Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.2999 OF 2019
IN
S.C.SUIT NO.2050 OF 2019
Mr.Gurdip S/o.Dharam Singh Chass ... Plaintiff
Versus
1. Smt.Surinder Kaur w/o.Gurdip Singh,
2. Mr.Tejinder Singh,
3. Mrs.Simie w/o. Tejinder Singh,
4. Mysore CoOp. Housing society Ltd.
Mysore Colony, Chembur,Bombay74. ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 9th NOVEMBER, 2020
Mr.A.M.Saraogi, ld. adv. for plaintiff.
Mr.Yogendra Kanchan, ld adv. for defendants.
O R D E R
1. This notice of motion is filed by plaintiff for temporary
injunction for restraining defendant nos.1 to 3 from remaining upon
and/or entering upon in any manner upon the premises being
bungalow No.74, “Gurprasad”, situated at Mysor Colony, Chembur,
Bombay 400 074 (hereinater this bungalow will be referred as “suit
premises) subject to plaintiff providing a one BHK flat within the same
vicinity in the name of defendant no.1. Plaintiff has also prayed for
temporary injunction for restraining defendants, their agents/servants
or any persons claiming through them from disturbing plaintiff's
possession in respect of suit premises. Further he has prayed for
temporary injunction for restraining defendants from causing any
obstruction into plaintiff's married daughter, other relatives and friends
from attending suit premises to meet the plaintiff.
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2. Plaintiff has filed his affidavit in support of notice of motion
contending that he is intending to rely upon the contentions raised in
the plaint. As mentioned in the plaint, plaintiff and defendant no.1 are
husband and wife. Defendant no.2 is son of plaintiff and defendant no.3
is daughter in law of plaintiff. Further plaintiff and defendants are
residing in suit premises, however for one reason or other defendants
are not in good terms with plaintiff and the plaintiff is being avoided by
defendants in all respect at plaintiff's age of 74 years. It is contended
that being wife of plaintiff, defendant no.1 is required to protect him,
however facts are other way rounds. It is contended that plaintiff is
lawful owner of suit premises. All the bungalow owners from Mysore
CHSL i.e. defendant no.4 have formed said society and defendant no.4
had accepted plaintiff as the member of said society in plaintiff's
capacity as owner of suit premises. It is contended that defendant nos.1
to 3 had nothing to do with suit premises in any manner whatsoever,
however out of love and affection plaintiff requested defendant no.4 to
note down name of defendant no.1 as comember in respect of the
society record and said request was made by plaintiff by his letter dated
20/12/1991. Copy of said letter is annexed to the plaint at Exh.A. It is
contended that at that time plaintiff was made to sign necessary form
issued by defendant no.4 being the form dated 22/12/1991 which
clearly mentions that same is pertaining to open plot only. Copy of said
form is annexed at Exh.B to the plaint. According to plaintiff, above
documents itself will show that though plaintiff had been exclusive
owner in respect of plot of land as well as structure standing thereon
and it is the plaintiff who has constructed the bungalow on said plot.
Defendants have been residing in the same purely in their capacity as
family members of the plaintiff and defendants had no ownership rights
in respect of the plot and bungalow.
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3. It is contended that it is the matter of record that
somewhere in the year, 2009 or so, defendant nos.2 and 3 have created
all kinds of problems and difficulties for plaintiff. In view of said facts
plaintiff filed Suit No.1819 of 2009 before City Civil Court, Mumbai. In
said suit consent terms came to be filed, the copy of plaint of Suit
NO.1819/2009 is annexed to the plaint as Exh.C. Copy of roznama of
said suit is annexed to plaint as Ex.D and copy of decree passed by the
Court in said suit along with the copy of consent terms is filed with the
plaint as Exh.E. Above referred plaint and consent decree will show
that defendant nos.2 and 3 have categorically admitted that they have
no rights of whatsoever nature in respect of suit premises. Despite said
facts, since defendant nos.2 and 3 have failed to vacate suit premises,
plaintiff filed execution proceedings before City Civil Court, Mumbai.
Copy of said execution petition is annexed to the plaint as Exh.F. In
order to oppose said application, defendant nos.2 and 3 have filed
affidavit in reply. Copy of said affidavit is annexed to the plaint as
Exh.G. By virtue of said affidavit in reply defendants have sought to
contend that execution application and prayers made in execution
application are beyond the scope of decree passed by the Court.
Irrespective of said facts, the fact remains that defendant nos.2 and 3
have no rights of whatsoever nature in respect of suit premises.
4. It is contended that name of defendant no.1 has been inserted in
the share certificate of suit premises only on the request made by the
plaintiff. However, by virtue of the same, no rights of whatsoever nature
are created by plaintiff in respect of suit premises in favour of defendant
no.1. Merely because the defendant no.1 is shown as coowner in
respect of suit premises, no rights of whatsoever nature have been
created in favour of defendant no.1 by simply making an application
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with society as the immovable property cannot be transferred unless
proper documents are prepared, signed and registered with appropriate
authorities after payment of necessary fees, if any. In view thereof,
even if defendant no.1 has been accepted as a comember by the Society
defendant no.4, same do not create any rights in favour of defendant
no.1 in respect of suit premises.
5. It is contended that it is found that defendant no.1 is acting
contrary to the request made by plaintiff and therefore, plaintiff had
requested Dy.Registrar to delete name of defendant no.1 from share
certificate of suit premises. Said request was made by plaintiff by his
letter dated 21/05/2019. Copy of said letter is annexed to the plaint as
Exh.H. Meanwhile plaintiff was highly indebted and he was required to
pay huge amount to the person which still remains to be paid. In view
of said fact, plaintiff has decided to sale the said bungalow from the suit
premises in favour of third party and said decision was taken on the
basis of agreement signed between plaintiff, defendant no.1 and said
third party namely Amish Tripathi. Said agreement was signed along
with receipt dated 13/12/2013. It is alleged that when plaintiff decided
to sale suit premises, defendant no.2 instigated defendant no.1 to act
contrary to plaintiff. It is contended that in fact it was agreement
between plaintiff and defendant nos.1 to 3 that out of sale proceeds of
suit premises plaintiff shall purchase a 2BHK flat in the name of
defendant no.1 so that she will be well secured. However, for the
reasons best known to defendant nos.1 to 3, they started instigating
said third party and defendant nos.1 to 3 made an attempt to cancel the
agreement made by plaintiff with said third party. Said deal was made
by plaintiff with the consent of defendant no.1 and agreement was
signed by defendant no1. Copy of receipt dated 13/12/2013 is annexed
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to the plaint as Exh.I. It is contended that the bungalow and the suit
premises was mortgaged prior to said deal and plaintiff by creating
personal liabilities have cleared all the dues payable to the bank
authorities and this fact is apparent from the documents issued to the
plaintiff. Copy of agreement dated 10/04/2018 is annexed to the plaint
as Exh.I.
