Final Order 1

Order Details: Notice of Motion
Pdf Text: NM no. 3469/2019 in SC Suit No.2482/2019. 1 Order
MHCC010094592019
Presented on : 17-09-2019
Registered on : 17-09-2019
Decided on : 29-06-2022
Duration : 02years,09 months,13days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO.3469 OF 2019
IN
S.C. SUIT NO. 2482 OF 2019
CNR NO.MHCC01-009459-2019
Priti Prashant Jadhav )...Plaintiff
Versus
Anusaya Sahebrao Jadhav )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 29th JUNE, 2022.
Shri Pravin Sawant, Advocate for the plaintiff.
Shri Vachan Bodke, Advocate for the defendants.
ORDER
1. The plaintiff has taken out the notice of motion for interim
relief against the defendant. Perused Notice of Motion, affidavit in reply
and rejoinder.
-- 1 of 6 --
NM no. 3469/2019 in SC Suit No.2482/2019. 2 Order
2. Heard Ld. Counsel Shri Pravin Sawant for the plaintiff and
Ld. Counsel Shri Vachan Bodke for the defendant.
3. On perusal of the contents in the plaint, written statement
and notice of motion proceeding. It appears that the plaintiff alongwith
her son Parag and daughter Yukta are residing in Flat No. A/703,
Nebhrunagar Shree Ganeshprasad Coop Hsg. Soc. Ltd, Building No.50,
Nehru Nagar, Kurla (East), Mumbai 400 024 (Suit premises). The
husband of the plaintiff namely Prashant expired on 01.02.2011. The
plaintiff had married with the Prashant on 01.01.2000 and she was
residing with her inlaws in house at B/2/3, Vimochit CHS Ltd., Kamgar
Nagar, Kurla (East). Fatherinlaw of the plaintiff had expired before
her marriage with Prashant. The defendant is the motherinlaw of the
plaintiff. The plaintiff is also having two sisterinlaws.
4. She has stated about the cruelty and harassment from the
defendant and her late husband. She lodged NC report to Nehru Nagar
Police Station on 05.08.2007 against her husband and the defendant.
The suit premises was purchased in the name of the defendant out of
contribution made by the plaintiff from her saving, sale of jewelery and
also from sale proceeds of ancestral property ie. B/2/3, Vimochit CHS
Ltd., Kamgar Nagar, Kurla (East). The plaintiff started working in
Balvikas Mandir, Primary School, Aadarsh Nagar, Worli, Mumbai400
003 in the year 2006 and she bears all the expenses and outgoing in
respect of suit premises. She also bears expenses of upbringing her
children. She pays electricity charges and maintenance bills of the
society.
5. On 23.08.2019, the plaintiff received letter from PSI
-- 2 of 6 --
NM no. 3469/2019 in SC Suit No.2482/2019. 3 Order
Nehrunagar Police Station to remain present on 26.08.2019. When she
went to the Nehrunagar Police Station, the defendant taking advantage
of being Senior Citizen and the member of Political Party, pressurized
plaintiff through police to record her statement that she will vacate the
suit premises with her children permanently. On 27.08.2019, the
defendant came to the suit flat at 12 noon and she started to abuse the
plaintiff in presence of her daughter. Hence, the plaintiff filed suit for
permanent injunction. The plaintiff is praying for temporary injunction
in the present notice of motion.
6. The defendant has admitted relationship and ownership of
the suit premises, but disputed contribution of the plaintiff in
purchasing the suit premises. According to her, she was working as a
Principal in a BMC School at Chembur and she retired in the year
2007.She purchased the suit premises by using her own income and
paid the consideration amount by cheque. The defendant claimed that
the plaintiff lodged false complaint against her. The plaintiff was not
working at the time of her marriage with Prashant. The defendant
allowed plaintiff and her children to reside in the suit premises because
she felt petty for them. The defendant also pleaded about physical
assault by the plaintiff on her person. She also narrated about use of
filthy language by the plaintiff. The plaintiff filed suit for pressurizing
the defendant to transfer the suit premises in her name. The defendant
prayed for rejection of the notice of motion.
7. Ld. Counsel Pravin Sawant for the plaintiff reiterated the
contentions in the plaint and submitted that there is threat to possession
of the plaintiff over the suit premises. The defendant gifted one flat to
her daughter and she wants to oust the plaintiff from the suit premises.
-- 3 of 6 --
NM no. 3469/2019 in SC Suit No.2482/2019. 4 Order
The daughter of the defendant executed Leave Agreement in favour of
the defendant on monthly rent of Rs.10,000/ in respect of the second
flat. Conduct of the defendant is unnatural. He prayed to allow the
notice of motion.
8. On the contrary, Ld. Counsel Vachan Bodke for the
defendant submitted that the defendant is the 72 years old lady. The
defendant is the owner of the suit premises. The agreement is executed
in her favour and receipts are issued in her name. As the defendant
wants to reside in the suit premises, she has filed application before the
tribunal for allowing her to stay in the suit premises. There is no prima
facie case and balance of convenience in favour of the plaintiff. Reliefs
sought for cannot be granted. He prayed for dismissal of the notice of
motion.
9. Considering material on record and rival contentions, the
plaintiff is the daughterinlaw of the defendant. The defendant claims
to have approached the tribunal by resorting to provisions of the
Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
Admittedly, the suit premises is in the name of defendant. The plaintiff
alongwith her children are residing in the suit premises. Now, the
plaintiff wants to agitate the issue of financial help made for purchasing
the suit premises. If section 14 of the Hindu Succession Act,1956 is read
in the context of the facts of this case, absolute rights of ownership are
conferred upon a Hindu woman in whose name an immovable
property is purchased. Furthermore, the defendant being owner cannot
be prevented from entering into the suit premises and from staying in it.
It is pertinent to note that the plaintiff is residing in the suit premises
being daughterinlaw of the defendant and not in the capacity of the
-- 4 of 6 --
NM no. 3469/2019 in SC Suit No.2482/2019. 5 Order
tenant or licensee. In such circumstances, there is lack of prima facie
case and balance of convenience in favour of the plaintiff. Even then,
the relief in terms of prayer Clause (a) can be granted by preventing the
defendant from ousting or evicting the plaintiff and her children from
the suit premises without following due course of law. At the same
time, it is made clear that the plaintiff has no right to prevent the
defendant from entering into the suit premises. The defendant cannot
be prevented from exercising her right as a owner to sell the suit
premises. Therefore, prayer Clause (b) can't be granted by putting
fetters on rights of the defendant. In the result, notice of motion can be
allowed partly. Hence, I proceed to pass following order:
ORDER
1. Notice of Motion No. 3469/2019 is made absolute in
terms of prayer clause (a).
2. Proceeding of NM No. 3469/2019 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 29/06/2022. Mumbai.
1. Dictated on :29/06/2022.
2. Transcribed on :29/06/2022.
3. Signed on :30/06/2022.
4. Delivered to Certified :
Copy Section on
-- 5 of 6 --
NM no. 3469/2019 in SC Suit No.2482/2019. 6 Order
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29/06/2022. 4.15 p.m. Miss K.M. Rana.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 29/06/2022
Judgment/Order signed by P.O. on 30/06/2022
Judgment/Order uploaded on 30/06/2022
-- 6 of 6 --