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Mr. Shamshad Mehboob Ali vs Mrs. Shakila W/O. Shamshad Ali on 3 April, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO. 13 OF 2017
WITH
CIVIL APPLICATION NO. 16 OF 2017
IN
APPEAL FROM ORDER NO. 13 OF 2017

Mr. Shamshad Mehboob Ali Anr. .. Appellants
vs.
Mr. Mohamed Mehboob Ali Anr. .. Respondents

WITH
WRIT PETITION NO. 13712 OF 2016

Mr. Shamshad Mehboob Ali Anr. .. Petitioners
vs.
Mr. Mohamed Mehboob Ali Anr. .. Respondents

Mr. P. J. Thorat with Ms Yogita Deshmukh for Appellants in AO and
for Petitioners in WP.
Mr. Dinesh Tiwari with Mr. S. Ambre i/b. Dinesh Tiwari Associates
for Respondents.

CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 22 March 2017
Date of Pronouncing the Judgment : 03 April 2017

COMMON JUDGMENT :-

1] Heard learned counsel for the parties. They agree that the
Appeal from Order and the Writ Petition can be disposed of by a
common order.

2] The challenge in the Appeal is to the order dated 29 August
2016, by which, the learned Trial Judge has directed the appellants
(defendants) to remove themselves and to refrain from entering
into the suit premises pending disposal of the suit. In the Writ

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Petition, the challenge is to the order dated 29 August 2016, by
which, the learned Trial Judge has dismissed the appellants’ notice
of motion for framing of preliminary issue under section 9A of the
CPC.

3] Mr. Thorat, learned counsel for the appellants – petitioners
has submitted that the suit as instituted by the respondents was not
maintainable as the reliefs in the plaint were undervalued. Mr.
Thorat also submits that the suit was basically to seek eviction of
gratuitous licensees and therefore, under the provisions of the
Presidency Small Causes Court Act, 1882, such a suit was not
maintainable before the City Civil Court, Mumbai, but, ought to have
been filed before the Small Causes Court in Mumbai. Mr. Thorat
submits that the moment the defendants raised preliminary
objections to the maintainability of the suit at the time of hearing of
an application for interim relief, the learned Trial Judge had no
option but to frame such preliminary issue and thereafter decide
whether it has jurisdiction in the matter. Mr. Thorat has placed
reliance upon the decisions in case of Foreshore Co-operative
Housing Society Limited vs. Praveen D. Desai (Dead
) through
L.Rs. Ors.1, Prabhudas Damodar Kotecha Anr. vs.
Manharbala Jeram Damodar Ors
.2 and John Francis Anthony
Gonsalves Anr. vs. Colin M. Rebello
3, in support of his
submissions.

4] In the Appeal from Order, Mr. Thorat submits that the learned
Trial Judge has virtually granted a mandatory injunction at the
interim stage without adverting to the principles set out in the case
of Dorab Cawasji Warden vs. Coomi Sorab Warden Ors.4 Mr.
1 AIR 2015 SC 2006
2 2007 (5) Bom. C.R. 1 (Full Bench)
3 2014 (2) ALL MR 651
4 AIR 1990 SC 867

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Thorat submits that although the suit premises may have been in
the name of the respondents who are the parents / parents-in-law of
the appellants, nevertheless, it is the appellant no. 1 who is the
owner of the suit premises, since, the suit premises have been
purchased from the funds provided for by the appellant no. 1, who is
presently a Captain in the Merchant Navy. Mr. Thorat submits that
the impugned order is vulnerable because the learned Trial Judge
lacked jurisdiction over the subject matter of the suit. The suit was
clearly undervalued and in any case, since the suit was between a
licensor and the licensee, section 41 of the Presidency Small
Causes Court Act, 1882 barred institution of such a suit before the
City Civil Court. Strong reliance was placed upon the decisions of
the Full Bench in the case of Prabhudas Kotecha (supra) and John
Gonsalves (supra). Mr. Thorat also submitted that the other siblings
of appellant no. 1 were behind this litigation and therefore, the
stories of alleged harassment by the appellants to the respondents
have been concocted in the matter. For all these reasons, Mr.
Thorat submits that the impugned order warrants interference.

