:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 240 OF 2007 IN SUIT NO. 3337 OF 2005 Mrs.Damayanti Hemraj Ashar ...Plaintiffs Versus Hemraj Dharamsey Ashar and Ors. ....Defendants ====== Mr.P.Sancheti with Mr.R.J.Cama and Ms.Pallavi Dedhia i/by. Sudeshi and Co. Adv. for the plaintiffs. Mr.S.N.Shah with Ms.S.Shinde and Ms.Poonam Kandale i/by. Vigil Juris, Adv. for the Defendants. CORAM: S.C.DHARMADHIKARI, J. DATED: 9TH APRIL, 2008. P.C. P.C. P.C. : : : 1. This Notice of Motion is for the following reliefs : :2: :2: :2: (f) that pending the hearing and final disposal of the suit, this Hon’ble Court be pleased to restrain Defendant nos.1 and 2, their agents, servants, representatives and/or any person or persons claiming under or through them by an order and injunction of this Hon’ble Court. i) from preventing the plaintiff from causing a wooden partition to be temporarily fixed in the suit flat at the place indicated by red line on the rough sketch of the suit flat. ii) from preventing the plaintiff from causing to shift the cupboard of Defendant no.1 from the bedroom of the plaintiff to the dining room of the suit flat; iii) from preventing the plaintiff from causing to shift the sofa-cum-bed from the hall to the dining room of :3: :3: :3: the suit flat; (iv) from applying for, obtaining and/or fixing a separate electric meter and/or installing an electric meter with sufficient load for bearing the load of two air-conditioners and other electrical gadgets kept/used in the suit flat; (g) that pending the hearing and final disposal of the suit Defendant no.1 and/or Defendant no.2 and or person or persons claiming under or through them including the members of the family of Defendant no.2 be restrained by an order and injunction of this Hon’ble Court. (i) from receiving any letter, mail, parcel, document or article delivered by postal department, courier, hand delivery or any other wise addressed and/or sent in the name :4: :4: :4: of the plaintiff, Defendant no.3, his wife and/or his children and/or Defendant no.4. (ii) from preventing any friend or guest or visitor or relative of the plaintiff from entering into and/or visiting the plaintiff in the suit flat; (iii) from creating loud noise, ruckus, playing any musical system, video recording and/or television programme loudly in the suit flat or any part or portion thereof; (iv) from playing any game or games like cricket or football in the suit flat or any part or portion thereof; (v) from taking, using, removing, spoiling or throwing out milk, fruits, vegetables, eatables and/or provision :5: :5: :5: brought and/or kept by the plaintiff, Defendant no.3 or his wife or Defendant no.4 in the suit flat. 2. On 2.2.2008 after bearing both sides, this Court had recorded an Undertaking of Defendant nos.1 and 2 that till the hearing and final disposal of the Notice of Motion, they will not alienate, encumber or create any third party rights or part with possession of the Suit Flat, more particularly described in the matter. 3. The learned Judge has recorded that the plaintiffs sought ad-interim orders in terms of prayer clause (f). 4. Now the Affidavits are filed and the matter is ready for hearing. 5. I have heard Mr.Sancheti appearing for the plaintiff and Mr.Shah appearing for Defendant nos.1 and 2. :6: :6: :6: 6. I am informed by Mr.Sancheti and Mr.Shah, that Defendant no.3 has moved out of the Suit Flat and has shifted to a place of his own. Therefore, Mr.Sancheti states that any reference in the pleading to Defendant no.2 shall not be construed as claiming any relief against him at the interim stage. The suit can proceed as far as Defendant no.3 is concerned without prejudice to the rights and contentions of both sides. In the light of this statement, presence of Defendant no.3 is not necessary for disposal of the Notice of Motion. Defendant no.4 is the unmarried daughter of plaintiff and Defendant no.1. Her interests are taken care of by the plaintiff and therefore she has not engaged any Advocate nor has filed any Affidavits. 