1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.6404 of 2007 Alka Sovind Chandewar Petitioner Vs. Sovind Nathuji Chandewar Respondent Mr.V.S.Kapse for petitioner. Mr.R.T.Lalwani for respondent. CORAM: B.H.MARLAPALLE, J. April 23, 2008 P.C. 1. Heard Mr.Kapse, the learned counsel for the petitioner - wife and Mr.Lalwani, the learned counsel for the respondent - husband. The wife is aggrieved by the interlocutory order passed by the Family Court on 1/8/2007 thereby allowing the application filed at Exhibit 16. By the said order a Court Commissioner has been appointed to carry out the partition of Flat Nos.601 and 701 which are part of Sarla Sadan, S.V. Road, Malad (West), Mumbai. 2. Mr.Kapse submitted that the said order has been passed by the Family Court without giving sufficient opportunity to file reply and in fact, though the petitioner had taken adequate steps, due to the reasons beyond her control her reply could not 2 be filed before the Family Court. Mr.Kapse, therefore, prayed for remand of the application so that a fresh order could be passed after hearing both the parties. He also submitted that several other proceedings including the arbitration proceedings are pending between the parties and the subject flats are the property of a Partnership firm by name Saras Developers of which the petitioner wife and one Mr.Khan are the partners. It was also pointed out that the respondent - husband acted as the power of attorney holder of the petitioner - wife in developing the building by name Sarla Sadan on behalf of the partnership firm Saras Developers. It was further stated that the respondent - husband has alternative accommodation to stay and there is no necessity to partition the flats which are occupied by the wife along with the daughter who is studying for medicine. 3. Mr.Lalwani, the learned counsel for the respondent - husband, on the other hand, has invited my attention to the agreements between Saras Developers and the respondent - husband which clearly indicate that both the flats stand in the name of the husband as the owner as of now as per the said 3 documents. The fact that the petitioner - wife is in possession of the said flats is also not disputed. However, Mr. Lalwani has placed on record a copy of the agreement of leave and licence thereby indicating that another flat admeasuring about 1250 sq.ft. and located in Vile Parle area has been rented out by the wife with effect from 7th October 2006 and on a monthly licence fees of Rs.23,000/-. 4. It is evident from the record that before the impugned order was passed the Family Court had appointed a Court Commissioner and for the said appointment the petitioner - wife by her purshis dated 13/2/2007 had given no objection. The Court Commissioner placed on record his report which pointed out that Flat Nos.601 and 701 are located on two different floors and one on the other. The flats are presently connected by an internal staircase and thus making a one unit of duplex flat. Pursuant to the order passed by this Court on 31/8/2007 the respondent - husband has filed an affidavit and clearly reiterated that he has no other place of residence in Mumbai and, therefore, he ought to be allowed to occupy at least one of the two flats. He has also left it to the choice of his wife to select 4 either of them and as per the Court Commissioner’s report the staircase slab which is about 6 sq.ft. could be closed by an RCC slab. I have also noted that the wife had sufficient time to file her reply on the application at Exhibit 16. One of the two flats is of two bedrooms and the husband has no objection if the same is occupied by the wife. I am, therefore, satisfied that the impugned order passed by the Family Court on 1/8/2007 does not call for any interference in this petition under Article 227 of the Constitution. 5. Hence the petition is rejected. It is further directed that Petition No.A-2076 of 2005 be heard and decided by the Family Court as expeditiously as possible and in any case before 31st October 2008. 6. Oral application for stay of this order made by Mr.Kapse is hereby rejected. (B.H.MARL