1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.1750 of 2008 IN Suit No.1481 of 2008 M/s.Sukh Niwas Co-operative Housing Society Ltd. .. .. Plaintiff v/s. Mrs.Kala R. Gidwani & ors. .. Defendants Mr.Rajeev Kumar with Mr.P.N. Patil for Plff. Mr.Bhavesh Parmar for Deft.No.2. Ms.Vaishali V. Thorat for Deft.No.1. ---- CORAM : SMT.ROSHAN DALVI, J. DATED : 6th July, 2010 P.C. : 1.In the first Notice of Motion taken out in 2008, an ad- interim order has been passed restraining Defendant Nos.2 to 4 from coming into the suit premises and the Court Receiver has been appointed in respect of the suit premises. The case of Defendant No.1 is that she is a statutory tenant in respect of the suit premises consequent upon she having lived with her sister who was admittedly the tenant of the Plaintiff-Society at the time of the death of the sister in the suit flat. Since that possession is disputed, Defendant No.1 has 2 already filed a declaratory suit which has proceeded to hearing. The status of Defendant No.1 shall have to be considered by the Court in that suit. 2.In this suit the case that has been put up by Defendant No.1 on the one hand and Defendant No.2 on the other is rather unique. 3.Defendant No.1 claims to have adopted the son of Defendant No.2. The deed of adoption has not been offered for inspection and has not been relied upon or produced by Defendant No.1 in this Notice of Motion or in any of the litigations. It is, however, shown to the Court. It is a document executed by and between Defendant No.1 on the one hand and Defendant No.2 and his wife on the other, giving their child Master Aniket Kundaliwal in adoption to Defendant No.1. The document is stated to be registered. A rubber stamp of the Sub Registrar of Assurances is shown on each page of the document but not on any part of the document or its Annexures (except one) and not between the two pages as is the usual practice with the office of the Sub Registrar. 4.The deed of adoption may, however, be accepted. It can be seen that upon adoption the child has lost all his rights and privileges in the family of his birth. He 3 has acquired all the rights and privileges in the family of his adoption i.e. with Defendant No.1. The biological parents of the child have ceased to be his parents. They have given away their child in adoption. They, therefore, have neither any obligation nor any rights over the child. They do not require to maintain, educate, or otherwise take care of the child. Nevertheless on these grounds, Defendant No.2 as also his wife claim to visit as also live in the suit flat. 5.The contention of the Plaintiff that the deed of adoption is bogus has a lot of substance. The very act of Defendant No.2 in insisting upon visiting the child shows that ties which in law get severed ipso facto upon adoption have not been severed or are not intended to be severed. Similarly the case made out on behalf of Defendant No.1 that she is an old woman and would require assistance or care from Defendant No.2 and his wife for herself and/or the child goes diametrically against the deed of adoption. 6.The deed of adoption is dated 19.3.2008. It has been executed 2 years ago. Defendant No.1 is stated to be 70 years old. She was, therefore, 68 years old and a single mother when she adopted the child. All the parties, who knew one another, knew her physical condition at the time of adoption. Nevertheless 4 Defendant No.2 and his wife have given their child away in the adoption to an otherwise aged lady. That aged lady has taken the child in adoption despite her age. Both are bound by the aftermath of their act. They cannot be made to say that despite or because of the adoption, Defendant No.2 would have any right over the child and would require to come to the house of Defendant No.1 singly or with his wife. A consorted effort of unlawful induction of Defendant No.2 and his family by Defendant No.1 is seen 7. The case of adoption, without reliance upon the document made out at the ad-interim stage, has been considered by my Brother Judge Kanade in his order dated 31 st August 2009. The contention relating to adoption has been rejected. Upon the case sought to be made out by Defendant No.2, the injunction restraining not only Defendant No.2 but also his wife and son from entering into the suit premises is required to be passed. 8.It may at once be stated that normally upon an adoption the Court would never severe the ties of the child in his adopted family. However, the deed of adoption was neither produced before the Court nor its inspection given to other side. Hence, the factum of adoption has been disbelieved and rejected. Consequently, the child 5 also has not been allowed to enter upon the suit flat. 9.As contended by Mr.Kumar, after the passing of the ad- interim order, there has been no further affidavit, no statement of facts made to prove or substantiate the adoption as a genuine transaction. Consequently, though for the first time the deed of adoption, in the manner stated above, is shown to Court, there is no reason to modify the ad-interim order specially in view of the fact that the directions are being passed today in respect of the suit itself upon the parties having led evidence in the preliminary issue that came to be framed. 10.Counsel for all the parties have agreed that the declaratory suit filed by Defendant No.1 in the Rent Court, which will determine the basis of their dispute, shall have to be tried and decided first. This suit would follow as a matter of course thereafter. The Plaintiff has sued on trespass. Defendant No.1 has claimed tenancy. Hence, Counsel on behalf of the parties have agreed that the preliminary issue need not be decided in this suit. The preliminary issue with regard to the bar of the jurisdiction of this Court is consequent upon the declaration of tenancy which will be decided by the Rent Court. Hence, this suit is required to be simpliciter kept for disposal after the 6 final decision regarding the declaration of tenancy of Defendant No.1 in the Rent Court, and in all lawful appeals thereupon is passed. 11.Mr.Kumar, however, argued that the ad-interim order must continue as an interim order pending the suit. The Notice of Motion itself has been heard. Court Receiver has been appointed and directed to take only symbolic possession. 12.In view of what has been stated above, there is no reason to modify the ad-interim order. 13.Hence, the following order:- ORDER (i)The ad-interim order dated 31 st August 2009 shall continue pending the suit. (ii)However, the Plaintiff-Society shall not, in any manner, alter the records of the Society in respect of the suit flat, more specially the share certificate of the Society in respect thereof, pending the suit. (SMT.ROSHAN DALVI, J.)