1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION SUIT NO. 608 OF 1999 Virendra Kumar Tuli. .... Plaintiff. V/s. Smt. Nutan Kumar Tuli. .... Defendant. ....... Mr. J.P. Singh i/b. R.K. Midha for the Plaintiff. None for the Defendant. ........ CORAM : DR. D.Y. CHANDRACHUD, J. 24TH JANUARY 2008. P.C. :- The subject matter of the suit is a residential Flat, being Flat No.6 and garages 2 and 3 situated at the Waverly Co-operative Housing Society Limited, Sarojini Road, Santacruz (West), Mumbai. The Plaintiff seeks a declaration of his ownership in respect of the 2 aforesaid property and an order of injunction restraining the Defendant from creating any third party rights in respect thereof. The Plaintiff also seeks an injunction restraining the Defendant from interfering with his peaceful use, occupation and possession of the premises. The residential flat admeasures 750 sq. feet. The Plaintiff is engaged in the business of editing films and the production of cinematograph feature films and T.V. Serials. The claim of the Plaintiff is that the residential flat was purchased under an agreement to sell dated 29th October 1971 for consideration, together with the two garages. The share certificate stands in the name of the Plaintiff. The Plaintiff and the Defendant were married on 1st June 1972. The parties have two children born respectively on 2nd October 1973 and 27th April 1977. The residential flat and the two garages were transferred in the records of the society in the name of the Defendant and the name of the Defendant was endorsed on the share certificate. The Defendant had filed a Petition for divorce against the Plaintiff in the Family Court at Mumbai being Petition A-705/99 seeking a decree of 3 divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955. On 30th August 2005, a decree for divorce by mutual consent was passed by the Family Court at Mumbai, parties having agreed to a divorce by mutual consent. Until the disposal of the Matrimonial Petition, the Plaintiff had been injuncted from entering into the residential flat or disturbing the occupation, use and enjoyment thereof by the Defendant herein. The Plaintiff was also injuncted from obstructing the conduct of the tailoring business which has been carried on by the Defendant. The present suit was instituted on 23rd November 1998 seeking a declaration of ownership in respect of the residential flat and two garages and an injunction restraining the Defendant from creating any third party rights or from disturbing the occupation and possession of the premises by the Plaintiff. The Defendant has not entered appearance despite service of the writ of summons. The suit has accordingly been transferred to 4 the list of Undefended Suits. The Plaintiff has in support of his claim in the suit filed his affidavit in lieu of examination in chief and has placed on the record a compilation of the documents upon which reliance is placed. The suit came up before the Hon'ble Mr. Justice S.C. Dharmadhikari on 17th July 2007. Thereafter, a further affidavit has been filed by the Plaintiff on 31st July 2007 clarifying that the Plaintiff does not intend to disturb the occupation of the flat by his daughter Divya, who resides therein. Counsel appearing on behalf of the Plaintiff has further stated before the Court during the course of the present hearing, that the Plaintiff shall not disturb the use, occupation and possession of the Defendant as well as of his daughter both of whom are in occupation and possession of the flat. It has also been stated on behalf of the Plaintiff that the Plaintiff does not reside in the flat at present nor is he in occupation of the residential flat. The Plaintiff claims that he is in occupation and possession of the two garages where he carries on business. In the absence of any defence, the claim of the Plaintiff has 5 gone un-controverted. The suit is accordingly decreed in terms of prayer clauses (a) and (b), save and except for the words “dealing with” which shall stand execluded from the purview of prayer clause (b). Prayer clause ( c ) has not been pressed. The decree shall however be subject to the statement made on behalf of the Plaintiff by Counsel on instructions that the Plaintiff shall not disturb the use, occupation and possession of the Defendant and his daughter, who continued to reside in the aforesaid flat and the statement as made before the Court is duly accepted and recorded.