6. It is contended that plaintiff was also made to face
litigation at the hands of Mr.Amish Tripathi by way of Suit filed before
Hon'ble High Court, Bombay and plaintiff was required to settle the
matter with Mr.Amish Tripathi by raising necessary finance from the
market. It is contended that defendant nos.1 to 3 have no rights in
respect of suit premises. Even if, the name of defendant no.1 has been
incorporated in the share certificate, her name is only pertaining to
open plot and in any case same has nothing to do with the super
structure standing on the plot. It is contended that Society by allowing
defendant no.1 to become comember of the Society has not created
rights in favour of defendant no.1 in respect of suit premises.
7. It is alleged that plaintiff is being made to face situation
whereby on various occasions whenever plaintiff moves out for his
business and other purposes, defendant nos.1 to 3 locked suit premises
from inside and thereafter plaintiff is required to remain out of premises
for days together. Even if the plaintiff is residing in suit premises he is
not allowed to meet with any of his relatives, friends including his
married daughter. It is contended that defendant nos.1 to 3 have no
rights to prevent plaintiff from meeting from any such persons, his
friends, family members etc. It is alleged that whole anxiety of
defendant nos.1 to 3 is to see that plaintiff is being forced to remain
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confined in suit premises without there being any assistance or any
support of any of the family members or friends and thereby plaintiff is
being made to suffer.
8. It is contended that defendant no.1 does not have any
rights in suit premises as she has never been party to the purchase of
suit premises and further defendant nos.2 and 3 have already agreed
and admitted before the Court that they do not have any right in respect
of suit premises. Hence, according to plaintiff, defendant nos.2 and 3
have no right to remain upon suit premises contrary to the wishes of
plaintiff specially when plaintiff is highly indebted and when he is
discharging his liabilities. It is contended that plaintiff is very much
concerned with defendant no.1 and he is not intending that defendant
no.1 should be on road therefore, plaintiff is ready and willing to
purchase a flat in the name of defendant no.1 out of the sale proceeds
of suit premises. It is contended that though plaintiff had requested,
defendant no.4 from time to time for deleting name of defendant no.1
from share certificate of suit premises and though some directions are
already issued by concerned Registrar of Cooperative Societies,
defendant no.4 instead of acting upon the same is trying to support the
defendant nos.1 to 3 without any justified reason. It is alleged that
office bearers of defendant no.4 are trying to blame plaintiff without
their being any fault on the part of plaintiff.
9. It is alleged that as a counterblast defendant no.1 has filed
proceedings under Domestic Violence Act against plaintiff. It is
contended that at this age of life plaintiff is being harassed by
defendants and plaintiff is left with no other option but to approach this
Court by filing this suit. It is contended that defendant no.4 is
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instrumental in instigating defendant nos.1 to 3 against plaintiff which
is not the business of the Society and hence plaintiff’s claim does not fall
U/s.91 of Maharashtra Cooperative Societies Act and as such section
164 of said Act does not come in the way of plaintiff to file this suit.
Hence, plaintiff by filing this suit has prayed for perpetual injunction
and temporary injunction as claimed in the notice of motion.
10. Defendant nos.1 to 3 have filed their written statement at Exh.3
and pursis Exh.3A to consider said written statement as their reply to
the notice of motion. According to defendant nos.1 to 3, plaintiff’s
claim is false and the facts mentioned in the plaint are absolutely false
and misleading. Relation between plaintiff and defendant nos.1 to 3 is
admitted and it is contended that plaintiff and defendant nos.1 to 3 are
residing at their addresses shown in the plaint. According to defendant
nos.1 to 3, plaintiff’s claim is barred by the principle of resjudicata as
plaintiff had already instituted a Suit No.1819/2019 seeking similar
relief of eviction of defendant nos.2 and 3. In said suit consent terms
were filed where defendant nos.2 and 3 agreed and undertook before
the Court that they will not claim any rights in respect of suit premises.
It is contended that plaintiff had initiated execution proceedings in said
suit. Said execution application was bearing Execution Application
No.123/2019 and the prayers made in said application were beyond
the scope of decree. As plaintiff had prayed for eviction of defendant
nos.2 and 3 from suit premises. Defendants have opposed said
execution proceedings by filing their reply dated 01/07/2019 and after
going through said reply plaintiff realized that he is not in a position to
achieve what he desired by virtue of execution of the decree dated
20/01/2010 therefore, plaintiff has filed this suit seeking eviction of
defendants without there being any cause of action against the
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defendants. Hence, according to defendant nos.1 to 3 plaintiff’s claim is
not maintainable.
11. It is alleged that plaintiff has tried forcibly to throw defendant
no.1 out of suit premises and he has physically assaulted defendant no.1
on 24/07/2019 due to which she was constrained to file a police
complaint. Copy of said NC report dated 24/07/2019 is annexed to the
affidavit of reply as Exh.A. It is alleged that it is the plaintiff who has
spoiled relation with defendant no.1 and who has tried to throw
defendant no.1 out of his life on one pretext or other. It is contended
that plaintiff had filed a mischievous petition against defendant no.1
seeking divorce. Said petition is filed before Family Court, Bandra
Mumbai. It is contended that defendant no.1 in order to protect her
possession over suit premises had initiated proceedings U/s.23(2) of
Domestic Violence Act, 2005 and by virtue of order dated 20/07/2018,
possession of defendant no.1 has been protected by learned
Metropolitan Magistrate 57th Court at Kurla, Mumbai. Copy of said
order is filed by plaintiff. It is contended that defendant no.2 is the son
of plaintiff and it is patently false that defendant no.2 has excluded
plaintiff. It is contended that defendant no.2 has relentlessly being
helping plaintiff despite the misdemeanors and defendant no.2 has
been always taking care of all the needs and requirements of plaintiff.
