Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4854-19 and NM 526-20 in SU 3051-19
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.4854 OF 2019
(CNR No.MHCC01-013247-2019)
AND
NOTICE OF MOTION NO.526 OF 2020
(CNR No.MHCC01-001354-2020)
IN
SUIT NO.3051 OF 2019.
(CNR No.MHCC01-011822-2019)
Shaheda Khatoon w/o Afaq Hussain Shaikh }...PLAINTIFF.
Versus
1.Fayaz S/o. Afaq Hussain Shaikh }
2.Zeba Fayaz Hussain Shaikh }...DEFENDANTS.
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Shri.Khan Javed Akhtar, learned advocate for the plaintiff.
Shri.Altaf Khan, learned advocate for the defendants.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 08/07/2021)
1. By filing Notice of Motion No.4854 of 2019, plaintiff has
claimed reliefs as under;
a. That this Hon’ble Court be pleased to grant the mandatory
order and injunction directing the defendants to remove
themselves and then belongings from the suit premises i.e., room
admeasuring about 350 sq. ft. (approx) demarcated in red ink as
particularly described in plan annexed herewith as Exhibit G
situated on the third floor building known as Badri Building, 291,
Nagevi Street, Mumbai-400 003.
b. That this Hon’ble Court be pleased to grant the temporary
injunction restraining the defendants, their servants, agents, from
entering into or resting in the suit premises and/or interfering
and/or disturbing the plaintiff peaceful use, occupation and
possession of the suit premises i.e., room admeasuring about 350
sq. ft.(approx) demarcated in red ink as particularly described in
plan annexed herewith as Exhibit G situated on the third floor
building known as Badri Building, 291, Nagdevi Street, Mumbai-
400 003.
c. That this Hon’ble Court be pleased to grant temporary
injunction restraining the defendants, their servants, agents from
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entering into or resting in the suit premises and/or interfering
and/or disturbing the plaintiff peaceful use, occupation and
possession of the said premises i.e., premises situated on the third
floor building known as Badri Building, 291, Nagdevi Street,
Mumbai- 400 003.
By filing Notice of Motion No. 526 of 2020, plaintiff has
claimed relief as under;
a. That this Hon’ble Court be pleased to grant the temporary
injunction restraining the defendants, their servants, family
members, agents, from disturbing the plaintiff peaceful use,
occupation and possession of the said premises i.e., premises
situated on the third floor building known as Badri Building, 291,
Nagdevi Street, Mumbai-400 003.
2. Read the affidavits and additional affidavits filed in support
of those Notice of Motion by the plaintiff and affidavits-in-reply filed by
the defendants. Heard learned Shri.Khan Javed Akhtar advocate for the
plaintiff and learned Shri.Altaf Khan advocate for the defendants.
Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiff? ...No.
ii) Whether balance of convenience lies in her
favour? ...No.
iii) Whether irreparable loss will cause to the
plaintiff if injunctions as prayed are not
granted? ...No.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that plaintiff is entitled for tenancy
rights in 1st & 3rd Floor premises (those premises are referred to as the
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said premises) of Badri Building being the sole surviving heir of her
father who expired in year 1989. He argued that defendant No.1 is son
of plaintiff, defendant No.1 got married to defendant No.2 on
25/11/2018 and on request of the defendants, plaintiff has given one
room on 3rd Floor premises (said room is referred to as suit premises) to
the defendants for temporary stay. He argued that defendant No.2 has
lodged report against defendant No.1 and plaintiff on account the
disputes arisen between the defendants
interse. He argued that plaintiff
& her husband are senior citizens, they are on medication as they are
suffering from various ailments, both the defendants are always causing
nuisance to the plaintiff & her husband, defendant No.2 had assaulted
the plaintiff and caused injuries to her in respect of which, plaintiff has
filed a report with the police. He argued that defendants have no rights,
title & interests in the said premises & suit premises, plaintiff does not
want complications in her life, plaintiff is under constant fear that
defendant No.2 may implicate her in false cases because of which,
plaintiff does not desire that defendants shall stay in the suit premises.
He argued that plaintiff & her husband have every right to stay in their
own property peacefully without interference and disturbance of the
defendants, it is impossible for them to survive under constant fear and
their healths are getting deteriorated day-by- day because of which, it is
necessary to grant mandatory injunction and temporary injunctions as
prayed for in favour of the plaintiff. In support of his argument, learned
advocate for plaintiff has placed reliance on the following authorities.
i)
PC Order dtd.24/04/2012 of
Hon’ble Bombay High Court in
Appeal
From Order No.387 of 2012 (Neelam Chirag Khirani Vs. Shantilal
Devshi Khirani and Ors.),
ii)
Judgment dtd.16/02/2017 of Hon’ble Delhi High Court in
RSA
27/2017 (Kanhaiya Lal and Anr. Vs. Nathi Lal).
