Interim Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 1200191 DV 2021 Sabina Vs Feroz & Ors.
CNR-MHMM18-005654-2021
COMMON ORDER BELOW EXH.1 AND EXH.3
(For ex parte interim reliefs)
1. The main application, Exh.1, is filed under Section 12 of Protection
of Women from Domestic Violence Act, 2005, hereinafter referred as D.
V. Act, for short. In the main application the applicant sought various
reliefs under Sections 17 to 20 and 22 of the said Act. The applicant also
filed separate application, Exh.3, under Section 23 of this Act and sought
same reliefs in the form of interim and ex parte, mentioned in the prayer
clause of the main application, Exh.1.
2. Perused record. Heard Ld. Advocate for the applicant at length.
3. It is the case of the applicant that in the year 2007, she entered into
contract of marriage with late Mr. Yusuf Lakdawala, a builder by
profession, on definite understanding, agreement and assurance that after
marriage she will own all his estates, properties, assets, as a co-owner
having equal rights. It is also agreed that the documentation will be done
in due course of time. The marriage smoothly continued upto September,
2021, till death of Mr. Yusuf Lakdawala. The relations amongst applicant
and her husband were cordial. But, relations amongst applicant and other
family members of Mr. Yusuf Lakdawala were not good on account of
influence of one of the respondent, Respondent No.2, Mr. Noori
Lakdawala. All his family members/Respondent Nos.1 to 7, were aware
of the understanding entered into by applicant and late Mr. Yusuf
Lakdawala at the time of marriage to the effect that applicant will have
equal rights as co-owner in capacity of wife and they are bound to
effectuate the documentation. But, after the death of Mr. Yusuf
Lakdawala, respondents avoided to do so and started harassing the
applicant. With an intention to remove her from matrimonial house they
lodged false offence against her. Applicant approached Civil Court and
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C. C. No. 1200191 DV 2021 Sabina Vs Feroz & Ors.
CNR-MHMM18-005654-2021
sought various equitable reliefs. She also sought quashing of First
Information Report lodged against her and filed Criminal Writ Petition
No.2454 of 2021, in the High Court. There she claimed certain reliefs
regarding directions not to obstruct her entry or permit her to enter in the
shared household. But as the said relief was beyond the scope of petition
filed, she approached this court and filed both these applications, on the
basis of following observations, made in the said writ petition.
Per Hon'ble Justice Shri Sarang Kothwal -
“2. The learned counsel for the Petitioner makes a grievance that
inspite of the fact that the Petitioner is entitled to reside at her residence, she is
not being permitted by Respondents Nos.5 to 10. The learned counsel for the
Respondents Nos.5 to 10 controverts this position. The direction to the
Respondents Nos.5 to 10 not obstruct the Petitioner's entry or permit the
Petitioner to enter in the house is beyond the scope of this Petition. The learned
counsel for the Petitioner states that the Petitioner will approach the concerned
competent Court for that purpose. The same will be considered on its own
merits”.
4. Later on again applicant approached High Court and it is directed
to this court that, this court shall pass order on or before 10th of
November, 2021, on merits by making following observations.
Per Hon'ble Justice Shri S. J. Kathawalla -
“In view thereof, we request the Learned Magistrate to pass the order
in the matter filed by the Petitioner and heard by him on 26th October, 2021 on
or before 10th November, 2021, strictly on merits”.
5. Accordingly, heard Ld. Advocate for the applicant. His submissions
are in tune with the contents of the application and affidavit in support of
it. He also relied on various documents. There is no need of its repetition.
6. The applicant contended that she has been drove out of her house
by filing false case against her. Therefore, she approached other courts
and also Civil Court for declaration of her rights, wherein she also filed
notice of motion and claimed almost same reliefs as claimed in this
application. Then she approached this court and filed the present
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C. C. No. 1200191 DV 2021 Sabina Vs Feroz & Ors.
CNR-MHMM18-005654-2021
application and sought those reliefs as interim relief and that too ex parte,
in absence of respondents without hearing them.
7. If we perused relief clause, it shows that applicant claimed
protection order, possession and enjoyment of part of house, restoration of
possession of various articles of high value including various vehicles,
arrears of rent, monthly maintenance, compensation against main
respondent, furnishing of statements of accounts of various companies. In
addition to that applicant also sought direction regarding registration of
offence and initiation of investigation against police machinery
investigating her matter, etc.
8. The nature of these interim ex parte reliefs sought by the applicants
is such that they will have effect of granting final reliefs. Further, if those
reliefs granted, there will be serious implications and repercussions on the
interest of other side. The reliefs sought are mainly civil in nature, in
respect of which the applicant already approached Civil Court. Law is
well settled on certain aspects that interim reliefs having an effect of
granting final reliefs can not be granted. No relief can be granted without
hearing other side unless case of extreme urgency made out to meet the
ends of justice or prevent abuse of process of law.
9. The present proceeding initiated is of summary criminal nature to
be decided only on the basis of affidavits. The above discussed factual
and legal aspects of the reliefs claimed clearly reflect that applicant has
not made out any case of extreme urgency on the basis of which such ex
parte reliefs without hearing other side can be granted. As stated above
allowing prayer may have serious consequences and respondent may
suffer. Therefore, I am of the opinion that it is necessary to hear other side
before allowing the prayer for interim reliefs. It is necessary that other
side shall be heard. Without hearing other side granting such reliefs
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CNR-MHMM18-005654-2021
having serious implications may have effect of violation of principles of
natural justice.
10. As stated above and as admitted by applicant herself she has
already approached Civil Court for the same reliefs. It is not clarified at
what stage the said civil matter is pending. Granting same reliefs by this
court means increasing possibility of conflicting decisions on the same
points. For avoiding this fact also the other side needs to be heard.
11. In addition to these legal aspects in the Writ Petition No.2454 of
2021, it is specifically directed that order shall be strictly made on merits,
by making following observations :
Per Hon'ble Justice Shri S. J. Kathawalla -
“In view thereof, we request the Learned Magistrate to pass the order
in the matter filed by the Petitioner and heard by him on 26th October, 2021 on
or before 10th November, 2021, strictly on merits”.
12. In view of above observations I am of the opinion that before
passing any order against respondents it is necessary to hear them. The
order granting interim reliefs can not be passed ex parte. Therefore,
following order :
ORDER
a. Application for passing ex parte reliefs, Exh.3, is rejected.
b. Issue notice to respondents as to why the interim reliefs prayed for
shall not be granted against them, r/o.15.11.2021.
c. Hamdast and service of notice through police machinery allowed.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 10.11.2021 M.M., 12TH COURT, BANDRA, MUMBAI
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