It is contended that plaintiff has taken various loans for the purpose of
business and it is the defendant no.2 who is being repaying all the loans
of plaintiff and it is the defendant no.2 who is protecting suit premises
where the plaintiff and defendants are staying. Even though defendant
no.2 is trying to protect suit premises from being sold to third party to
whom plaintiff is trying to deal with for malafide motive. It is
contended that defendants have done everything possible for the benefit
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and welfare of the plaintiff. However, plaintiff has never knowledge the
same. It is alleged that plaintiff has made false allegations against
defendant no.1 and plaintiff is planning to throw defendant no.1 out of
suit premises, due to which defendant no.1 was compelled to initiate
proceedings under Domestic Violence Act so that her possession over
suit premises would be protected. It is contended that defendant no.1 is
coowner of suit premises, however plaintiff has been denying the
rightful share of defendant no.1 over suit premises. Defendant no.1 has
been accepted by defendant no.4 as coowner of suit premises, by virtue
of deed of confirmation dated 16/02/2005, where plaintiff has accepted
the rights of defendant no.1 in suit premises. Plaintiff is possessing said
deed of confirmation dated 16/02/2005. It is contended that plaintiff
himself has inserted name of defendant no.1 in the record of suit
premises which is with the Society and thereby plaintiff acknowledged
the rights of defendant no.1 over suit premises. It is alleged that
plaintiff does all the acts which suit his convenience when he is in need
of loan or any credit facility and after his requirement ends, he does not
acknowledge the need of defendant nos.1 to 3. It is contended that
defendant nos.1 to 3 being family members of plaintiff have every right
to occupy suit premises. Defendant no.2 has been with plaintiff in his
business activities and has supported plaintiff all throughout in all his
construction projects, being qualified Civil Engineer, however plaintiff
till date has not paid a single penny towards relentless services of
defendant no.2.
12. It is contended that in para2 of the plaint, plaintiff has given a
categorical admission that in the year, 2009 plaintiff had filed a suit
against defendant nos.2 and 3 for identical reliefs and the prayers made
in present suit are similar to what was sought in earlier suit. Hence,
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according to defendants, plaintiff’s claim is barred by principle of res
judicata. In said suit as the parties have filed consent terms and
defendant nos.2 and 3 had only agreed not to claim any share in the
property of the plaintiff as agreed in those consent terms but they had
never agreed to vacate suit premises as defendant no.1 is the joint
owner of the suit premises and plaintiff is not the sole owner of suit
premises. It is contended that defendant nos.2 and 3 have been staying
in suit premises along with their two children and they are residing
there since last 29 years. It was nowhere agreed to vacate suit premise
and plaintiff is trying to interpret said decree as per his convenience. It
is alleged that plaintiff is misusing the mechanism of the Court to
illegally grab suit premises. Hence, according to defendants, plaintiff’s
claim deserves to be dismissed. Copies of said plaint and consent
decree are filed by plaintiff on record.
13. It is contended that it is a matter of record that there are three
properties owned by the family and they are situated at Chembur,
Shirdi and Pune. Defendant nos.2 and 3 have signed the consent terms
before the court not to claim any right in respect of those properties but
they have never agreed to remove themselves from suit premises. It is
contended that plaintiff is not the sole owner of the suit premises and
defendant no.1 is the coowner of suit premises as her name is reflected
in share certificate as joint owner of suit premises. It is contended that
Dy.Registrar of cooperative society has not issued any specific
directions for deleting name of defendant no.1 from share certificate of
suit premises, however said authority has merely directed the society to
act as per law. It is contended that plaintiff obtained loan from
Mr.Amish Tripathi, who had filed suit (L) No.452 of 2014 before
Hon’ble High Court and said suit is finally settled on 05/05/2014 by
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defendant no.2 who had made repayment to Mr.Amish Tripathi.
Defendant no.2 has made said repayment from his personal account by
issuing pay order dated 02/07/2014. Copy of order dated 05/05/2014
passed by Hon’ble High Court is already filed by plaintiff on record.
Copy of Pay Order is also annexed to the papers filed by plaintiff.
14. It is contended that plaintiff had obtained loan by mortgaging suit
premises with bank of India and said bank had obtained title certificate
of suit premises prior to disbursal of said loan under the said title
certificate dated 17/02/2015 it has been clearly established that the suit
premises is jointly owned by plaintiff and defendant no.1. Copy of said
title certificate is annexed at page no.65 of the plaint. After compliance
of all requirements, Bank of India, Chakala branch granted credit
facilities to plaintiff to urgently raise funds for the development of his
Pune project, for that purpose defendant nos.1 and 2 stood as guarantor
and suit premises was mortgaged with the bank. Copy of sanction letter
of said bank is annexed to plaint at page no.67. The society in which
suit premises is situated has recorded the lean of Bank of India, Chakala
branch in respect of credit facilities enjoyed by plaintiff and this fact is
evident from letter dated 24/02/2014 issued by society, copy of said
letter is annexed at page no.74 of the plaint. It is alleged that plaintiff
defaulted in the repayment of credit facilities and therefore, Bank of
India, Chakala branch proceeded under SARFASI Act, 2002 to take
physical possession of suit premises, accordingly application was filed
by the bank with Chief Metropolitan Magistrate, Esplanade Court,
Mumbai and said Court allowed said application by virtue of order
dated 06/04/2016 and said Court allowed Bank to take physical
possession of suit premises by assistance of police. Copy of order of
Esplanade Court is annexed at page no.75 of the plaint. It is alleged
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that conduct of plaintiff towards above referred proceedings before the
court is frivolous. It is contended that defendants have never locked the
premises and plaintiff had made false allegations that he was prevented
from meeting any friends or family members. It is alleged that
whatsoever concern is shown by plaintiff towards defendant no.1 is
false and frivolous. It is pointed out that defendant no.1 has filed
Domestic Violence Case No.209/DV/2018 before Metropolitan
Magistrate’s Court, Kurla Mumbai and said Court had passed an interim
order dated 20/07/2018 and said Court protected possession of
defendant no.1 over suit premises. Said Court recorded that defendants
are staying along with plaintiff in suit premises. It is alleged that
plaintiff under influence of alcohol has threatened and assaulted
defendant no.1 to the extent that she had to lodge police report against
plaintiff. Copy of order passed by Metropolitan Magistrate is annexed
at Exh.84 to the plaint.
15. It is contended that plaintiff had addressed a letter to defendant
no.4 asking for deletion of name of defendant no.1 from share
certificate of suit premises upon which defendant no.4 has sent a reply
to plaintiff vide letter dated 08/02/2019 and asked plaintiff to obtain
consent of defendant no.1 for necessary procedure, however defendant
no.1 has never given consent for deletion of her name from share
certificate. Above name mentioned fact was also upheld in the
complaint filed by plaintiff before Subdivisional officer, Eastern
Suburban against defendant nos.2 and 3 along with their two children
praying for the same relief as prayed in this suit. However, said
complaint was dismissed by said authority. It is alleged that plaintiff
time and again tortured defendant no.1. It is contended that defendant
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no.1 never givenup her rights in respect of suit premises and she does
not wish to give up her rights.
