IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.324 of 2009 FIRST APPEAL NO.324 of 2009 FIRST APPEAL NO.324 of 2009 with with with CIVIL APPLICATION NO.1208 OF 2009. CIVIL APPLICATION NO.1208 OF 2009. CIVIL APPLICATION NO.1208 OF 2009. Mrs.Priya Prakash Malkar & Anr. ..Appellants versus Radhika Jairam Malkar ..Respondent Mr.Nishigandh Patil for the appellant None for the respondents. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 4th May, 2009. DATED : 4th May, 2009. DATED : 4th May, 2009. P.C. 1. Respondent, mother in law of appellant No.1 had instituted the suit in the City Civil Court being Short Cause Suit No.4613 of 2003 for an Order of injunction restraining the appellant No.1 and appellant No.2 from remaining in and occupying the suit premises. The said suit has been decided by the learned Judge of the City Civil Court (hereinafter referred to as the learned trial Judge) by judgment and decree dated 31.1.2009. Against this judgment and decree, the appellants have filed the present first appeal. 2. In the course of arguments, the court was -2- informed that the appellant’s defence was struck off and that the suit proceeded without written statement. The appellants had filed Writ Petition (Stamp) No.1583 of 2009 challenging the said Order by which written statement was not permitted to be filed. The said petition has been disposed of and the appellants have been permitted to raise contention in this appeal in that behalf. 3. The present suit relates to the premises which are standing in the name of the respondent No.1. It is the contention of the appellants that the appellant No.1 started staying in the said premises along with her husband Prakash, (who is no more), since after her marriage, and therefore the suit premises constitutes her matrimonial home. In so far as this aspect is concerned, the law is well settled. 4. I have heard learned Advocate for the appellants. The learned trial Judge has recorded finding that the respondent is owner of the suit premises and therefore she is entitled to an Order of injunction. The learned Advocate for the appellants contended that the said premises being the matrimonial home, the appellants have right to -3- remain over there. The said contention cannot be accepted, once it is noted that the suit premises are owned by the respondent. In so far as non filing of the written statement is concerned, I am inclined to observe that the suit has been disposed of by treating that the appellants have not filed written statement, as the defence was struck off. In such a case, the record will have to be perused and the same has been done by the learned trial Judge. 5. Once it is noted that the premises stood in the name of the respondent, she has right to decide as to who shall reside in the said premises and in such case no interference is required in the Order by which the present appellants are restrained from entering the suit premises. It is also noted that the appellants have a alternate premises where the appellants are residing. A reference to the said premises is found in the judgment and as such the present appellants are not without a roof. 6. For the reasons mentioned aforesaid, there is no merit in the appeal and the first appeal will have to be dismissed. Hence the Order. -4- ORDER i. The first appeal is dismissed with no Order as to costs. ii. In view of dismissal of the first appeal, Civil Application No.1208 of 2009 does not survive and the same is dismissed with no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)