Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010070222019 Received on : 08/07/2019
Registered on : 25/07/2019
Decided on : 07/09/2026
Duration : 07 Y, 01 M, 30 D
Exh.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO.2128 OF 2019
Rakesh Brijmohan Khanna
Aged 55 years, Occ : Business,
Residing at : Flat No.9, Abhilasha
Building, Near LIC Colony,
Dr. R.P. Road, Mulund (W),
Mumbai 400 080. … Plaintiff
V/s
1. Smt. Renu Rakesh Khanna
Aged : 56 years, Occ : Housewife,
2. Rajiv Rakesh Khanna
Aged : 32 years, Occ : Business,
3. Rajeshwar Rakesh Khanna
Aged : 30 years, Occ : Business,
All residing at : B-1003, A 1 Lotus,
10th floor, Whispering Meadows,
Near Model Town, Bal Rajeshwar Road,
Mulund (W), Mumbai 400 080. … Defendant
Appearances :
Advocate Hemant Hasnale for plaintiff is present.
Advocate Tithi Tatari for defendant no.1 is present
CORAM : D. R. DESHPANDE
JUDGE,
(C.R.NO.02)
DATE : 7th September, 2026
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Judgment (2) S.C. Suit No. 2128/2019
JUDGMENT
1. This is the suit for declaration that each of the scheduled
suit properties, which are purchased jointly in the names of plaintiff and
defendant No.1, the spouses, is the property exclusively belonging to
plaintiff and for perceptual injunction restraining defendant No.1 and
her sons defendants No.2 and 3 from interfering into plaintiff’s
exclusive enjoyment of the suit properties as the full owner.
2. Case of plaintiff: Defendant No.1 was previously wife of
plaintiff’s elder brother, after whose demise, plaintiff looked after her as
well as the sons of elder brother i.e. defendants No.2 and 3. Lateron, he
married defendant No.1 and in order to avoid inconvenience caused to
defendants No.2 and 3, Adoption Deed was executed showing the
adoption of defendants No.2 and 3 by plaintiff and defendant No.1. The
properties under the declaratory reliefs are the properties purchases by
plaintiff from amongst his exclusive funds, and thus, are the exclusive
properties of plaintiff. However, each of the same was purchased in the
joint name of plaintiff and defendant No.1 merely for the sake of
convenience. Plaintiff, therefore, is 100% owner of the scheduled
property. Defendant, without having any right, title or interest in the
scheduled property and defendants No.2 and 3, either by positing
themselves as adopted sons or posting as persons claiming through
defendant No.1, are obstructing plaintiff’s right to exclusive ownership
and enjoyment of the suit property. Hence the suit for declarations and
injunction.
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Judgment (3) S.C. Suit No. 2128/2019
3. Notice of Motion St. No.2262 of 2026 : Defendant No.1,
the wife, has raised objection to the jurisdiction of Civil Court for the
bar provided under Section 8 of the Hindu Family Court Act, 1982.
According to defendants, decree for declaration and injunction having
been prayed for regarding the joint property of spouses i.e. parties to
the marriage, the suit should lie before the Family Court as provided by
Section 7(1)(d) of the Family Courts Act.
4. Points for determination: In view of the preliminary
objection, the following are the points for determination alongwith my
findings thereon for the reasons ensuing:
Sr. No. Points Findings
1. Whether civil court has
jurisdiction to entertain the suit ?
No
2. What order ? Plaint is rejected by Order VII,
Rule 11 (d) of the Code of
Civil Procedure, 1908.
