ash 1 ao-1371.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.1371 of 2010 Kavita Jasmin Mehta. .. Appellant Vs Smt. Damayanti Balwantrai Mehta & Ors. .. Respondents -- Shri A.G. Damle for the Appellant. Shri Vishwajeet Kapse for Respondent No.1. -- CORAM ; A.S. OKA, J DATED : 6TH MAY, 2011 P.C. . Heard learned counsel appearing for the parties. The challenge in this Appeal is to the order of temporary injunction dated 1st October, 2010 passed by the learned Judge of the City Civil Court. With a view to appreciate the submissions, it will be necessary to make a reference to the facts of the case. The Appellant is the 2nd Defendant. The 1st and the 2nd Respondents are the in-laws of the Appellant. The 3rd Respondent is the 1st Defendant who is the husband of the Appellant. There appears to be a matrimonial dispute between the Appellant and her husband. 2. The suit was filed by the 1st and 2nd Respondents in respect of a residential flat more particularly described in Paragraph 2 of the Plaint. The ash 2 ao-1371.10 prayer made in the suit is that the present Appellant be directed by a mandatory order of injunction to remove her belongings and articles from the suit flat. It is contended that initially the 2nd Respondent and his elder son were absolute owners of the suit flat. It is alleged that the 2nd Respondent and his elder son executed a registered gift deed dated 17th December, 2003 in respect of the said flat in favour of the 1st Respondent. Various averments have been made in the plaint. Various allegations are made such as the Appellant tried to commit suicide etc. It is contended that in the month of August, 2008, there was a meeting held by the members of the family. It was decided that the Appellant and her husband will reside in the premises at Matunga. It is stated that though her husband shifted to the premises at Matunga, the Appellant wife did not shift. It is contended that though her husband is residing in the premises at Matunga, the Appellant 2nd Defendant has refused to vacate the suit premises. It is stated that there are frequent quarrels between the Appellant and her husband which causes mental torture to the 1st and 2nd Respondents. A reference has been made to the Petition for restitution of conjugal rights filed by the husband against the Appellant-wife. It is alleged that the behaviour of the Appellant is very strange and she is harassing the first and second Respondents. It is alleged that both the said Respondents are old and ailing and that they do not want mental agony. In the Plaint, it is alleged that the Appellant is claiming the suit premises as her matrimonial home though she has no right in respect thereof. Hence, the suit has been filed for mandatory injunction directing the Appellant to remove herself from the suit flat. ash 3 ao-1371.10 3. In the said Notice of Motion taken out for interim relief, a reply was filed by the Appellant. In the reply, various allegations have been made against her husband. It is denied that it was agreed that the Appellant and her husband will shift to the premises at Matunga. Various allegations have been made as regards the incidents taken place on 3rd July, 2008 and 4th July, 2008. It is stated that her husband has shifted to premises at Matunga which is a single room tenement. It is pointed out that the Appellant and her minor sons are staying in the suit premises. It is contended that the Appellant is staying in the premises as a matter of right being her matrimonial home. 4. By the impugned order, the Notice of Motion taken out by the husband has been made absolute in terms of prayer (a) thereof. The prayer clause (a) restrains the Appellant from entering and remaining in the suit flat. 5. Learned counsel appearing for the Appellant submitted that the 1st and 2nd Respondents acting in collusion with the third Respondent – husband have evolved a novel method of preventing the Appellant from entering her matrimonial home. He submitted that there is enough evidence on record to show that the suit flat is a matrimonial home of the Appellant and one room tenement already occupied by the husband at Matunga cannot be the matrimonial home. He invited the attention of the Court to the findings recorded by the learned Trial Court. He submitted that merely because there is a dispute between the Appellant and her husband, such a drastic interim order which has the effect of throwing out the Appellant and her son from the suit premises cannot be passed. He submitted that even ash 4 ao-1371.10 going by the assertions made in the plaint, there are no incidents between the Appellant and her in-laws and there was no such occasion to pass such a drastic order of injunction. The learned counsel appearing for the 1st and 2nd Respondents stated that till disposal of the suit, the 1st and 2nd Respondents are willing to make arrangement so that the Appellant can acquire a reasonable premises in the same area on leave and license basis. There is an affidavit filed by the 2nd Respondent in which it is disclosed that a sum of Rs. 2,50,000/- has been deposited in this Court which can be utilised by the Appellant for payment of deposit for obtaining a premises on leave and license basis. It is stated that the 1st and 2nd Respondents are ready and willing to deposit a sum of Rs.25,000/- per month which will be sufficient to meet the requirement of payment of license fees. A sum of Rs.5,00,000/- ( Five Lakhs ) has been deposited in this Court by the 2nd Respondent which will take care of the license fees till 31st December, 2012. Undertaking has been given by the 2nd Respondent for himself and on behalf of the 1st Respondent to keep on depositing the sum of Rs.25,000/- per month if the suit is not decided before 31st December, 2012. 