5] Mr. Dinesh Tiwari, learned counsel for the respondents
submits that the suit premises is owned and was purchased by the
respondents, at the stage when the appellant no. 1 was hardly 14
years of age. The appellants have approached the Court with a
patently false case that they are true owners of the suit premises
and such falsity cannot be permitted to prevail. He submits that the
preliminary objections raised by the appellants were entirely
frivolous. This is a case of a suit seeking injunction simplicitor and
therefore, the provisions of section 41 of the Presidency Small
Causes Court, are not at all attracted. Besides, the appellants
themselves claim to be owners of the suit premises and therefore,
are disentitled to question the jurisdiction of the City Civil Court

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upon the ground urged. He submits that there is absolutely no
infirmity in the valuation of the suit. He submits that the appellants
have their own plush apartment. The appellant no. 1 who is a
Captain in the Merchant Navy is, on most occasions, travelling. In
such circumstances, there is no question of his wife insisting upon
entering the suit premises. He points out that there have been
several unfortunate and ugly incidents and the appellant no.2 i.e.
wife of the appellant no. 1 has also gone to the extent of making
false and frivolous allegations and police complaints against the
respondent no. 1 who is an aged person. Mr. Tiwari submits that the
learned Trial Judge has applied the correct principles and the
impugned orders therefore warrant no interference in Appeal as
well as in the Writ Petition.

6] Rival contentions now fall for determination.

7] In this case, the material on record overwhelmingly
establishes that it is the respondents – plaintiffs who are the owners
of the suit flat no. A-1/32, Asmita Jyoti Society, Near Fire Brigade,
Malwani, Malad (West), Mumbai.

8] There is material on record which establishes that in the year
1985 or thereabouts, the Collector of Mumbai allotted a plot of land
at Malwani, Malad, for constructing housing accommodation for
retired Navy Officers. The respondent no. 1, was admittedly, a petty
officer in the Indian Navy and had retired in the year 1976 or
thereabouts. He was enrolled as a member of the society formed for
the purposes of constructing housing accommodation upon the said
plot. There is record which establishes that the respondent no.1
made payments to the society in instalments from 1985 to 1996.
The possession of the suit flat in the building constructed upon such

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plot was allotted to the respondent no.1 in the year 1996. Asmita
Jyoti Society (Society) issued a formal share certificate and
possession certificate in the name of the respondent no.1 in the
year 1996 and 1998 respectively. This means that the respondent
no. 1 has made out more than a prima facie case to establish his
exclusive ownership in respect of the suit flat.

9] In contrast, the appellant no.1 who is the son of respondent
no. 1, has made a very bald claim that the suit flat was acquired by
the respondent no. 1 through the funds of appellant no. 1 and
therefore, in effect, it is the appellant no.1 who is the owner of the
suit flat. Apart from the legal tenability of such a plea, it is to be
noted that in the year 1985, when the plot was allotted to the
Officers of the Navy and some payments were made in respect of
such allotment, the appellant no. 1 was 14 years old. Similarly, in
the year 1996 when, the actual possession of the suit flat was
allotted to the respondent no. 1, appellant no. 1 was 24 years old.
There is absolutely no material produced on record by appellant
no.1 that appellant no. 1 had any source of income, in order to
finance the acquisition of the suit flat since the age of 14 years or at
least between the ages of 14 to 24 years. Significantly, apart from
brazenly asserting that he is the owner of the suit flat, appellant no.
1, has neither instituted any counter claim in the present suit nor
has he instituted any other proceedings to seek any declaration of
ownership in respect of the suit flat. From this, it is quite clear that
the appellants, had raised a patently false and a frivolous defence
claiming ownership in respect of the suit flat. In contract, as noted
earlier, there is overwhelming material on record which establishes
that it is the respondent no.1 who is the exclusive owner of the suit
flat.