16. It is contended that plaintiff has filed this suit only to harass
defendants and prayers made in the plaint are not correct as defendant
no.1 is joint owner of suit premises. According to defendants,
considering the behaviour of plaintiff towards defendant nos.1 to 3
especially against defendant no.1, who is wife of plaintiff, defendant
nos.1 to 3 don’t have any trust left in words of plaintiff and it leads
them to not believe the claim of plaintiff that he will provide defendant
no.1 any flat or any property as pleaded by plaintiff. Further, defendant
no.1 does not wish to sale suit premises or she does not wish to give any
consent for the same. Hence, according to defendant nos.1 to 3 plaintiff
is not entitled to the reliefs claimed in the plaint and notice of motion.
17. Plaintiff had filed additional affidavit after filing of the written
statement of defendant nos.1 and 3. It is contended that an attempt is
made to suggest that plaintiff’s claim is barred by principle of res
judicata in view of filing of suit no.1819 of 2009, however according to
plaintiff, defendants' said contention is false. It is contended that on the
relevant date of filing of said suit, defendant nos.2 and 3 were not
residing in suit premises and they came to reside in suit premises much
thereafter. It is contended that plaintiff has come before the Court by
filing appropriate suit and defendants have placed reliance upon the NC
reports filed by defendant no.1. It is contended that this suit is filed on
12/07/2019 and plaint was admitted on 17/07/2019 and proceedings
were immediately served upon defendants. It is alleged that the NC
report has been filed only to create unwanted record. It is contended
that the domestic violence proceedings are filed by defendant no.1 and
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any order passed in said proceedings, is always subject to the rights of
the parties to be decided by this Court. It is contended that attempt is
being made to suggest that plaintiff obtained various loans for business
purpose and defendant no.2 is repaying said loans. According to
plaintiff, those contentions raised by defendants are false. It is
contended that for the purpose of settling the litigation with third party,
plaintiff has been made to raise the loan and because of it he is facing
financial crisis therefore, he is entitled to deal with suit premises in the
manner he desires. It is specifically denied that defendant no.1 is the
coowner in respect of suit premises. It is contended that the society is
formed in respect of plot owners and not in respect of bungalow
owners. It is pointed out that defendant no.1 has admitted that due to
only love and affection name of defendant no.1 came to be inserted in
the share certificate of suit premises without creating any right in her
favour in respect of suit premises. It is contended that question of
defendant no.2 having supported plaintiff in the business of
construction does not arise. It is contended that at no point of time
defendant no.2 had concern with construction activities and defendant
no.2 has never invested any amount in said business. It is contended
that since defendants have no right in suit premises no question arises
of claim any right by them arises. The attempt is made to suggest that
defendants are residing in suit premises since last 29 years. According
to plaintiff, said residence of defendants cannot be taken into
consideration as at the highest, they have been residing in suit premises
clearly in their capacity as family members having no independent
rights in respect of suit premises.
18. It is contended that the attempt is made by defendants to suggest
that plaintiff holds various other properties and the consent terms
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signed in the previous suit do not contemplate that defendants have
agreed to remove from suit premises. However, according to plaintiff, it
is false attempt. According to plaintiff, defendants have no right of any
nature in respect of suit premises. In respect of the proceedings before
Subdivisional officer plaintiff had contended that those proceedings
have nothing to do with present suit. It is pointed out that the attempt
is made to suggest that there are dispute and differences, defendants
are suggesting that they are happily residing with plaintiff, however
said stand taken by defendants is false.
19. Defendant no.2 has filed his affidavit in reply to the additional
affidavit filed by plaintiff and denied the contentions raised by plaintiff.
It is alleged that there is no urgency in the matter, however plaintiff is
trying all bins to throw defendants out of his life, after having extracted
all the monies from defendants. It is alleged that now when plaintiff is
unable to extract more money, plaintiff has started filing frivolous and
vexatious proceedings one after other before different forums and
courts to demean defendants and to get the sympathy of the Court. It is
contended that in fact plaintiff tried to induct his younger, notorious
brother Mr.Harjitsingh and his wife in suit premises on 31/08/2020.
Mr.Harjitsingh and his wife are parties in domestic violence proceedings
initiated by defendant no.1 and there is NC filed against them on
27/10/2019 in relation to suit premises. It is alleged that plaintiff also
tried to run over defendant no.3 with his Car inside suit premises with
the intention to cause harm to defendant no.3 and NC to that effect is
also registered with Chembur Police Station. It is alleged that plaintiff
has scant regards towards his own family as well as law of the land and
he always attempts to take law in his hands. It is further alleged that
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plaintiff is adopting such tactics only to harass and antagonize
defendants.
20. Defendant no.2 has contended that he is staying in suit premises
along with defendant nos.1, 3 and two children since last 30 years.
Reference to Suit No.1819 of 2009 is also given and it is alleged that
plaintiff got signatures of defendant no.2 on consent terms by deception
as those consent terms prepared by plaintiff were fake. It is contended
that defendant nos.2 and 3 have never agreed to remove themselves
from suit property and plaintiff is not the sole owner of suit premises as
defendant no.1 is also it's coowner. Reference of execution petition
NO.133 of 2019 is given by defendant no.2 and it is contended that said
execution application was dismissed by the City Civil Court vide order
dated 24/01/2020 wherein it was observed by the Court that suit
premises is not exclusively owned by plaintiff and it is jointly owned by
the plaintiff and defendant no.1. Court has further observed that
defendant no.2 had agreed “not to claim any right in the suit property
and defendant no.2 cannot be dispossessed from the same if defendant
no.2 is residing in suit premises along with mother and his family”. It is
contended that plaintiff is trying to issue deceitful letters with the sole
intention to grab the suit property to the exclusion of defendants. It is
contended that Ration Card shows the names of plaintiff and
defendants and it is clearly evidencing that defendants are residing in
suit premises along with plaintiff. Reference to the letter sent by
plaintiff to Mysore CHSL on 27/07/2020, 02/02/2019 is also given.
Letter dated 08/02/2019 sent by Society to plaintiff is also given and it
is pointed out that in said letter Society informed plaintiff that the name
of the member of the society cannot be removed from share certificate
unless said joint member resigns from the membership of the Society on
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its own volition and submits no objection with the Society. Defendant
no.2 has given reference to the correspondence dated 30/08/2007 and
16/03/2014 and it is contended that in said correspondence it is clearly
mentioned that plaintiff and defendant no.1 are joint owners of suit
premises.