: REASONS :
5. At the out set, it has to be stated that the declaration
pertaining to each of the properties prayed for by way of decree for
declaration is pertaining to the property purchased in the joint name of
plaintiff and defendant No.1, who are parties to the marriage as it
appears from the averments in plaint. Relief of injunction is claimed on
the basis of declaration of the property being exclusive property of
plaintiff i.e. husband, irrespective of an independent of any right of
defendant No.1 in any of the suit properties. Section 8 of the Family
Courts Act excludes the jurisdiction of the Civil Court pertaining to the
dispute amongst the “parties to the marriage” and it even covers the
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Judgment (4) S.C. Suit No. 2128/2019
extended family as parties to dispute as set out under Section 7(1)(d) of
the Family Courts Act, the exclusive jurisdiction of which, is conferred
upon the Family Court in the District. Section 7(1)(c) of the Family
Court Act enlists the dispute amongst the parties to the marriage
pertaining to the property and declaration with respect to the property
of the parties or either of them. Section 7(1)(d) applies to the suit or
proceedings for the order or injunction in the “circumstances arising out
of matrimonial injunction”.
6. The learned advocate for plaintiff has submitted that, at the
most, order for return of plaint instead of rejection of plaint, needs to be
passed, however, the power under Order VII, Rule 10 of the Code of
Civil Procedure, 1908 for return of plaint contemplates assumption of
jurisdiction as to subject matter by the Civil Court as pre-condition with
the conjunctive condition that the concerned Civil Court, where plaint is
wrongly presented, does not have and some other Civil Court has
jurisdiction. Order VII, Rule 10 does not contemplate those cases where
the jurisdiction of the Civil Court as to subject matter is expressly
barred, which are covered by Order VII, Rule 11(d) of the Code of Civil
Procedure, 1908.
7. Thus, the suit for declarations and injunction are
concerning the property are squarely covered by Section 1(c) of the
Family Court Act in so far as defendant No.1 is concerned and Section
7(1)(d) covers the dispute even against defendants No.2 and 3 as sons
of defendant No.1. Even otherwise, defendants No.2 and 3 being the
persons claiming through defendant No.1, the entire genesis and cause
of action of the suit being the dispute concerning the property belonged
to by the spouses so as to be entertained by the Family Court at Bandra,
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Judgment (5) S.C. Suit No. 2128/2019
Section 8 expressly bars the jurisdiction of civil court so that the Rule
11(d) of Order VII of the Code of Civil Procedure, 1908 is applicable.
The rejection of the plaint, obviously, does not debar the filing of suit in
competent court. The Notice of Motion, therefore, succeeds Accordingly
finding to point No.1 is recorded.
8. Point No.2 : In view of the finding to point No.1, plaint is
liable to be rejected
vide Order VII, Rule 11(d) of the Code of Civil
Procedure, 1908. Considering the relationship amongst the parties,
there has to be an exception to the general rule of costs. “Costs shall
follow the event”. In the result, I pass the following order :
O R D E R
1. Plaint is rejected
vide Order VII, Rule 11 (d) of the Code of
Civil Procedure, 1908.
2. Parties to bear their own costs.
3. Notice of Motion St. No.2262 of 2026 stands allowed in the
aforesaid terms, which shall be registered for statistical purposes.
4. Notice of Motion No.2960 of 19 and Notice of Motion 70 of 23 in
Suit No.2128 of 2019 stand disposed of alongwith disposal of the
suit.
(Judgment dictated and pronounced in Open Court.)
(D.R. Deshpande)
Judge,
City Civil Court,
Date: 07.09.2026 Gr. Bombay.
Dictated on : 07.09.2026
Transcribed on : 07.09.2026
Checked & Signed on : 08.09.2026
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Judgment (6) S.C. Suit No. 2128/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
08.09.2026 At 3.35 P.M. J.S.CHAVAN
UPLOAD DATE AND TIME NAME OF THE STENOGRAPHER
Name of the Judge (With Court
Room Number)
HHJ D.R. DESHPANDE
JUDGE, CITY CIVIL COURT
(C.R.NO.02)
Date of pronouncement of
Judgment/ Order
07.09.2026
Judgment/Order signed by P.O.
on
08.09.2026
Judgment/Order uploaded on 08.09.2026
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