Interim Order 1

Order Details: Order
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61/DV/2018
ORDER BELOW EXH.17
1) The father of applicant namely Vishnu Prasad Gupta has filed
this application U/Sec.23(2) of the Protection of Domestic Violence Act
2005 and prayed to restrain the respondents from
evicting/dispossessing his daughter i.e. the applicant from her
matrimonial house/shared household i.e. Flat No.105, Solitaire1,
building No.2, Poonam Garden Complex, Mira Bhayander Road, Mira
road (E), Dist : Thane. (herein after called “said premises”). It is the
contention of the father of the applicant that the applicant due to
fear/threat not able to come out from the said premises and she has
narrated the facts to him and therefore he has filed this application.
2) Respondents have filed their say at Exh.19 and denied the
contentions made in the application. It is the say of respondents that
said premises is in the name of motherinlaw of the applicant and thus
the applicant has no any right of residents in the said premises. It is
further say of respondents that respondent No.1 never allowed the
applicant to reside in said premises. It is further say of respondents that
the applicant is trespasser in the said premises and therefore, FIR is
lodged against the applicant bearing No.307/2020. Hence prayed to
reject the application.
3) The applicant has filed affidavitinrejoinder at Exh.20 and denied
the contentions made in the say filed by the respondents. The applicant
has filed copy of complaint dated 10.12.2020, copy of complaint dated
13.12.2020 to Mira road police station in respect of cutting of electricity
& copy of agreement for sale of the said premises. On the contrary,
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respondents have filed copy of notice given by police U/Sec.41(a)(1) of
CrPC to the applicant, copy of FIR No.307/2020 & copy of society
maintenance charges.
4) Heard both sides. Perused the contents of application, say filed
by the respondents and the documents filed on record. The father of
applicant in the application in para No.1,2 & 5 submitted that the
applicant is residing in said premises. The father of applicant in the
application in para para No.8,9,10 submitted that the respondents are
trying to dispossess the applicant from the said premises. The contents
of copy of the complaint dated 10.12.2020 filed by the father of
applicant against the respondents shows that it is filed in respect of act
of respondents of dispossessing/removing the applicant from the said
premises. As per order passed below interim application dated
05.10.2018, the respondents are restrained from causing any sort of
domestic violence to the petitioner in any manner. The respondents in
their reply to the main petition filed at Exh.6 in para 7 themselves
submitted that “therefore respondent No.1 and applicant also shifted in
other flat in Mira road and started to matrimonial life”.
5) It is the contention of respondents that the said premises is
owned by motherinlaw of the applicant and therefore, the applicant
has no right to reside in said premises. But the respondents have not
filed any relevant documents to show the ownership of the motherin
law of the applicant over said premises. On the contrary, the document
i.e. Agreement for sale filed by the applicant prima facie shows that said
premises is in the name of respondent No.1 i.e. Husband of the
applicant. Thus, prima facie it appears that the said premises i.e. Flat
No.105, Solitaire1, building No.2, Poonam Garden Complex, Mira
Bhayander Road, Mira road (E), Dist : Thane is matrimonial
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house/shared household of the applicant.
6) Thus considering above discussion prima facie it appears that the
applicant is residing in said premises & the respondents are trying to
dispossess her from said premises, therefore in the interest of justice, it
is necessary to restrain the respondents from evicting/dispossessing the
applicant from said premises till decision of main petition. If the
respondents are not restrained from dispossessing the applicant, she
will suffer irreparable loss. Hence I pass following order :
ORDER
1. Application is allowed.
2. Respondents are hereby restrained from evicting/dispossessing
the applicant from the possession of said premises i.e. matrimonial
house/shared household situated at Flat No.105, Solitaire1, building
No.2, Poonam Garden Complex, Mira Bhayander Road, Mira road (E),
Dist : Thane till decision of main petition.
3. The above observations are preliminary in nature, the same may
change during the final judgment, subject to proposed evidence.
4. Copy of this order be given to the parties free of cost vide Sec.24
of the Protection of Women from Domestic Violence Act.
5. Copy of this order be sent to the Protection Officer and PSO of
concern police station.
Dt. 22.12.2020 (C.P. Kashid)
Metropolitan Magistrate
65th Court, Andheri, Mumbai.
ask
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