21. Defendant no.2 has contended that plaintiff has obtained a letter
from Bank of India by mortgaging suit premises and said bank obtained
title certificate of suit premises from its bank. Said title certificate dated
17/02/2005 clearly establishes that suit premises is jointly owned by
plaintiff and defendant no.1, for said loan transaction defendant no.2
and defendant no.1 stood as guarantors. Lean of said loan is also noted
in the record of the society.
22. It is contended that plaintiff defaulted in the repayment of credit
facilities thereafter bank of India, Chakala bank proceeded under
SARFASI Act, 2002 to take physical possession of suit premises and
bank has moved the application to that effect to CMM, Esplanade Court
and said Court by order dated 06/04/2016 allowed said application of
bank to take physical possession of suit premises along with assistance
of police. It is alleged that plaintiff also unilaterally took advance
money from Mr.Amish Tripathi towards sale of suit property. Reference
of Suit NO.452 of 2014 filed before Hon’ble High Court is also given by
defendant no.2 and it is contended that said suit was finally settled by
defendant no.2 and for it defendant no.2 made repayment to Mr.Amish
Tripathi from the personal account of defendant no.2 has made those
efforts to protect suit premises. Defendant no.2 again has given
reference to Domestic Violence proceedings filed by defendant no.1 and
the order passed by 57th Metropolitan Magistrate Court, Kurla Mumbai.
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It is contended that said Court recorded that defendants are staying
with plaintiff in suit premises and said Court restrained plaintiff from
dispossessing defendant no.1 from suit premises without following due
process of law.
23. It is contended that plaintiff had sometime in the year, 2014
agreed to transfer suit property in the name of Amish Tripathi and to
that effect plaintiff had filled out requisite form and consent letter of
Mumbai District Cooperative Housing Federation Ltd. for transferring
the suit premises and said consent letter bearing signatures of plaintiff
and defendant no.1 as the share holders. Society vide its letter dated
09/12/2013 certified the title devotion of suit premises wherein it is
clearly mentioned that presently suit premises is jointly owned by
plaintiff and defendant no.1 and lean is recorded in books of the
Society. On 09/09/2015 plaintiff sent a letter to AGM, Bank of India
Chakala branch and plaintiff informed bank about intending sale of two
properties and requested the bank for extension of time for repayment
of outstanding dues. Said letter was duly signed by plaintiff, defendant
no.1 and defendant no.2. It is contended that plaintiff time and again
has alleged that defendant no.1 has no right in suit property, however
when it came to the expenses with regards to suit property plaintiff had
absolutely no qualms in making defendant no.1 and defendant no.3 pay
for the same without contributing a single penny for the same. It is
contended that defendant nos.1 and 3 from their bank accounts with
Punjab and Maharashtra Cooperative Bank, State Bank of India and
DCB Bank Ltd. have been regularly making payments of electricity bills,
Society maintenance charges, Mahanagar Gas charges etc. In past
defendant no.2 had paid huge amount to plaintiff. It is alleged that
plaintiff is not only looting defendants of their rightful money but
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plaintiff is also harassing defendants by making application to
Dy.Registrar, Cooperative Societies, New Mumbai to remove name of
defendant no.1 from share certificate of suit premises. Plaintiff has also
harassed defendants by sending goons over to suit premises on
25/03/2018 to throw defendants out of suit premises without following
due process of law. Hence, on 20/05/2018 defendant had requested
the Society for CCTV footage of 25/03/2018. Defendant no.1 had sent
letter dated 25/07/2018 to Society and requested not to entertain any
application seeking transfer of right, title and interest of defendant no.1
in suit premises on the part of plaintiff. Defendant no.1 had also sent a
letter dated 06/05/2019 to Dy.Registrar Coperative Societies New
Mumbai and requested said authority to look into the matter. It is
contended that defendant no.1 has never given any consent in respect
of sale of suit premises and he is not intending to give up her rights. It
is contended that considering behaviour of plaintiff towards defendants,
now the defendants do not have trust towards plaintiff. It is alleged
that present suit is fraudulent and in past defendants have filed several
complaints against plaintiff in respect of constant harassment of
plaintiff. Various letters and documents referred in additional affidavit
are also filed by defendant no.2 on record.
24. Plaintiff has filed two more additional affidavits for replying
additional affidavit filed by defendant no.2 and for referring some
documents. In said additional affidavits plaintiff had contended that he
is being harassed by defendants and there is every threat to his life. It
is contended that defendants have suggested that plaintiff intends to
throw defendants out of suit premises, however according to plaintiff he
is owner of suit premises and he has every right to deal with suit
premises in the manner as he desires. It is contended that plaintiff is
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not that cruel as defendants are granting and he has already offered
that he is ready and willing to provide small flat in the vicinity to
defendant no.1 for her benefits. It is contended that defendants have
given reference of proceedings under domestic violence act, however
according to plaintiff those proceedings have nothing to do with present
suit. It is contended that reference to the incidents of 27/10/2019 and
01/09/2020 is given but the contentions about those incidents are false.
It is contended that even though name of defendant no.1 is appearing
in share certificate, she has nothing to do with suit premises and even
by stretch of imagination she can be a coowner of suit premises. The
Ration Card shows the names of defendant as the members of the
family and said Ration card does not create any right in favour of
defendants. Hence, according to plaintiff, allegations made by
defendants are false. It is contended that the order passed in execution
application is already challenged before the Court and hence no
reliance can be placed upon it. It is contended that executing court
cannot travel beyond scope of decree and even if any such observations
are made by said Court they are beyond the scope of decree and hence
bad in law. It is contended that the title certificate referred by
defendants was obtained for the purpose of availing necessary funds
from financial institution and by virtue of said title certificate no rights
of third party can be created in any manner. While referring order
passed by 57th M.M.Court, Kurla in Domestic Violence Act proceedings it
is contended at the highest it can be said about said order that plaintiff
has been restrained from disturbing possession of defendants without
following due process and for due process he has filed this suit. It is
contended that on the basis of title reports no rights are created in
favour of defendants. It is contended that defendants have admitted to
suggest that they are making necessary contribution towards payment
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in respect of suit premises for its maintenance, however the same does
not create any right in favour of defendants in suit premises. It is
contended that NC reports filed by defendants show that matter is of
serious nature and is required to be dealt with in accordance with law.
It is contended that the loan obtained by defendant no.2 is fully utilized
by defendant no.2 and plaintiff was required to repay said amount by
making payment to respective parties. The bank statements of plaintiff
shows that he has been paying huge amount to his wife and son.