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        10]     In Gujarat Bottling Co. Ltd.  Ors. vs. Coca Cola Co. 
        Ors.5, the Hon'ble Supreme      Court has held that the exercise of
        jurisdiction under Order XXXIX         of CPC is equitable and

discretionary. The Court, on being approached, will, apart from other
considerations, also look to the conduct of the party invoking
jurisdiction of the Court and may refuse to interfere unless his
conduct was free from blame. Since the relief is wholly equitable in
nature, the party invoking the jurisdiction of the Court has to show
that he himself was not at fault and that he himself was not
responsible for brining about the state of things complained of and
that he was not unfair or inequitable in his dealings with the party
against whom he was seeking relief. His conduct should be fair and
honest. The Hon’ble Supreme Court has also observed :

“These considerations will arise not only in respect of
the person who seeks an order of injunction under Order
39 Rule 1 or Rule 2 of the Code of Civil Procedure, but
also in respect of the party approaching the Court for
vacating the ad interim or temporary injunction order
already granted in the pending suit or proceedings.”

11] In this case, the claim of the appellants that they are the
actual owners of the suit flat is found to be false and frivolous.
Primarily, it is on basis of this claim that the appellants seek
interference with the interim order already granted by the learned
Trial Judge. In such a situation, the observations made by the
Hon’ble Supreme Court in the case of Gujarat Bottling (supra) are
required to be considered. The conduct of the appellants cannot be
said to be either fair or equitable in the facts and circumstances of
the present case.


        12]     In Maria Margarida Sequeira Fernandes  Ors. vs.


5 (1995) 5 SCC 544

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Erasmo Jack De Sequeira (Dead) through LRS.6, the Hon’ble
Apex Court has held that false claims and false defences ought not
to be tolerated. Further, grant of refusal of injunction in a civil court,
being one of the most important stages in the civil trial, due care,
caution, diligence and attention must be bestowed whilst granting or
refusing injunctions. The observations in paragraphs 81 to 86, read
as under :

“81. False claims and defences are really serious problems
with real estate litigation, predominantly because of ever
escalating prices of the real estate. Litigation pertaining to
valuable real estate properties is dragged on by unscrupulous
litigants in the hope that the other party will tire out and
ultimately would settle with them by paying a huge amount.
This happens because of the enormous delay in adjudication
of cases in our Courts. If pragmatic approach is adopted, then
this problem can be minimized to a large extent.

82. This Court in a recent judgment in Ramrameshwari Devi
and Ors. (supra) aptly observed at page 266 that unless
wrongdoers are denied profit from frivolous litigation, it would
be difficult to prevent it. In order to curb uncalled for and
frivolous litigation, the Courts have to ensure that there is no
incentive or motive for uncalled for litigation. It is a matter of
common experience that Court’s otherwise scarce time is
consumed or more appropriately, wasted in a large number of
uncalled for cases. In this very judgment, the Court provided
that this problem can be solved or at least be minimized if
exemplary cost is imposed for instituting frivolous litigation.
The Court observed at pages 267-268 that imposition of
actual, realistic or proper costs and/or ordering prosecution in
appropriate cases would go a long way in controlling the
tendency of introducing false pleadings and forged and
fabricated documents by the litigants. Imposition of heavy
costs would also control unnecessary adjournments by the
parties. In appropriate cases, the Courts may consider
ordering prosecution otherwise it may not be possible to
maintain purity and sanctity of judicial proceedings.

Grant or refusal of an injunction

83. Grant or refusal of an injunction in a civil suit is the most

6 (2012) 5 SCC 370

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important stage in the civil trial. Due care, caution, diligence
and attention must be bestowed by the judicial officers and
judges while granting or refusing injunction. In most cases, the
fate of the case is decided by grant or refusal of an injunction.
Experience has shown that once an injunction is granted,
getting it vacated would become a nightmare for the
Defendant. In order to grant or refuse injunction, the judicial
officer or the judge must carefully examine the entire
pleadings and documents with utmost care and seriousness.

84. The safe and better course is to give short notice on
injunction application and pass an appropriate order after
hearing both the sides. In case of grave urgency, if it becomes
imperative to grant an ex-parte ad interim injunction, it should
be granted for a specified period, such as, for two weeks. In
those cases, the Plaintiff will have no inherent interest in
delaying disposal of injunction application after obtaining an
ex-parte ad interim injunction.

