Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.1224 of 2008 Indumati Pinakin Patel ...Petitioner V/s. Mrs. Maya Pankaj Patel ...Respondent Mr.Anand Grover iby Mr.Prakash Mahadik for the Petitioner Mr.Devang Sanghavi for the Respondent CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 9th April, 2008 : 9th April, 2008 : 9th April, 2008 P.C. Heard Mr.Grover with Mr.Mahadik,the learned counsel for the Petitioner mother-in-law and Mr. Sanghavi,the learned counsel for the respondent daughter-in-law. This Petition is directed against the inter-locutory orders passed by the Family Court at Mumbai on 6-3-2007 and 20-4-2007. 2. The Respondent daughter-in-law has filed MJ-Petition No. B-85/2006 praying for an injunction for restraining the mother-in-law and the husband or the servants or agents from forcibly dispossessing her or disturbing her in her possession of the matrimonial home. The Suit house is Flat No. 45A,Marine Apartment, Juhu Tara Road, Mumbai 400 049. 2 3. Respondent No.1 is married to the son of the Petitioner on 6-12-2001. As per the Petitioner despite this marriage the Respondent No.1 was not occupying the suit house till she made the alleged forced entry on or about 30/31-3-2006 when the Petitioner’s son requested the Petitioner to allow the daughter-in-law to stay in the suit flat. Whereas the daughter-in-law in her petition before the Family Court has come out with the case that soon after her marriage she has been occupying the suit flat till she was forcibly evicted sometimes in February/March 2003 and she had filed a police complaint. She also alleged that she was again forcibly evicted sometimes in September 2006 and she was put in possession as per the Family Court’s order. There are complaints on record filed by the daughter-in-law regarding the allegations of dowry demand and threats of eviction from the suit flat. She claims that she is entitled for appropriate relief under Section 7(d) of the Family Courts Act and the injunction as prayed for. 4. At the sametime the Petitioner mother-in-law has filed Suit No.3739/2006 in August 2006 before the City Civil Court at Mumbai praying for a permanent injunction against the daughter-in-law restraining her from entering into the suit house and the said suit is still pending. Notice of Motion No.3350/2006 has been filed in the same suit. By the impugned order dated 6-3-2007 3 the Learned Judge of the Family Court has said that the Family Court has jurisdiction to entertain the suit filed by the daughter-in-law in view of Section 7(d) of the Family Courts Act despite the objection taken by the mother-in-law in her written-statement before the Family Court regarding the jurisdiction of the said Court to entertain the Petition filed by the daughter-in-law for the relief of permanent injunction. 5. Mr.Grover the learned counsel for the Petitioner relied upon the Judgement of the Supreme Court in the case of S.R.Batra & anr. v/s. Taruna Batra (2007 S.R.Batra & anr. v/s. Taruna Batra (2007 S.R.Batra & anr. v/s. Taruna Batra (2007 (3)SCC (3)SCC (3)SCC 169) and Vimlaben Patel v/s. Vatslabeen Patel & 169) and Vimlaben Patel v/s. Vatslabeen Patel & 169) and Vimlaben Patel v/s. Vatslabeen Patel & ors. ors. ors. rendered on 14.3.2008. rendered on 14.3.2008. rendered on 14.3.2008. The following observations made by the Supreme Court in Batra’s case (supra) are reproduced as under:- "As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is 4 the exclusive property of Appellant 2, mother of Amit Batra. Hence, it cannot be called a "shared household". No doubt, the definition of "shared household" in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society." 6. In the instant case the daughter-in-law claims to have the joint right in the suit house whereas it is the case of the mother-in-law that it was taken on rent in her deceased husband’s name and subsequently the tenancy has been transferred in her name. It is, therefore, clear that the issue of jurisdiction as raised by the mother-in-law before the Family Court to entertain the petition filed by the daughter-in-law is required to be decided as a preliminary issue and on the basis of the evidence that the parties may adduce before it. Mr. Grover submitted that an application under Section 9A of CPC will be filed before the Family Court within one week from today raising the preliminary issue of Family Court’s jurisdiction to entertain the petition against MJ Petition No. B-85/2006 filed by the daughter-in-law. Mr.Grover had also invited my attention to Civil 5 Application No. 978/2008 filed by the Petitioner praying for appointment of Court Receiver for the suit flat. This Court in its order dated 28-3-2008 has recorded the statement made by Mr.Sanghavi, the learned Counsel appearing for the Respondent that the paying guests occupying the suit house as of now shall be asked to leave and the premises/room in their possession from the suit house shall be vacated on or before 29th March, 2008. However, even by now the said statement has not been honoured and on the contrary the Respondent No.1 has moved Civil Application No. 8469/2008 praying for extension of time to vacate the part of the suit house which is in occupation of the paying guests. 7. It is admitted that the paying guests have been in the suit premises from 1-8-2007 and for considerations. Despite the purported difficulties faced by the paying guests as mentioned in the civil application filed by the daughter-in-law, the paying guest must be asked to vacate at the earliest by the Respondent No.1. 8. Hence, the petition is disposed off in terms of the following order. (a) If the Petitioner moves an application under Section 9A of CPC before the Family Court in MJ Petition No. B-85/2006 within a period of two 6 weeks from today, the same shall be heard and decided as per law as expeditiously as possible and in any case within a period of 3 months from its presentation. (b) The paying guests who are occupying part of the suit premises as of now will have to vacate the said portion/room without any further delay and it shall be the responsibility of the Respondent No.1 to get the said premises/room vacated on or before 15th April, 2008. (c) The Petitioner is at liberty to take out a fresh notice of motion, if so advised, in Suit No.3739/2006 for appointment of Court Receiver for the suit flat and undoubtedly such a motion will have to be decided expeditiously by the City Civil Court after hearing both the parties. (d) during the intervening period the mother-in-law shall be allowed to occupy her original room and she will be incharge and in possession of the entire suit premises and ofcourse the Respondent No.1 daughter-in-law to continue to reside in the suit flat subject to the outcome in her pending petition before the Family Court. 7 9. Writ to go to the Courts below forthwith. 10. Civil Applications are disposed off in terms of the above order. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]