Hence, according to plaintiff, defendants have no defence to oppose the
relief prayed by plaintiff.
25. Defendant no.4 Society has filed its written statement Exh.5 and
contended that the written statement is being filed for limited purpose
without going through the merits and without going into any internal
dispute between plaintiff and defendant nos.1 to 3. It is contended that
defendant no.4 is a owner of large property in village Anik, Chembur
Tq.Kurla, District Mumbai Suburban and defendant no.4 society is
formed by different plot owners and the society has nothing to do with
the structures constructed on the plots. The society is a tenant co
partnership society. It has 96 members and suit premises is on the one
of the plot of the society. As per byelaws of the society whosoever
purchases any subdivided plots is admitted as the member of the
society. Plaintiff has acquired plot on 18/03/1991 and he is admitted
as member of the society on 14/04/1991. Plaintiff constructed
bungalow on said plot on 199394. Plaintiff had requested the society
to incorporate name of defendant no.1 in the record of the society and
accordingly said request was accepted and endorsement to that effect
was made on share certificate on 12/01/1992. Name of defendant no.1
has been incorporated in share certificate without creating any right in
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respect of the plot in question, plaintiff had been lawful owner of the
plot and he has submitted necessary nomination with society.
26. It is contended that on the request of plaintiff and defendant no.1
for obtaining loan, NOC might have given by society jointly in the name
of plaintiff and defendant no.1. It is contended that other pleadings in
the plaint are not related to defendant no.4 and the society defendant
no.4 has no concern with internal dispute between plaintiff and
defendant nos.1 to 3 and as such nothing shall remained to have been
admitted by defendant no.4 and nothing should be treated to have been
denied by defendant no.4. Copy of application dated 14/05/1991
submitted by plaintiff. Copy of share certificate showing the names of
plaintiff and defendant no.1 is also filed by defendant no.4 before the
Court.
27. Advocate Mr.Saraogi for plaintiff and advocate Mr.Yogendra
Kanchan for defendant nos.1 to3 have argued the matter at length.
Plaintiff's advocate Mr.Saraogi referred various documents filed with
plaint, written statement of defendant no.4 and additional affidavit filed
by defendant no.2. Advocate Mr.Saraogi argued that membership of
society will not confer title of property in favour of defendant no.1. It is
pointed out that membership of the society is in relation to the plot
only and it is not related to the structure constructed on said plot. It is
argued on behalf of plaintiff that plaintiff being the owner of the suit
premises is entitled to deal with it as it is self acquired property of
plaintiff. It is argued that plaintiff is intending to dispose off suit
premises and even though defendant no.1 has no title over suit
premises, plaintiff is ready to give 50% of the valuation from the plot to
defendant no.1 alternatively, plaintiff is ready to give separate flat for
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residence of defendant no.1. It is argued that plaintiff is not having
responsibility of maintaining defendant nos.2 and 3 because defendant
no.2 is adult and he can take care of himself, his wife and children.
28. Defendants' advocate Mr.Yogendra Kanchan submitted that
defendants are not disturbing possession of plaintiff over suit premises,
hence no question arises of granting injunction in terms of prayer
clause(b) of notice of motion. It is submitted that relief claimed in
prayer clause(a) of notice of motion, if will be granted, it will amount
to grant final relief at the time of passing of order in notice of motion.
According to defendants' advocate such final relief cannot be granted at
interim stage. Defendants' advocate referred all the documents annexed
to the plaint, written statement as well as to the additional affidavits
filed by plaintiff and defendants. It is argued that declaration sought by
plaintiff cannot be granted or interim relief in terms of prayer clause(a)
of notice of motion cannot be granted because plaintiff's prayer to that
effect is hit by principle of resjudicata in view of consent terms filed in
suit of the year, 2009 which was filed by plaintiff himself. By referring
various documents defendants advocate pointed out that plaintiff
himself is troubling defendants and not the defendants are harassing
plaintiff. It is argued that plaintiff himself has requested the society
note down name of defendant no.1 in the share certificate of suit
premises as the member of the society. It is pointed out that
confirmation deed of 2005 executed by plaintiff is confirming the rights
of defendant no.1 in suit premises, however said confirmation deed is
with plaintiff. It is argued that plaintiff has harassed the defendant no.1
to the extent that she was required to knock the doors of Magistrate's
Court for seeking relief under Prevention of Domestic Violence Act and
the order for protecting possession of defendant no.1 in suit premises as
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sharehold house is also passed by concerned Magistrate Court.
Defendants' advocate argued that whenever the loans are required to
be obtained, plaintiff uses defendants as a shield and now as per his
whims he is intending to throw out defendants from suit premises. It is
argued that plaintiff has entered into agreement for conveyance of suit
premises in favour of Mr.Amish Tripathi who had filed suit for specific
performance before Hon'ble High Court and in said suit consent terms
were filed. Accordingly, the order to that effect was passed by Hon'ble
High Court. In pursuance of said order, defendants have paid amount of
Rs.53,00,000/ to Mr.Amish Tripathi and defendants are trying to
protect suit premises. It is argued that defendants are trying to protect
suit premises. Defendants' advocate pointed out that conduct of plaintiff
from various NC reports and orders passed by the Magistrate's Court
and Executing Court will show that plaintiff has filed various
proceedings and he has made defendants to file various reports.
Defendants' advocate cited following case laws to point out that final
relief cannot be granted at the stage of granting interim reliefs.
i) State of U.P. and Ors. V/s. Ram Sukhi Devi,
(2005)9 Supreme Court Cases 733 wherein it is observed that..
“8. To say the least, approach of the learned Single Judge and the
Division Bench is judicially unsustainable and indefensible.
The final relief sought for in the writ petition has been
granted as an interim measure. There was no reason indicated
by learned Single Judge as to why the government order
dated 26/10/1998 was to be ignored. Whether the writ
petitioner was entitled to pray relief in the writ petition has to
be adjudicated at the time of final disposal of the writ
petition. This Court has on numerous occasions observed that
the final relief sought for should not be granted at an interim
stage. The position is worsened if the interim direction has
been passed with stipulation that the applicable government
order has to be ignored. Time and again this Court has
deprecated the practice of granting interim orders which
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practically give the principal relief sought in the petition for
no better reason than that of a prima facie case having been
made out, without being concerned about the balance of
convenience, the public interest and a host of other
considerations.
ii) Samir Narain Bhojwani V/s. Aurora Properties and
Investments and another,
(2028)17 Supreme Court Cases 203 wherein it is observed
that...