85. The Court, in order to avoid abuse of the process of law
may also record in the injunction order that if the suit is
eventually dismissed, the Plaintiff undertakes to pay
restitution, actual or realistic costs. While passing the order,
the Court must take into consideration the pragmatic realities
and pass proper order for mesne profits. The Court must
make serious endeavour to ensure that even-handed justice is
given to both the parties.

86. Ordinarily, three main principles govern the grant or
refusal of injunction.

a) prima facie case;

b) balance of convenience; and

c) irreparable injury, which guide the Court in this regard.
In the broad category of prima facie case, it is imperative for
the Court to carefully analyse the pleadings and the
documents on record and only on that basis the Court must be
governed by the prima facie case. In grant and refusal of
injunction, pleadings and documents play vital role.”

13] In this case, there is material on record that the appellant no.
1 is a Captain in the Merchant Navy and on account of his
employment, is required to remain at sea for most part of the year.

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It is the appellant no. 2 i.e. wife of the appellant no. 1 along with the
daughter, who mostly stays in the suit flat along with the
respondents. There is material on record which establishes that the
relationship between the respondents and their daughter-in-law i.e.
appellant no. 2 is quite strained. The appellant no. 2 has installed
CCTV Cameras in the suit flat as also, certain other Spy devices,
rendering it impossible for the aged respondents to live with dignity
in their own home. As if this was not sufficient, appellant no. 2 has
filed complaints to the police authorities making several allegations
against the father-in-law i.e. respondent no. 1. The appellant no. 2
has also filed a complaint invoking provisions of section 498A and
323 of the IPC, against the aged respondents. This is not the
occasion to decide as to whether there is any truth in such
complaints and counter complaints or not. However, if such
circumstances are taken into consideration, it cannot be said that
the discretion has been exercised unreasonably by the learned trial
Judge.

14] It is also not a case where the appellants face prospect of
being thrown out on the streets, in case, they are restrained from
entering the suit flat. There is material on record that the appellant
earns substantially as a Captain in the Merchant Navy. There is
material on record that the appellants have plush and furnished
apartments elsewhere. There is also the issue raised about the
schooling of the appellants’ children. The balance of convenience
in such a situation, is also in favour of the respondents. At this
stage, they are surely entitled to live in their home free from all such
disturbances.


        15]     It appears that the real apprehension of the appellants is that
        the other siblings might acquire or use the suit flat.                  Learned

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counsel for the respondents has stated that it is only the
respondents, who will reside in the suit flat and further, the
respondents do not even have any intention to alienate or transfer
possession of the suit flats, they are living. In so far as the
schooling of the daughter is concerned, in the course of arguments,
it transpired that the examinations would conclude by the end of
April 2017. In any case, the appellants certainly have both the
physical as well as the economic means to stay in their own
apartments and continue with the schooling of their daughter.

16] In S. R. Batra Anr. vs. Smt. Taruna Batra 7, the Hon’ble
Supreme Court has held that the daughter-in-law, cannot, as a
matter of right, insist upon staying in the house of her parents-in-
law, particularly when the house is entirely and exclusively owned
by the parents-in-law and even her husband, has no right or title to
the same. To the same effect, is the decision of this Court in the
case of Bharti Rajesh Bhave vs. Vijay Shankar Bhave Ors.8 an
order quite similar to the impugned order in the present case, was
upheld by this Court.

17] In Sudha Mishra vs. Surya Chandra Mishra9, learned
Single Judge of the Delhi High Court has held that daughter-in-law
has no right to continue to occupy self-acquired property of her
parents-in-law against their wishes more so when her husband has
no independent right therein nor is living there.

