents; copy of N.C
submitted to Colaba police station, affidavit in N/M No.4529/2018 etc.
Ld. Counsel for the defendant submitted that, the plaintiffs' grievance in
the Motion and contentions made in the suit are imaginary and without
any support from the documents on record. It is nothing but an
afterthought. The plaintiffs' Motion suffers from suppression of material
facts from this court and therefore, the plaintiffs are not entitled for
equitable relief. The plaintiffs have failed to make out any prima facie
case on the basis of documents on record for grant of temporary
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injunction, as prayed, and order of appointment of court receiver during
pendency of the suit.
8. Ld. Counsel for the defendant vehemently argued that,
there is no cause of action in favour of the plaintiffs. The above suit is
filed by the plaintiffs with an ulterior motive and malafide intention
only to harass and pressurize the defendant, who is divorcee and has to
maintain her kids. Ld. Counsel further submitted that, factual aspect
regarding relationship between the parties is not disputed, however she
contended that the facts narrated by the plaintiffs in the Motion are not
correct and supported by the record. Legal notice issued by the plaintiff
on 2.7.2018 was not having any substance and it has been accordingly
replied by the defendant denying the contents thereof.
9. Regarding factual aspect of the matter, it was submitted
that, late Tahir Hussain Shaikh is father of the plaintiffs and the
defendant. Suit property i.e Room No.75, Sunder Nagari, Lala Nigam
Road, Colaba, Mumbai–400 005 is a matrimonial house of the
defendant and of her husband, who is cousin brother of deceased Tahir
Hussain Shaikh, late mother in law of defendant – Mrs. Wazira Hussain
Shiakh was permitted the guardianship of Mr. Ahmed Mohd. Hussain
Shaikh to Mr. Tahir Hussain Shaikh and Mr. Safdar Hussain Shaikh on
13.10.1978 by members of Jamatul Muslimin, Uttar Pradesh. It is
submitted that, at the age of 16, without her consent, her father had
performed her marriage with Ahmed Mohd. Hussain Shaikh to grab the
above property which was inherited by late Wazira Hussain Shaikh.
Thus, the marriage of the defendant with Mr. Ahmed Mohd. Hussain
Shaikh was forceably performed on 29.5.2001 against her will at
Village and Post Bahai, Dist. Raibareilly, U.P. From the said wedlock,
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the defendant gave birth to two kids viz. (1) Baby Alisha, age 13 years
and (2) Master Eram, age 10 years. The defendant was residing along
with her father, brother and sister at the above mentioned address as a
wife of Ahmed H. Shaikh, before her divorce. Now, Ahmed Mohd.
Hussain Shaikh is residing separately.
10. It is submitted that, late Tahir Hussain Shaikh died on
25.10.2013 without leaving any property by testamentary succession or
Will and the suit property was inherited by Ahmed Mohd.Shaikh from
Mrs. Wazira Hussain Shaikh and late Tahir Hussain Shaikh was his
guardian. On 11.10.2017, Ahmed Mohd Hussain Shaikh had divorced
the defendant by executing divorce deed and as a part of said
agreement, divorce by consent, the suit property was given to the
defendant for her maintenance and maintenance of her minor children.
Thus, the defendant had become owner and occupier of the suit
premises and she has been in lawful and settled possession of the same.
The defendant has also obtained no objection certificate on 17.1.2018
from all the legal heirs of late Tahir Hussain Shaikh. Thus, the
possession, use and occupation of the suit premises by the defendant
has been lawful and the plaintiffs have no right to claim temporary
injunction or order of appointment of court receiver during pendency of
present suit, hence the Motion is liable to be dismissed.
11. I have carefully gone through the N/M and supporting
affidavit as well as reply to the N/M and documents filed on behalf of
the defendant as per list including copy of plaint in S.C. Suit No.
2596/18 and other documents. I have also taken into consideration oral
submissions made by Ld. Counsels for both sides.
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12. It can be seen that, certain facts between the parties are
admitted. Relationship between the plaintiffs and the defendant is an
admitted fact. Similarly, the description of the suit property given in the
plaint and respective possession of part of premises by the parties, is
also admitted fact. Only dispute between the parties is in respect of
ownership right of the defendant and the claim made by the plaintiffs in
the suit being legal heirs and successors of late Tahir Hussain Shaikh. It
is the case of the defendant that, she has become owner and entitled to
the suit premises being divorced wife of Ahmed Mohd. Shaikh as a part
of consideration of an agreement for divorce and one of the conditions
of the divorce by mutual consent between her and her husband. The
suit premises have been given to her for maintenance of herself and her
children.
13. Thus, the defendant is claiming her right to the suit
premises through her late mother in law Wazira Hussain Shaikh and ex
husband Mr. Ahmed Mohd. Hussain Shaikh and her mother and the
plaintiffs are claiming the ownership rights over the suit premises being
legal heirs and successors of late Taihr Hussain Shaikh. Thus, on the
basis of prima facie documentary evidence on record, the defendant has
made out a case that, she has been in settled possession of the suit
premises and is claiming her right and title over the same, as per her
contention in S.C. Suit No.2596/18.
14. From the above facts and circumstances, I have come o he
conclusion that, the plaintiffs have failed to make out a prima facie case
for grant of temporary injunction as prayed or for order of appointment
of court receiver, during pendency of the suit. Present suit filed by the
plaintiffs appears to be a counterblast to the suit filed by the defendant
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bearing Suit No.2596/18. The plaintiffs are required to prove their
claim during trial of the case and no interim relief, as prayed in the
Motion, can be granted considering the balance of convenience of the
parties. If the Motion is allowed at this stage, it will cause serious
prejudice to the defendant because she is in settled possession of the
suit premises and her possession will be disturbed. She is a widow and
has to maintain her minor children. On the other hand, if the Motion is
not allowed, no prejudice will be caused to the plaintiffs because they
are not in possession of the suit premises and can wait adjudication of
the suit claim after trial on merit, hence no irreparable loss will be
caused to the plaintiffs. Therefore, I have come to the conclusion that,
the plaintiffs have not been able to make out a prima facie case for
grant of any relief as prayed in the Motion.
15. However, it may be observed that at this stage, since it is a
family dispute between the plaintiffs and the defendant, who are
brothers and sisters, before the case goes for trial, it is advisable that the
parties to take recourse of ADR mechanism u/s. 89A to D of CPC by
taking recourse of mediation/ conciliation or keeping the matter before
Lokadalat for settlement by consent of the parties. With these
observations, I proceed to pass following order :
ORDER
Notice of Motion No.2848/2019 is hereby dismissed and disposed
of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 23.11.2019 Gr. Bombay (C.R. 03)
Dictated on : 23.11.2019
Typed on : 23.11.2019
Draft given on: 23.11.2019
Signed by HHJ on :25.11.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 25.11.19
TIME: 3.30 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 23.11.19
Judgment/ order signed by P.O on 25.11.19
Judgment/ order uploaded on 25.11.19
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