I have gone through those authorities.
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5. As against this, learned advocate for the defendants argued
that even though plaintiff is the only survivor of her father, she is not
solely and absolutely entitled for tenancy rights in respect of the said
premises. He argued that defendant No.1 is residing in the said premises
since his birth and since the lifetime of the father of the plaintiff despite
it, plaintiff has falsely contended that she has given one room inside 3rd
floor premises for temporary use to the defendants on 25/11/2018 and
they were having no accommodation. He argued that suit premises is
matrimonial home of defendant No.2, all the allegations raised by the
plaintiff in the plaint and affidavit filed in support of Notice of Motion
are false, plaintiff has caused domestic violence to defendant No.2 in
respect of which, all the details are given in the written statement,
defendant No.2 has lodged report against the plaintiff on 26/11/2019
in respect of the domestic violence but any action is not taken by the
police. He argued that plaintiff is seeking final relief at interim stage
which cannot be granted hence, both the Notice of Motion are liable to
be dismissed. In support of his argument, learned advocate for the
defendants has placed reliance on the law laid down by Hon'ble Apex
Court in a case of
S.Vanitha Vs. Deputy Commissioner reported in
2020
SCC OnLine SC 1023. I have gone through said authority.
6. It is not in dispute that defendant No.1 is the son of the
plaintiff. Admittedly, defendant No.1 got married to defendant No.2 on
25/11/2018. Plaintiff has produced copies of complaints lodged by her
with the police against the defendants. Defendants have also produced
copies of complaints lodged by them against the plaintiff. It appears
from the material produced on record by both the parties that they are
not maintaining good relations
interse and disputes amongst them have
reached to the police station.
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7. It is true that son has no legal rights to live in the house of
the parents and he can live in the house of the parents only at the
mercy of the parents up to the time the parents allow. It is also well
settled that merely because the parents have allowed the son to live in
the house so long as his relations with the parents were cordial, it does
not mean that the parents have to bear his burden throughout his life.
In other words, it may be stated that mere long possession in the self
acquired & absolute property of the parents does not create any rights
in favour of their son. Thus, crucial aspect for consideration is whether
the material available on record is
prima facie sufficient for accepting
that the said premises is self acquired/absolute property of plaintiff?
8. Plaintiff has contended that her father was the tenant in
respect of the said premises. Her said contention is supported by copy of
rent receipt produced on record by her. Plaintiff has contended that she
is sole surviving heir of her father and she is entitled for tenancy rights
in the said premises. Defendants have denied the contention of the
plaintiff that she is solely and absolutely entitled for tenancy rights in
the said premises. Plaintiff has simply produced copy of the rent receipt
standing in the name of her father. She has not produced any rent
receipt issued in her name by the landlord in respect of the said
premises after the death of her father. She has produced copies of
electricity bill, Election ID Card, gas receipts & Passport standing in her
name on the address of the said premises. Those copies are
prima facie
sufficient for accepting plaintiff's possession over the said premises.
9. Defendants have also produced copies of documents viz.
copies of PAN Card, Passport, Driving License etc standing in the name
of defendant No.1 on the address of the said premises. All those
documents show that defendant No.1 is residing in the said premises
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since prior to his getting married to defendant No.2 on 25/11/2018.
Defendants have also produced copies of two telephone bills standing in
the name of defendant No.1 on the address of third floor premises. One
of those bills is of year 2013 and the other is of year 2019. Plaintiff has
also produced copy of one telephone bill standing in the name of her
husband but said bill is of year 2009. Plaintiff has not disputed the
genuineness of the telephone bills standing in the name of defendant
No.1. It is the own contention of the plaintiff that defendants are
staying in one room (suit premises) on the third floor of the said
premises. Considering it and the copies of telephone bills produced by
the defendants, this court is of the opinion that there is a triable issue as
regards the acquisition of absolute tenancy rights by the plaintiff in
respect of the said premises and that issue will have to be decided by
giving opportunities of adducing evidence to both the parties. In a case
of
Kanhaiya Lal and Anr. Vs. Nathi Lal cited above on which reliance is
placed by learned advocate for the plaintiff, it was found that on merits
of the suit that the suit property in the said matter was self acquired
property of the father and hence, said authority is not helpful to the
plaintiff at this stage of the proceeding.
10. So far as defendant No.2 is concerned, she is daughter-in-
law of the plaintiff. Material available on record
prima-facie suggests
that defendant No.2 is staying in the suit premises since she got married
to defendant No.1. In a case of
Kanhaiya Lal Vs. Nathi Lal cited above
on which reliance is placed by learned advocate for the plaintiff,
Hon’ble Delhi High Court has placed reliance on the Law laid down by
Hon’ble Supreme Court in a case of
S.R.Batra Vs. Taruna Batra reported
in
(2007)3 SCC 169 for upholding the view of the trial court that
daughter-in-law in law cannot claim any right in an accommodation
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which belongs to mother-in-law or the father-in-law as such
accommodation does not satisfy the test of shared household
accommodation as envisaged under Section 2(s) of the Domestic
Violence Act, 2005.