18] In this case, the respondents – plaintiffs have definitely made
out a strong case, which is of a higher standard than a prima facie
case, which is normally required for a prohibitory injunction. This is

7 2006 (4) Crimes 433 (SC)
8 Appeal from Order (St.) No. 31217 of 2015 @ Civil Application No. 31221 of 2015
9 211 (2014) Delhi Law Times 537

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also a case where it is necessary to prevent irreparable and
serious injury to the respondents – plaintiffs. The respondents are
aged persons, already in the evening of their life. To require them at
this stage to stay in their own home under such adverse
circumstances is surely not an equitable situation. The injury which
the respondents will suffer if the impugned order is vacated, is not
compensable in terms of money. In contrast, the appellants, are
financially very well of and even have their own plush apartment to
reside in. The balance of convenience in such a situation is in
favour of sustaining the impugned order than to vacate the same.
This means that the parameters prescribed by the Hon’ble Supreme
Court in the case of Dorab Cawasji Warden (supra) stands
substantially complied with.

19] The decision in the case of Purshottam Vishandas Raheja
Anr. vs. Shrichand Vishandas Raheja (D
) through L.Rs.
Ors.10 is also not applicable in the facts and circumstances of the
present case. When a permanent injunction is applied for,
temporary injunction can also be applied for. If the temporary
injunction is granted, the same, cannot be challenged on the
ground that the trial Judge, has granted the final relief at the interim
stage. In this case, it cannot be said that the exercise of discretion
by the learned trial Judge is either arbitrary, capricious or perverse.
Therefore, applying the principles in Wander Ltd. Anr. vs.
Antox India P. Ltd
.11, which is incidentally been followed in the case
of Purshottam Raheja (supra), there is no case made out to
interfere with the impugned order.

20] The objection on basis of valuation of the plaint was indeed
frivolous and therefore, was rightly rejected by the learned trial
10 2011 (6) SCC 73
11 1990 (Supp) SCC 727

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Judge. This is basically a suit for injunction and the suit, has been
appropriately valued. In the peculiar facts and circumstances of the
present case, it cannot be said that Prabhudas Kotecha (supra)
principle is attracted. The appellants – petitioners, have claimed to
be the owners of the suit flat. The appellants – petitioners cannot
rely upon certain averments in the plaint, wherein, the respondents
have stated that the appellants, being family members were also
permitted to stay along with them in the suit flat. If ultimately, a
preliminary issue is framed as to whether the appellants are
gratuitous licensees in respect of the suit flat, at least the
appellants, will have to stand by their own plea that they are not
gratuitous licensees in respect of the suit flat but they are the
owners of the suit flat. This means that the appellants – petitioners,
on the one hand, claim ownership of the suit flat and on this basis,
resist grant of any interim reliefs as against them. On the other
hands, when it comes to the aspect of jurisdiction, the appellants
seek to place reliance upon certain averments in the plaint and urge
that on basis of such averments, the appellants / petitioners are
gratuitous licensees and therefore, the suit should have been
instituted in the Small Causes Court and not in the City Civil Court.
The appellants / petitioners are obviously interested in approbation
and reprobation. Jurisdiction under Articles 226 and 227 of the
Constitution of India, is also discretionary and to a great extent
equitable. That apart, in this case, the respondents have applied for
relief of injunction against the appellants. If considered from this
perspective, there is really no jurisdictional error in the impugned
order by which the learned Trial Judge has declined to frame any
preliminary issue.

21] For the aforesaid reasons, there is no case made out to
interfere with the impugned orders. The Appeal from Order as well

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as the Writ Petition are liable to be dismissed and are hereby
dismissed. There shall be no order as to costs, since, during the
pendency of these matters, some orders were made with regard to
payments by the appellants to the respondents. The respondents
shall be entitled to retain the amounts which they may have
received under the interim orders of this Court, in these matters.

22] The ad interim orders granted earlier, are hereby vacated.
However, since, it is stated that the appellants’ daughter is
answering her examinations until the end of April 2017, the
respondents may not execute the impugned order until 30 April
2017.

(M. S. SONAK, J.)

23] At this stage, learned counsel for the appellants / petitioners

seeks further continuation of ad-interim relief, since, the appellants /

petitioners, would like to take recourse against this order. Since, the

ad-interim order is already extended upto 30 th April 2017, there is no

reason to grant any further extension.



                                                       (M. S. SONAK, J.)

        Chandka




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