Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.3521/19
in SU No.2130/19.
MHCC010095882019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3521 OF 2019
IN
S.C. SUIT NO. 2130 OF 2019
Krishna Poovappa Shetty ... Plaintiff
V/s.
Joanita Constancio Fernandes and Ors. ... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.29).
DATE : 17/01/2024.
Appearance:
Ld. Advocate S.S. Redekar for the plaintiff.
Ld. Advocate Sandeep Vasant Bane for the defendant No.1.
ORDER
1. Plaintiff has taken out this Notice of Motion for following
reliefs
(a). Defendant No.1 by herself, through her agents be
restrained by an order of temporary injunction from alienating,
encumbering, transferring, creating any third party rights or selling or
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disposing of the suit premises viz. Room No.95, 1st Floor, Building no.3,
Fisherman Colony, Mahim (West), Mumbai16.
(b) Defendants be restrained by order of temporary injunction
from dispossessing and/or disturbing the joint possession of the plaintiff
over the aforesaid premises.
(c). Defendants No.2 and 3 be restrained by an order of
temporary injunction from entering into agreement for providing
permanent alternate accommodation exclusively with the defendant
No.1 and further the plaintiff and defendant No.1 are equally entitled
for transit camp premises and/or rent from defendants No.2 and 3.
2. Defendant No.1 filed affidavit in reply and opposed the
Notice of Motion.
3. I have heard learned Advocate Shri. S.S. Redekar for
plaintiff and learned Advocate Sandeep Bane for defendant No.1.
4. Plaintiff has filed present suit for declaration of his joint
ownership and permanent injunction. Plaintiff and defendant No.1 are
residing in liveinrelationship since 1992. Earlier they were residing in
Room No.6/24, 2nd Floor, Rang Udyan, S.R. Road, Mahim, Mumbai and
they were looking after towards one Ketty D'souza as a caretakers.
After death of Ketty D'souza, Room No.6/24 went in redevelopment and
the developer paid money equally to plaintiff and defendant No.1. By
using said amount, plaintiff and defendant No.1 purchased the suit
premises i.e. Room No.95, 1st Floor, Building no.3, Fisherman Colony,
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Mahim (West), Mumbai16 (hereinafter referred to as “suit premises”)
In the year 1996. Though suit premises was purchased in the name of
defendant No.1, plaintiff have equally contributed for purchase of suit
premises. Since purchase of the suit premises, plaintiff, defendant No.1
and her daughter are jointly residing in the suit premises. Name of
plaintiff is entered in the ration card and he obtained telephone
connection at the address of suit premises in his name. He also obtained
Voter ID card, Aadhar card on the address of suit premises. In the year
2012, plaintiff and defendant No.1 jointly executed affidavit wherein
defendant No.1 admitted that plaintiff had contributed consideration
for purchase of suit premises.
5. It is further contended that, in or about 2015, dispute
started between plaintiff and defendant No.1. Plaintiff filed complaint
against defendant No.1 to police on 13.08.2015. Then he gave notice
through his advocate to defendant No.1 on 21.04.2016 as defendant
No.1 was threatening to dispossess the plaintiff from suit premises.
Then defendant No.1 filed complaint under Domestic Violence Act
against the plaintiff. Interim order for maintenance was passed in the
said proceeding. Plaintiff filed appeal challenging the said order and
succeeded in the appeal. Thereafter, plaintiff again given threats to
dispossess the plaintiff to suit premises. Hence, plaintiff is constrained
to file present suit for declaration and permanent injunction. By present
Notice of Motion, plaintiff is seeking interim relief as mentioned above.
6. Learned advocate Shri. Redekar for plaintiff submitted that,
plaintiff is having number of documents showing is residence
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continuously since 1996 in the suit premises. Defendant No.1 admitted
in her written statement execution of affidavit thereby admitting that
plaintiff had contributed for purchase of the suit premises. The only
ground of coercion and harassment for executing the agreement is
taken in the written statement without any complaint. Primafacie
plaintiff has strong case for protecting his possession and balance of
convenience lies in his favour. If temporary injunction is not granted,
he will be dispossessed and suffer irreparable loss. Learned advocate
further argued that, the suit premises would go in redevelopment and
defendants No.2 and 3 be restrained by temporary injunction, entering
into an agreement for permanent alternate accommodation exclusively
in favour of defendant No.1. Lastly, learned advocate for plaintiff
prayed to allow the Notice of Motion.