6. I have considered the submissions. There appears to be a matrimonial dispute between the Appellant and her husband. The respective ages of the 1st and 2nd Respondents as disclosed in the Plaint are 69 and 77 years respectively. Apparently, there appears to be a dispute between the Appellant on one hand and her in-laws ( 1st and 2nd Respondents ) and her husband on the other hand. There is a matrimonial petition pending between the Appellant and her husband in the family Court. It is a duty of ash 5 ao-1371.10 the 1st and 2nd Respondents to ensure that the Appellant who is their daughter-in-law stays comfortably. Adequate amount has been deposited in this Court by the 1st and 2nd Respondents to enable the Appellant to acquire a flat on leave and license basis of her choice. To avoid conflicts, it will be in the interests of the contesting parties that a separate accommodation is made available to the Appellant. If such separate accommodation is made available, the Appellant and her son as well as 1st and 2nd Respondents can reside peacefully without having any conflict. It is obvious that even if the Appellant shifts to the flat obtained by her on a leave and license basis, her alleged rights will not be prejudiced as this will be an interim arrangement till disposal of the suit and as far as the rights in respect of the suit flat are concerned, the same will be determined in the suit. The 1st and 2nd Respondents have deposited a sum of Rs.2,50,000/- in his Court which will be adequate deposit amount to acquire a small flat on leave and license basis in the locality of the suit premises. The said Respondents have already deposited additional sum of Rs.5,00,000/- which will cover license fees at the rate of Rs.25,000/- per month for a period of 20 months. Hence, the impugned order will have to be modified for making an equitable arrangement between the parties till the disposal of the suit. 7. The Appellant deserves to be granted reasonable time to make arrangement for obtaining a suitable flat on leave and license basis. Out of the amount deposited by the 2nd Respondent in this Court, the appellant will have to be permitted to withdraw a sum of Rs.2,75,000/- so that requisite amount of deposit can be paid by her and license fee for one month in ash 6 ao-1371.10 advance can be paid by her. After the Appellant obtains a flat on leave and license basis and removes herself from the suit premises, it will be open for her to withdraw a sum of Rs.25,000/- per month out of the amount which is deposited in this Court by the 2nd Respondent. 8. In the circumstances, the Appeal from Order is disposed of by passing the following order:- (a) Statements made in the Affidavit dated 27th April, 2011 of the 2nd Respondent for himself and on behalf of the 1st Respondent are accepted. Undertaking in Paragraph 2 thereof is accepted as undertaking of both the said Respondents. (b) The Registrar ( Judicial-I) will permit the Appellant to withdraw a sum of Rs.2,75,000/- deposited in this Court on production of an authenticated copy of the operative part of this order. (c) In view of the undertaking and deposit of the amounts of Rs.2,50,000/- and Rs.5,00,000/- in this Court, the impugned order is hereby confirmed. The operation of the impugned order will remain stayed till 30th June, 2011 and the order shall operate from ash 7 ao-1371.10 1st July, 2011. (d) If the Appellant fails to withdraw the sum of Rs. 2,75,000/- deposited by the 2nd Respondent in this Court on or before 30th June, 2011, it will be open for the 2nd Respondent to apply before this Court for withdrawal of the entire amount deposited in this Court. (e) If the Appellant withdraws the sum of Rs.2,75,000/- or or before 30th June, 2011, the balance amount deposited by the 2nd Respondent shall be forthwith transfered to the Trial Court and the said Court will permit the Appellant to withdraw a sum of Rs. 25,000/- per month towards payment of license fees. (f) At the time of finally deciding the suit, the Trial Court will pass an appropriate order regarding the balance amount, if pending in the Trial Court on the date of decision of the suit and as regards the amounts which are already withdrawn by the Appellant. ash 8 ao-1371.10 (g) It is made clear that the interim arrangement is made till the disposal of the suit and the same will be naturally subject to the final outcome of the suit. (h) It is made clear the contentions of the parties regarding right, title or interest in respect of the suit flat will remain open in the suit and no equity will be created on the basis of this order in favour of both the parties. (i) Hearing of the suit is expedited and the Trial Court shall make an endeavour to decide the suit by the end of March, 2012. (j) The Appeal from Order is disposed of on above terms. (k) The Registrar (Judicial–I) will act on an authenticated copy of the operative part of this order by permitting the Appellant to withdraw the sum of Rs.2,75,000/-. ( A.S. OKA, J )