“24. That apart, the learned Single Judge as well as the
Division Bench have committed fundamental error in applying
the principle of moulding of relief which could at best be
resorted to at the time of consideration of final relief in the
main suit and not at an interlocutory stage. The nature of
order passed against the appellant is undeniably a mandatory
order at an interlocutory stage. There is marked distinction
between moulding of relief and granting mandatory relief at
an interlocutory stage. As regards the latter, that can be
granted only to restore the status quo and not to establish a
new set of things differing from the state which existed at the
date when the suit was instituted. This Court in Dorab
Cawasji Warden Versus Coomi Sorab Warden, has had
occasion to consider the circumstances warranting grant of
interlocutory mandatory injunction. In paragraphs 16 & 17,
after analysing the legal precedents on the point as noticed in
paragraphs 1115, the Court went on to observe as follows:
“16. The relief of interlocutory mandatory injunctions are thus
granted generally to preserve or restore the status quo of the
last noncontested status which preceded the pending
controversy until the final hearing when full relief may be
granted or to compel the undoing of those acts that have been
illegally done or the restoration of that which was wrongfully
taken from the party complaining. But since the granting of
such an injunction to a party who fails or would fail to
establish his right at the trial may cause great injustice or
irreparable harm to the party against whom it was granted or
alternatively not granting of it to a party who succeeds or
would succeed may equally cause great injustice or
irreparable harm, courts have evolved certain guidelines.
Generally stated these guidelines are:
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(1) The plaintiff has a strong case for trial. That is,
it shall be of a higher standard than a prima facie case that is
normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious
injury which normally cannot be compensated in terms of
money.
(3) The balance of convenience is in favour of the
one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of
an interlocutory mandatory injunction shall ultimately rest in
the sound judicial discretion of the court to be exercised in
the light of the facts and circumstances in each case. Though
the above guidelines are neither exhaustive nor complete or
absolute rules, and there may be exceptional circumstances
needing action, applying them as prerequisite for the grant or
refusal of such injunctions would be a sound exercise of a
judicial discretion.” (emphasis supplied)
25. The Court, amongst others, rested its exposition on the
dictum in Halsbury s Laws of England, 4th edition, Volume	‟
24, paragraph 948, which reads thus:
“948. A mandatory injunction can be granted on an
interlocutory application as well as at the hearing, but, in the
absence of special circumstances, it will not normally be
granted. However, if the case is clear and one which the court
thinks ought to be decided at once, or if the act done is a
simple and summary one which can be easily remedied, or if
the defendant attempts to steal a march on the plaintiff, such
as where, on receipt of notice that an injunction is about to be
applied for, the defendant hurries on the work in respect of
which complaint is made so that when he receives notice of
an interim injunction it is completed, a mandatory injunction
will be granted on an interlocutory application.”
26. The principle expounded in this decision has been
consistently followed by this Court. It is well established that
an interim mandatory injunction is not a remedy that is easily
granted. It is an order that is passed only in circumstances
which are clear and the prima facie material clearly justify a
finding that the status quo has been altered by one of the
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parties to the litigation and the interests of justice demanded
that the status quo ante be restored by way of an interim
mandatory injunction.
iii) Puroshattom Vishandas Raheja and Another V/s.
Shrichand Vishandas Raheja and Another,
(2011)6 Supreme Court Cases, 73 wherein it is observed
that...
“24. As far as this judgment in Dorab Cawasji Warden is
concerned, it must be noted that it was a suit by one joint
owner of an undivided family house to restrain the other joint
owners/their heirs from transferring their share of the house
and from parting with possession to a third party/purchaser
and restraining the purchaser from entering into and or
remaining into possession of the suit property. This was on
the basis of the mandate of Section 44 of the Transfer of
Property Act and particularly its proviso. This Court went into
the question as to whether interlocutory injunction of a
mandatory character as against the prohibitory injunction
could be granted? The counsel for the respondents pointed
out that the mandatory injunctions were essential to avoid
greater risk of injustice being caused as held in Films Rover
International Ltd. V. Cannon Film Sales Ltd. There is no
difficulty in accepting that this Court did accept that test. It,
however, laid down the law in that behalf in paras 17 and 17
as follows:
“16. The relief of interlocutory mandatory
injunctions are thus granted generally to preserve or restore
the status quo of the last noncontested status which preceded
the pending controversy until the final hearing when full
relief may be granted or to compel the undoing of those acts
that have been illegally done or the restoration of that which
was wrongfully taken from the party complaining. But since
the granting of such an injunction to a party who fails or
would fail to establish his right at the trial may cause great
injustice or irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party who
succeeds or would succeed may equally cause great injustice
or irreparable harm, courts have evolved certain guidelines.
Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is,
it shall be of a higher standard than a prima facie case that is
normally required for a prohibitory injunction.
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(2) It is necessary to prevent irreparable or serious
injury which normally cannot be compensated in terms of
money.
(3) The balance of convenience is in favour of the
one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an
interlocutory mandatory injunction shall ultimately rest in the
sound judicial discretion of the court to be exercised in the
light of the facts and circumstances in each case. Though the
above guidelines are neither exhaustive nor complete or
absolute rules, and there may be exceptional circumstances
needing action, applying them as prerequisite for the grant or
refusal of such injunctions would be a sound exercise of a
judicial discretion.”
25. In Metro Marins V. Bonus Watch Co.(P) Ltd.the respondent had filed
a suit for possession contending that the licence of the
appellant to the suit property had expired. The respondent
had prayed for a judgment on admission and alternatively an
injunction directing the appellant to immediately hand over
vacant and peaceful possession of the suit property. The
learned Single judge of the Calcutta High Court who heard
the reason to pass such an order in view of the fact that the
suit was still pending and granting of such relief would
tantamount to a decree before trial. The Appellate Bench,
however, reexamined the facts and observed the litigation to
be a luxury litigation and directed the Receiver to put the
respondentplaintiff in possession. In the appeal to this Court,
the learned counsel for the appellants pointed out that the
appellants were very much in possession of the premises and
the order passed by Division Bench was contrary to the law
laid down in Dorab Cawasji Warden. The counsel for the
respondents, on the other hand, defended the order of the
Divison Bench by contending that the period of license having
come to an end, mandatory injunction passed by the Division
Bench was justified.....