11. In a case of
S.Vanitha Vs. Deputy Commissioner cited
above, Hon'ble Supreme Court has referred the law laid down in a case
of
Satish Ahuja Vs. Sneha reported in
(2021)1 SCC 414 wherein,
Hon’ble Supreme Court has held that the shared household belongs to
any relative of the husband with whom in a domestic relationship the
woman has lived, the conditions mentioned in Section 2(c) of Domestic
Violence Act are satisfied and the said house will become a shared
household. Hon'ble Supreme Court is further pleased to hold that the
interpretation of definition of
shared household in a case of
S.R.Batra
Vs. Taruna Batra is not correct interpretation and it does not lay down
the correct law. In a case of
S. Vanitha… cited above, while setting aside
the orders for directing the daughter-in-law to vacate the suit premises,
Hon’ble Apex Court has held that the claim of daughter-in-law that the
premises constitute a shared household within the meaning of PWDV
Act 2005 would have to be determined by the appropriate forum and
the claim cannot simply be obviated by evicting the daughter-in-law in
exercise of summary powers entrusted by the Senior Citizens Act 2017.
In view of the law laid down by Hon'ble Apex Court, this court is of the
opinion that the rival contentions raised by the parties will have to be
decided by framing appropriate issues and by giving opportunities of
leading evidence to both the parties. So far as the PC Order in a case of
Neelam Chirag Khirani Vs. Shantilal Devshi Khirani cited above on
which reliance is placed by learned advocate for the plaintiff is
concerned, said PC Order was passed by consent of the parties in the
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said matter.
12. As mentioned earlier, both parties have made allegations
against each other. Defendant No.2 has alleged that domestic violence is
caused to her. Both the parties have produced documents which show
that disputes between them have reached to the police station. Plaintiff
has produced copy of injury certificate issued by G. T. Hospital about
taking treatment by her on 26.06.2019. The Medical Officer has noted
in the history that plaintiff was assaulted by one known female by
hands over chest and back on 21.06.2019 at the Crawford Market. It is
nowhere mentioned in the said injury certificate that assault was made
by defendant No.2. Likewise, the assault was allegedly made at
Crawford Market and not at the said premises or the suit premises.
13. Defendants have also produced one injury certificate issued
by G.T. Hospital wherein, the medical officer has noted the history of
domestic violence with assault on abdomen. The copy of USG pelvis
report dated 17.12.2019 produced by the defendants shows that
defendant No.2 was pregnant. The injury certificate is in respect of the
examination of defendant No.2 at G.T. Hospital on 10.12.2019.
Defendant No.2 has contended that she does not have any dispute with
her husband – defendant No.1. Apparently, the contentions raised by
the defendants are
prima-facie supported by the medical papers as
mentioned above.
14. Though, the son cannot claim independent rights in the
property owned by the parents & there is nothing wrong if the parents
feel at their old ages that they should reside in their absolute property
peacefully without any harassment and trouble, as mentioned earlier,
defendants have denied that plaintiff is entitled for exclusive & absolute
tenancy rights in the said premises so also, plaintiff has not produced
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rent receipt issued in her name by the landlord after the death of her
father due to which, there is a triable issue as regards acquisition of
absolute tenancy rights by the plaintiff in respect of the said premises
and that issue will have to be decided by giving opportunities of
adducing evidence to both the parties. Likewise, it is the contention of
the defendants that the said premises is matrimonial home of defendant
No.2. Suit premises is situated on 3rd floor of the said premises and it is
part of the said premises. It does not appear from the averments of the
plaint that defendants have ever attempted to disturb plaintiff's use and
occupation of the first floor premises. For all these reasons, this court is
of the opinion that neither
prima facie case nor balance of convenience
do lie in favour of the plaintiff. In the result, there is no question of
causing any irreparable loss to the plaintiff if temporary injunctions as
prayed by her are not granted in her favour and hence, by recording my
findings on Point Nos.(i) to (iii) accordingly, I pass the following order.
O R D E R
Notice of Motion No.4854 of 2019 and Notice of Motion
No. 526 of 2020 are dismissed.
Costs in the main cause.
Date : 08/07/2021. (P.P.RAJVAIDYA)
Dictated on : 08/07/2021. Judge, C.R.No.62,
Checked on : 10/07/2021. City Civil Court,
Signed on : 10/07/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
14.07.2021 at 1.08 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 08/07/2021.
Order signed by P.O. on 10/07/2021.
Order uploaded on 14/07/2021.
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