7. Learned Advocate Shri. Sandeep Bane for defendant No.1
argued that, there is no any progress regarding redevelopment and
prayer clause(c) cannot be granted at interim stage. He argued that
there is no document showing title of plaintiff on the suit premises.
There is no document showing contribution by plaintiff for purchase of
suit premises. The documents of residence are not useful to hold title of
plaintiff over the suit premises. Defendant No.1 only granted permission
to plaintiff to reside in the suit premises. No cause of action taken place
to file present suit. Plaintiff has not filed any complaint about threats of
dispossession by defendant No.1. The suit is filed only after
maintenance order was passed by M.M. Court in the D.V. proceeding.
Plaintiff has no primafacie case to grant interim relief. He is not entitled
for any interim relief. Learned advocate prayed to dismiss the Notice of
Motion.
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8. In view of the pleadings, following points arose for my
determination and findings with reasons thereon are stated as below :
Sr.No Points Findings
1 Whether plaintiff has made out prima
facie case ?
In the affirmative.
2 Whether balance of convenience lies in
favour of plaintiff ?
In the affirmative.
3. Whether irreparable loss will cause to
the plaintiff ?
In the affirmative.
4. What order? As per final order.
R E A S O N S
As to point nos.1 to 4 :
9. I have considered submissions and perused the record. As
per the case of plaintiff, he is residing in liveinrelationship with
defendant No.1 since 1992. Joint residence of plaintiff with defendant
No.1 is not much disputed. Copies of Aadhar card, Voter ID card and
Ration card placed by plaintiff with the plaint are showing that plaintiff
is residing in the suit premises continuously since 1996. Though,
plaintiff has not filed any document about his title, but his contention is
that suit premises is purchased in the name of defendant No.1 and he
had equally contributed consideration to purchase the suit premises.
Primafacie I find substance in this contention in view of affidavit
executed by defendant No.1 jointly with plaintiff in the year 2012.
Defendant No.1 has not denied execution of said affidavit in para 6 of
her written statement. What she asserted regarding the said affidavit is
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that it was got executed by plaintiff under coercion and harassment.
The affidavit is executed in the year 2012. It is pertinent to note that
defendant No.1 had not made any complaint about harassment and
coercion by plaintiff for got executing of said affidavit. Whether the
affidavit was got executed under coercion is a matter of trial. However,
in absence of complaint by defendant No.1, the affidavit is sufficient to
primafacie hold right of plaintiff in the suit premises.
10. It is argued that, plaintiff had not made any complaint
about threats of dispossession, but copy of the letter dated 21.04.2016
annexed to the plaint is showing that plaintiff had given said letter to
Mahim Police Station alleging threats of dispossession by defendant
No.1. In view of these documents, I find that plaintiff has primafacie
case showing his interest and right of ownership of possession jointly
with defendant No.1 in the suit premises. Though there is dispute
between plaintiff and defendant No.1 and the proceeding under
Protection of Women From Domestic Violence Act is filed by defendant
No.1, but the letter dated 21.04.2016 filed by plaintiff shows that
defendant No.1 was threatening to dispossess the plaintiff. Hence,
balance of convenience lies in favour of plaintiff. If interim relief as
sought by plaintiff is not granted, there is likelihood of dispossession of
plaintiff from the suit premises and he will suffer irreparable loss.
Hence, I hold that plaintiff is entitled for interim relief in terms of
prayer clauses(a) and (b) of the Notice of Motion.
11. So far as prayer clause(c) is concerned, learned Adv. Shri.
Redekar for plaintiff submitted that, process of redevelopment is at
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initial stage and society of the building of suit premises has not yet
finalized offer of redevelopment. In view of this submission, relief set
out in prayer clause(c) cannot be granted at this stage. Accordingly, I
answer point No.1 to 3 in the affirmative. Notice of Motion deserves to
be partly allowed. In answer to point No.4, I pass following order:
ORDER
1. Notice of Motion No. 3521/2019 in Suit No.2130/2019 is
partly allowed in terms of prayer clauses(a) and (b).
2. Defendant No.1 is hereby temporarily restrained from
dispossessing the plaintiff from the suit premises and creating
third party interest in the suit premises till disposal of suit.
3. Relief in terms of prayer clause(c) is rejected.
4. Notice of Motion No. 3521/2019 is accordingly disposed of.
(N.G. Shukla)
Judge
City Civil Court,
Date : 17.01.2024 Gr. Bombay.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18012024 4.07 p.m. Mrs. Shravanti Karre
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.29).
Date of Pronouncement of Judgment/Order 17012024
Judgment/Order signed by P.O. on 18012024
Judgment/Order uploaded on 18012024
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