7. The present suit discloses that there are disputes between the family members. Plaintiff and Defendant no.1 are the Wife and Husband respectively. Defendant nos.2 to 4 are their children. There is a married daughter but the daughter is not residing in the suit premises. Defendant No.3 has been married on 14.12.1993 and presently residing elsewhere. The plaintiff has filed a suit inter-alia to recover her :7: :7: :7: Streedhan with consequential and ancillary reliefs. She is seeking relief against her own son and Husband, namely, Defendant nos.1 and 2. It is not necessary to make a detailed reference to the plaint allegations, inasmuch as, there is a narration as to how the plaintiff and Defendant no.1 were introduced to each other and married and the business and other ventures, so also, the acquisition of the suit premises. The suit flat is admeasuring 1650 sq.ft. It has 3 bedrooms, 1 Living Room, One Kitchen and one passage. It appears that there is one Dining Room as well. In para-12 of the plaint, the measurements of the Rooms and the Flat are set out. 8. It appears that the parties have been residing jointly for quite sometime and it further appears from para-22 onwards that the dispute occurred on account of the business of the family. There are losses incurred according to the plaintiff for which she is not responsible but the Defendant no.1. It is in such circumstances, that attempts were made to sort out the differences and disputes but the same failed. There are ongoing disputes and therefore the litigation. :8: :8: :8: 9. As is usual in such disputes, until the disputes the plaintiff suspects that the Flat itself would be disposed off or in any event her possession would be disturbed or in her old age she would not be able to live peacefully. There are instances set out of the alleged disturbance and obstruction. 10. Suffice it to state from the plaint allegations that the plaintiff and her husband-Defendant no.1, so also, her son defendant Nos.2 and 3 have altercations and quarrel with each other. The plaintiff has no trust and faith in them. It is in such circumstances, that she claims the relief vide prayer clause (f). 11. The Affidavit in reply is filed in which the plaint allegations are denied. It is stated that the plaintiff has not been obstructed or disturbed in any manner. It is stated that defendant no.2 is paying the outgoings of the Society and other charges. It is specifically denied by Defendant no.2 that the plaintiff or Defendant no.3 have in any manner been :9: :9: :9: obstructed by him. It is stated that in the disputes between the children, the plaintiff has has taken a stand, one way or the other and that is how all dispute started. 12. Today, there are servants who are employed by both. In such circumstances, there was no occasion to file a suit. There are ample amenities and facilities provided. Each one could confine himself to his Room and it is therefore stated that the suit itself is filed to harass the Defendant nos.1 and 2. 13. In the light of the rival contentions, it was impressed upon the parties, that during the pendency of this suit, they must find a workable solution. Mr.Sancheti, appears for the plaintiff and Defendant no.4, whereas, Mr.Shah appears for Defendant nos.1 and 2. They have made several attempts to workout an amicable solution. However, they could not completely satisfy the parties. In such circumstances, I called upon both sides to produce a sketch of the suit Flat which would give a broad idea of the location of the Rooms including the Kitchen. In the sketch, one :10: :10: :10: Bedroom is shown exclusively in the possession of the Plaintiff and Defendant no.4. The other Bedrooms are in the possession of the Father/Husband (Defendant no.1) and the Defendant no.2 and his family. Defendant no.3 has vacated the flat and other daughter is residing with her husband in the matrimonial home. Thus, the plaintiff and Defendant no.1 and 2, so also, Defendant no.4 are the members residing in the suit flat. There is a common Kitchen Facility, so also, there is common Living Room. However, every Bedroom has an adjoining Toilet. 14. Mr.Sancheti, contended that the plaintiff would like to have the Bedroom which is presently in her possession, exclusively and undisturbed by the Husband and the children. However, for accommodating Defendant no.4-unmarried daughter, Mr.Sancheti requests that separate arrangement should be made for her sleeping in the night. 