….28. In our view, the learned single judge has considered
all the relevant aspects of the matter and thereafter passed
the limited interim order whereby documents for sale of the
flats will continue to be signed by the respondents, though,
the monies coming into the bank account thereafter will be
utilized only for the purposes that are necessary, as stated in
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para 22 extracted above. The appellants have not been
directed to be removed from the property inasmuch as they
were the people on the spot carrying on the development
prior to filing of the suit. The order sought by the
respondents, if granted, would mean granting all the reliefs
and a sort of pretrial decree without the opportunity to the
appellants to have their plea examined with respect to the
family arrangement, which plea is supported by their sisters.”
29. In reply plaintiff's advocate Mr.Saraogi submitted that case laws
cited by defendants are not applicable to present case and no specific
principle are laid down in those case laws. Further, observations from
those case laws are based on the facts of those cases and the facts of
present suit are different from the facts from cited case laws. Advocate
Mr.Saraogi further submitted that principle of resjudicata cannot be
made applicable in present suit.
30. I have given serious consideration to the pleadings, documents
filed by parties on record and to the arguments advanced on behalf of
the parties. It is admitted fact that 57th M.M.Court, Kurla has passed an
order under Prevention of Domestic Violence Act and restrained
plaintiff from causing obstruction into possession of defendant no.1
over suit premises. Thereafter, it seems that plaintiff has filed this suit.
Not only it, in execution proceedings the executing Court has
admittedly observed that plaintiff cannot execute the decree passed in
the suit of 2009 and he cannot dispossess defendant nos.2 and 3 from
the suit premises as they are residing in suit premises along with
defendant no.1 and through defendant no.1. The main crux of the
matter lies in the fact that plaintiff himself has made defendant no.4
Society to enter name of defendant no.1 in the share certificate of suit
premises. Even though, share certificate will not create ownership of
defendant no.1 over suit premises now the difficulty is that without
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consent of defendant no.1 plaintiff cannot dispose off suit premises as
per his whims because plaintiff himself has made the Society to enter
the name of defendant no.1 as cosharer of the share certificate.
Defendants' advocate has pointed out that in the year, 2005 plaintiff has
executed one confirmation deed confirming rights of defendant no.1 in
suit premises. It is argued that said confirmation deed is with plaintiff.
According to me, said confirmation deed was necessary to be filed by
plaintiff before this Court for the decision of this notice of motion
because from said confirmation deed the Court could have noticed the
fact that whether any title rights are created in suit premises in favour
of defendant no.1. Admittedly while obtaining the loan from bank of
India, plaintiff had shown defendant no.1 as coowner of suit premises.
If really, defendant no.1 would not have any right in suit property,
plaintiff would not have referred her as coowner of suit premises. Not
only it, defendant no.2 admittedly had paid amount of Rs.53 Lacs to
Mr.Amish Tripathi fo protecting suit premises. Further, documents on
record show that defendant nos.1 and 3 on so many times have paid
maintenance charges, electricity charges etc of suit premises. If really,
defendant no.1 would not have any right or interest in suit premises,
definitely she would not have deposited maintenance charges and she
would not have born other expenses of suit premises. Admittedly,
defendant no.1 is wife of plaintiff and it is duty of plaintiff to allow her
to reside in suit premises, however defendants have alleged that
whenever plaintiff requires to obtain the loan he uses defendants and
now he is intending to throw out defendants from suit premises.
Plaintiff and defendant nos.1 to 3 are members of the family.
Admittedly defendant no.2 is son of plaintiff and defendant no.3 is
daughter in law of plaintiff. Even though, plaintiff has denied that
defendant no.2 is assisting in various projects of plaintiff, the
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documents on record shows that defendant no.2 has paid amount of
Rs.53 lacs for the responsibility of plaintiff. If really as a member of the
family of plaintiff and to give assistance to plaintiff, defendant no.1
would have paid huge amount of Rs.53 Lacs for the responsibility of
plaintiff, I find that defendant no.2 is trying to protect suit premises for
the interest of his mother defendant no.1 and in such circumstances, I
find that unless the confirmation deed of the year, 2005 executed by
plaintiff in favour of defendant no.1 comes on record and unless
plaintiff proves on merits by adducing cogent evidence that defendant
no.1 absolutely has no right title and interest in suit premises, she
cannot be dispossessed from suit premises and as defendant nos.2 and 3
are residing in suit premises through defendant no.1, they also cannot
be thrown away simply. It seems that due to the matrimonial
misunderstanding plaintiff is intending to throw away defendant's from
suit premises. As argued by the parties, plaintiff is owner of suit
premises, however the fact in dispute is that defendant no.1 is claiming
to be coowner of suit premises. In such circumstances unless plaintiff
proves his exclusive ownership over suit premises, defendants cannot be
simply thrown away from suit premises. Hence, relief claimed in prayer
clause(a) of notice of motion cannot be granted and plaintiff will have
to reside in suit premises along with defendants as they are his family
members. Further under prevention of Domestic Violence Act plaintiff is
already restrained from causing obstruction into possession of
defendant no.1 over suit premises. On that ground also relief claimed in
prayer clause(a) of notice of motion cannot be granted. However,
plaintiff is owner of suit premises and he has every right to enjoy suit
premises therefore, defendant cannot cause obstruction into plaintiff's
possession over suit premises. Eve the married daughter of plaintiff can
visit suit premises but she cannot occupy it permanently as she will have
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to reside at her husband's residence and she will have to take care of
her husband and family. At this stage Court cannot pass any comment
about the order passed by City Civil Court in Execution Application
No.123 of 2019 and order passed by 58th Metropolitan Magistrate's
Court, Kurla in Proceedings No. No.209/DV/2018 under Prevention of
Domestic Violence Act because separate remedy for challenging those
orders are available for plaintiff and the competent court will have to
decide in appeal the validity of those orders. In such circumstances,
Notice of motion can be partly allowed and plaintiff's possession over
suit premises along with possession of defendants can be protected.
Hence, I proceed to pass following order.
O R D E R
1. NM No.2999 of 2019 is partly allowed.
2. Relief in terms of prayer Clause(a) of NM stands rejected.
However, the relief in terms of prayer clause(b) of the NM is
granted to the extent that defendants are temporarily restrained
till the decision of this suit from disturbing plaintiff's possession
in respect of the premises being Bungalow NO.74, Guruprasad
situated at Mysore Colony Chembur, Bombay400074.
Sd/
(K.P.NANDEDKAR)
09/11/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 07/11/2020 & 09/11/2020
Transcribed on : 03/12/2020
Signed by HHJ on : 03/12/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
03/12/2020 12.55PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 09/11/2020
Judgment/order signed by P.O on 03/12/2020
Judgment/order uploaded on 03/12/2020
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