: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.439 OF 2010 IN FIRST APPEAL NO.101 OF 2006 Sangita Pradipkumar Magade .. Applicant V/s. Vishnu Dhanappa Magade & Ors. .. Respondents Ms. Vaijayanti R. Kalekar for the Applicant. Mrs. J.S. Kini i/b. Mr. N.N. Patil for the Respondents. CORAM : SMT. NISHITA MHATRE, J. DATED : 15 TH APRIL, 2010. P.C.: 1. This Civil Application has been filed by the applicant for a mandatory injunction against respondent No.1F and his agents, servants and other persons claiming through him to vacate the possession of the suit flat and further order that the status of the suit flat be restored to what it was when the suit was filed. The suit flat is Flat No.B-602, Brahma Niwas, Shree Ganesh Co-operative Housing Society, MHADA Colony, Mulund (E), Mumbai-400 081. 2. The suit was filed before the City Civil Court, Bombay, by the parents in law of the applicant. The applicant’s husband expired on being afflicted by cancer after which problems arose between her and : 2 : her parents in law. Hence, the parents in law filed the suit seeking an injunction against the applicant for evicting them from the suit premises. 3. The suit has been decreed by the trial Court. While doing so, the trial Court has held that the suit flat was a part of the joint family property. Hence, the First Appeal has been filed by the applicant and it has been admitted. 4. The present Civil Application has been filed against the respondents who claim to be the heirs of respondent No.1. According to the applicant, Dilip Vishnu Magade, i.e. respondent No.1F, has entered into the suit flat alongwith others and has started residing in it in order to establish his claim over the suit flat. She contends that respondent Nos.1A to 1H have prevented her from living in the suit flat although it was her husband’s flat. She has pleaded that respondent Nos.1A to 1H, more particularly respondent No.1F has damaged the flat and has attempted to physically assault the applicant for which she has lodged a police complaint. It is in these circumstances that the applicant also seeks a mandatory injunction against respondent Nos.1A to 1H from residing in the suit flat. 5. While considering this Civil Application, it is necessary to bear in mind that the suit is filed by the parents in law of the applicant. The : 3 : applicant’s father in law has died. Her mother in law does not stay in the suit flat any more and resides at her native place, according to the applicant. The learned Advocate for the applicant contends that this is so because of the entry into the suit premises by the respondents. 6. An affidavit has been filed by Dilip Vishnu Magade i.e. respondent No.1F contending that the injunction in the nature of final relief cannot be granted as interim relief. A further contention is raised that there is an observation of this Court in Suit No.978 of 2009 that the applicant is not living in the suit premises and, therefore, no orders should be passed in favour of the applicant in the present Civil Application. 7. I have heard the learned Advocates for the applicant and the respondents. In my view, the respondent Nos.1A to 1H have no right to enter the suit premises or to reside in the suit premises on the basis of an injunction granted by the City Civil Court, Bombay in favour of the original plaintiffs. They must first establish their right to the suit flat in order to reside in the suit flat. Even assuming the applicant is not ordinarily residing in the suit flat because of the nature of her work, as observed by this Court, in an order passed on the Notice of Motion in Suit No. 978 of 2009 filed on the original side of this Court, in my view, that does not give any right to : 4 : the respondent Nos.1A to 1H to reside in the suit flat. In fact, while passing the order on the Notice of Motion, this Court has observed that granting the prayer (b) of the Notice of Motion would lead to disturbing of the status-quo prevailing with respect to the suit flat. The Court has refused the prayer for an injunction restraining the applicant from preventing respondent Nos.1A to 1H from residing in the flat has been refused. 8. In any event, there is no averment at all in the plaint that the suit flat was owned jointly by the respondent Nos.1A to 1H alongwith their parents and the deceased husband of the applicant. Therefore, all that the City Civil Court, Bombay has directed is that the defendant was perpetually restrained from evicting the plaintiffs, i.e. her parents in law, from the suit flat. There is no order directing the applicant to permit the respondents herein from either entering or living in the suit flat. 9. In these circumstances, in my opinion, the Civil Application must be allowed. Accordingly, the Civil Application is made absolute in terms of prayer clauses (a) and (b). 10. Mr. Kini appearing for the respondents seeks a stay of this order. The stay is refused.