15. The Defendant nos.1 and 2 while not disputing the request to have separate sleeping arrangements for Defendant no.4, urged that the Living Room is a common :11: :11: :11: facility meant for the use of all. If the Defendant no.4 desires to use the Living Room for sleeping in the night, then, she should vacate the same earliest by 6.30 a.m. as in the Living Room, the common Fridge/Refrigerator is stored and the son of Defendant no.2 is a school going child. He has to get ready for his school, which is early in the morning and his Tiffin and other arrangement has to be made, for which the Refrigerator is required to be used. There is likelihood that the Defendant no.4 may make a hue and cry if she is disturbed in her sleep. Further, Defendant no.1 requires cold Water from the Fridge in the night. He should therefore be allowed to enter the Living Room in the night. Mr.Sancheti, submits that Defendant no.4 is an unmarried daughter and plaintiff is of advanced age. Therefore, the plaintiff desires undisturbed sleep in the night and hence separate sleeping arrangement for the daughter in not an unreasonable request. His further contention is that considering the strained relations between the plaintiff and Defendant no.1, Defendant no.4 requiring some privacy for herself and atleast during night she should not be disturbed. This request is reasonable :12: :12: :12: and Defendant No.4 assures this court that she would vacate the Living Room during the School days and even otherwise by 7 a.m. in the morning. 16. After perusing the plaint and the Annexures thereto, so also, the Notice of Motion and the Affdiavit-in-reply thereto, I am of the view that interest of justice would be subserved, by continuing the ad-interim order till the hearing an final disposal of the suit. Further as and by way of ad-hoc and interim arrangement, it is directed that the Bedroom presently occupied by the plaintiff, shall be allowed to be used by her and Defendant no.4 exclusively. Defendant nos.1 ad 2 , so also those claiming through them are restrained by an order and injunction from this court from obstructing and interfering with the plaintiffs and Defendant no.4’s use of the Bedroom which has been marked in the Sketch-Exhibit-P to the plaint. Further, the portion described as Living room in the Sketch shall be a common facility for all but between 9.30 p.m. to 6.30 a.m./7 a.m. The Defendant no.4 shall be permitted to sleep in this Living Room without in any manner being disturbed or obstructed by :13: :13: :13: Defendant nos.1 and 2. At the same time, Defendant no.4 will not be permitted to sleep in the Living Room after the time stipulated above. The Kitchen and the Passage shall be common. The entry should also be from the common door. Both plaintiff and Defendant no.4 on one hand and Defendant nos.1 and 2 on the other shall have a set of keys unto themselves. Further, if they go out of Bombay for any reason, they are permitted to lock their Bedrooms, but, the keys should be deposited with each other in such a event. 17. It is also directed that the Bedroom in Blue colour and Green colour numbered as Bedroom Nos.2 ad 3 shall be used exclusively by Defendant nos.1 and 2 and the plaintiff and Defendant no.2 are restrained by an order and injunction from in any manner obstructing the physical occupation and use of the said Bedrooms by Defendant nos.1 and 2. Needless to state, that this arrangement is without prejudice to the rights and contentions of both sides and in the event, the Defendant no.3 returns to occupy the Suit flat or tries to disturb or obstruct the above arrangement, then, both sides are at liberty to seek appropriate reliefs. :14: :14: :14: 18. The Notice of Motion is disposed off in the above terms. Nothing observed herein shall be construed as final opinion on the merits of the controversy. All observations are tentative and prima-facie and the endeavour of the court was to have a workable solution at site, so as to avoid conflicts and disputes. 19. It is also clarified that in the event, the plaintiff goes out of Bombay or in future for some reason, the plaintiff and Defendant no.1 do not occupy the suit flat, even then the Defendant no.4 who is the unmarried daughter shall be permitted to use and occupy the portion in the suit flat, which is earmarked for occupation by the plaintiff. She will be allowed to enjoy the common facilities. Both sides do not dispute that the portion at Exhibit-P which is designated as a Hall, is a common facility. **********