1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2891 OF 2009 IN PETITION NO. B-50 OF 2007 Shri Suhas Panditrao Kulkarni. ... Petitioner. V/s. Smt. Smita Suhas Kulkarni. ... Respondent. Mr. S.C. Thatte for the Petitioner. Mr. A.A. Joshi for the Respondent. CORAM : S.C. DHARMADHIKARI, J. DATED : 15TH JUNE, 2009. P.C. :- Heard learned Advocate for the parties. With their consent the Petition is disposed off finally. The Petitioner – husband challenges the order passed below Exhibit 24 in Petition No.B-50 of 2007. 2. The wife, Respondent before me, applied to the Trial Court for a direction to the Petitioner – husband to hand over possession of a flat and for interim injunction restraining him 2 from disturbing the wife’s possession. 3. The application (Exhibit 24), on which the subject order came to be passed invokes the Trial Court’s jurisdiction under order 39 of the C.P.C. read with Family Court’s Act 1984. It is common ground that the marriage between the Petitioner and Respondent was solemnized on 9th October 1994 and thereafter, they co-habited for some time and have two daughters. There were certain incidents which have been narrated in the subject application and while not disputing that even the Respondent – wife is employed, it is stated that she obtained a loan and purchased the subject flat. However, the application was made on 6th October 2007 on the allegation that from 9th June 2007 the wife was forced to leave the premises/subject flat alongwith the daughters and lodge a complaint against the husband for his alleged acts of assault and abuse. 4. The Petitioner – husband has denied these allegations and had specifically stated that the incident that is stated to have occurred on 9th June 2007 did not occur at all. It is 3 stated that the Respondent and the two daughters went out for dinner and did not return but are making baseless allegations now as an afterthought. The Petitioner – husband, therefore, denied all the allegations and prayed that the application be dismissed. 5. The Trial Court by the impugned order has specifically referred to the allegations in the application and the denials. The Trial Court was aware of the denials and the specific case that the property is a joint property. It is stated by the husband that it may be true that it is purchased from the loan obtained by the Respondent – wife and the instalments are deducted from her salary. However, it is stated that the wife is residing separately alongwith the daughters. From a perusal of the impugned order, it is apparent that the learned Judge has failed to apply her mind and has granted a drastic relief without in any manner concluding as to how a strong prima-facie case is made out for the orders that are passed, that balance of convenience is in whose favour and that irreparable loss will be caused if the order is not passed in favour of the wife. None of the principles that are to be 4 applied before granting mandatory orders and injunction have been adhered to and this is a clear case of the order suffering from an error apparent on its face. It is patently unsustainable. 6. The Court below should have considered the application so also the reply and after adverting to these settled principles concluded as to how the reliefs prayed for need to be granted. There is no reference to any documents much less contentions of parties. 7. In these circumstances, the order under challenge is patently unsustainable and will have to be quashed and set aside. It is accordingly set aside. Rule is made absolute in terms of prayer clause (a). However, the Petitioner – husband shall not alienate, encumber or part with possession so also create third party rights in respect of the flat which is subject matter of the application (Exhibit 24). He shall abide by this order and directions until further orders of the Trial Court. However, this order shall not preclude parties from raising appropriate pleas on merits and all of them are kept open. 5 Further, in the interest of justice it is directed that some amount should be paid as the wife is residing separately. There was some argument with regard to the quantum but in my view taking into account the totality of the circumstances, ends of justice would be met if the Petitioner pays a sum of Rs.5,000/- to the Respondent so that she can take care of the unmarried daughters properly. The amount should be paid from the date of the Trial Court’s order that is with effect from February 2009 and shall be paid from month to month until Trial Court’s further orders. 8. This order will not prevent the Petitioner from urging that the wife is not entitled to any maintenance nor the amount of maintenance additionally claimed by the wife for the daughters should be provided once this Court has granted them relief. All contentions are kept open. Petition allowed accordingly. S.C. DHARMADHIKARI, J.