1 ao1216 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.1216 OF 2010 Doroty Behram Mehta ...Appellant vs. Mr.Behram Kali Mehta ...Respondent Ms Mamta Sadh i/b Joseph Fernandes for the appellant Mr.S.S.Shreepad Murthy i/b Ms Pinky Bhansali for the respondent CORAM : A.S.OKA,J. DATE : FEBRUARY 21,2011 P.C.: 1 Heard learned counsel for the appellant-plaintiff and the learned counsel for the respondent-defendant. By this appeal from order, the appellant-plaintiff has taken an exception to the Judgment and order dated 16 th August 2010 passed by the trial Court by which relief of temporary injunction has been denied to the appellant. 2 The case of the appellant is that on 19 th January 1981, as per the Indian laws she got married to the respondent. According to the appellant, the marriage was registered as per the laws in U.K as well. The parties have a son by the name Richard. The suit premises is a flat more particularly described in paragraph 3 of the plaint. In paragraph 4 of the plaint it is asserted by the appellant that the parties started residing in the suit premises after their marriage in the year 1981. It is alleged that another residential premises owned by the respondent in building known as Elegant Apartments, Cuffe Parade, Bombay was also one of the residences of the parties. It is pointed out that in the year 2003, there was a decree of divorce passed under the Indian law. It 2 ao1216 is contended that there is no divorce obtained as per the laws in U.K. It is stated that after the divorce, the appellant resided in the premises in Elegant Apartments, Cuffe Parade, Bombay which was given to the appellant by the respondent. On account of financial constraints, the appellant was forced to alienate the said premises. It is stated that thereafter the appellant along with her son shifted to the flat in Colaba Chambers at Colaba, Bombay. It is stated that the appellant had to vacate the said premises in the year 2008. 3 According to the case of the appellant as she had no other premises, she expressed her desire to shift to the suit premises. The respondent consented to that. The reliance is placed on certain documents showing that the appellant is residing in the suit premises. The suit is based on the alleged cause of action which had arisen in September 2009 when according to the appellant the respondent obstructed appellant s ingress and egress in to the suit premises. It is contended that the suit premises is owned by the appellant s mother-in-law who had expressed a wish that the suit flat should be bequethed to the appellant, but before execution of the will, the mother-in-law expired. It is stated that the appellant s belongings are lying in the suit premises. The prayer made by the appellant in the suit is for injunction restraining the defendant from dispossessing the plaintiff from the suit premises and from obstructing the appellant s ingress and egress to the suit premises. A notice of motion was taken out by the appellant for claiming interim relief in terms of the final relief claimed in the suit. The notice of motion has been dismissed by the impugned order. 3 ao1216 4 It must be stated that on the earlier date, a suggestion was made by this Court to settle the dispute amicably. However, the parties could not work out any arrangement. 5 The learned counsel for the appellant submitted that there is more than sufficient evidence on record to show that the appellant was occupying the suit premises on the date of institution of the suit. She submitted that in fact the appellant was protected by ad-interim order of status quo passed by the trial Court. She submitted that on 30th April 2011, the appellant was illegally dispossessed. The learned counsel submitted that as the marriage between the appellant and the respondent was registered under the laws of U.K and as admittedly there is no divorce granted as per the laws of U.K, the appellant is entitled to occupy the suit premises which is the property of the respondent. The learned counsel submitted that as the marriage is in subsistence, status quo as prevailing on the date of filing of the suit will have to be continued till the final disposal of the suit. The learned counsel for the respondent supported the impugned order. 6 I have given careful consideration to the submissions. On the basis of the consent terms filed on 8 th February 1999 in suit no.478 of 1996, the marriage between the appellant and the respondent was dissolved in accordance with section 13(B) of the Hindu Marriage Act, 1955. As per the consent terms filed in the suit, the parties agreed that the flat situated at Elegant Apartments, Cuffe Parade, Mumbai was the matrimonial home of the parties. It was agreed by the parties from the date of the consent decree that the said flat in Elegant Apartments, Cuffe Parade was belonging to the appellant 4 ao1216 and her minor son in equal proportion with equal share in the covered garage and car parking space. Thus, as per the consent terms, the appellant and her son have became owners of the said flat in Elegant Apartment together with covered garage and car parking space. The consent terms record that the said flat was matrimonial home of the appellant. Admittedly, the appellant was placed in exclusive possession of the said flat and the said flat has been sold by the appellant. In view of the consent terms, prima face, the appellant cannot claim that the suit premises is a matrimonial home of the parties. 7 Apart from all this, the trial Court has made a reference to Exh.9 which shows that the appellant is holding a flat No.C-601 at Kharghar in New Bombay and the appellant is residing therein. 8 Even going by the assertions made in the plaint, there is no specific right claimed by the appellant in respect of the suit premises. Prima facie, in view of the consent decree passed by this Court, the appellant cannot claim the suit premises as a matrimonial home. Prima facie finding based on documentary evidence is that the appellant is residing at Kharghar, New Bombay in a flat. 9 In the circumstances, no fault can be found with the discretionary order passed by the trial Court of declining to grant temporary injunction in favour of the appellant. As stated earlier, even according to the appellant, she has been dispossessed on 30 th April 2011. There is some controversy raised on the basis of the allegation that the valuable articles of the appellant are lying in the suit premises. However, the said dispute is not subject matter of the appeal and the it 5 ao1216 will be open for the appellant to apply before the trial Court for appropriate relief in that behalf. 10 Subject to what is observed above, there is no merit in the appeal and the same is dismissed with no order as to costs. Civil application no.1504 of 2010 does not survive and the same is disposed of. 11 It is made clear that the observations made by this Court and the trial Court are only tentative and prima facie observations and the suit will be decided on its own merits. JUDGE