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High Court of Judicature at Bombay
K.K. TATED, J.
Vinod Vithal Ruke
Versus
Vithal Bhaguram Ruke
Appeal From Order No. 131 of 2014 with Civil Application No. 163 of 2014
Decided on : 22-07-2014
Family Dispute - Property Dispute - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Indian Easements Act, 1882 - S.C. Suit No.1180 of 2011 - [KEYWORD] - Family Dispute - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Indian Easements Act, 1882 - S. 52 of the Indian Easements Act, 1882, Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - The court discussed the rights of a family member to stay in the suit premises, the definition of a licensee, and the discretion of the court to grant mandatory injunction at the interim stage. The court emphasized that a son residing with the parents does not have any independent legal right to stay in the premises except as a member of the family. The court also highlighted that the discretion to grant mandatory injunction should be rarely used and should be based on the facts of the case.
Fact of the Case:
The plaintiff, who was allotted a room under a slum rehabilitation scheme, filed a suit to remove the defendant, his son, from the family house due to harassment. The defendant and his wife entered the suit flat without permission and started residing there, causing distress to the plaintiff and his daughters.
Finding of the Court:
The court found that the defendant, as a son, cannot claim to be a tenant in common with his father or a licensee under the Rent Control Act. The court emphasized that a son residing with the parents does not have any independent legal right to stay in the premises except as a member of the family. The court also noted that the discretion to grant mandatory injunction should be rarely used and should be based on the facts of the case.
Issues: The main issue was whether the defendant, as a son, had the legal right to stay in the suit premises and whether the court had the discretion to grant a mandatory injunction at the interim stage.
Ratio Decidendi: The court held that the defendant, as a son, did not have any independent legal right to stay in the premises except as a member of the family. The court also emphasized that the discretion to grant mandatory injunction should be rarely used and should be based on the facts of the case.
Final Decision: The court dismissed the Appeal from Order, upholding the impugned order directing the defendant to remove themselves from the suit premises. The operation and implementation of this order were stayed for six weeks from the date of the judgment.
1. Heard learned Counsel for the parties.
2. By this Appeal from Order appellant original defendant challenges the order dated 05.08.2013 passed by the Bombay City Civil Court, Dindoshi, Goregaon (E), Mumbai in Notice of Motion No.1391 of 2011 in S.C. Suit No.1180 of 2011 directing appellant, his wife and children to remove themselves from the suit premises i.e. Room No.401, Kushinara Co-op. Housing Society Ltd. Chuim Village, Dr. Ambedkar Road, Khar (West) Mumbai 400 052, admeasuring area of 225 sq. ft (carpet area).
3. This is an unfortunate case, where the respondent original plaintiff-father wants that the appellant original defendant-son should be removed from the family house as he has become nuisance to him.
4. For the sake of convenience hereinafter the appellant referred as defendant and respondent as plaintiff as per their nomenclature appears in the suit before the trial court.
5. A few facts of the matter are as under :
i) The plaintiff has been allotted room premises bearing room No.401, Kushinara Co-op. Housing Society Ltd. Chuim Village, Dr. Ambedkar Road, Khar (West) Mumbai 400 052, admeasuring area of 225 sq. ft (carpet area) in lieu of his old structure, which was demolished under slum rehabilitation scheme. Plaintiff is residing in the said suit flat along with their son defendant, his two unmarried daughters and one married daughter. As the defendant started harassing the plaintiff from time to time, plaintiff filed complaint with the police station on 05.01.2010 stating that defendant alongwith his wife started tormenting to the plaintiff mentally as well as physically. Plaintiff in the plaint stated that the defendant was earning more than Rs.30,000/- per month.
ii) When the plaintiff lost his wife in the year 2005, the defendant along with his wife left the home and started residing at Chembur along with his father-in-law and mother-in-law. The defendant and his wife entered the suit flat with the help of duplicate key without plaintiff's permission. As it became unbearable for the plaintiff and his two unmarried daughters and one married daughter to stay with the defendant, the plaintiff filed S.C. Suit No.1180 of 2011 in the Bombay City Civil Court at Dindoshi for a mandatory order and decree directing defendant to remove/vacate themselves along with their goods, articles from the suit premises. Plaintiff claims following reliefs in the said suit.
"a) That an appropriate mandatory order and decree of this Hon'ble Court it be decreed that the Defendant, his wife and children have no legal right to continue to stay in the suit premises or any part thereof and accordingly they be order and directed to remove/vacate themselves along with their goods, articles and all their belongings from the suit premises being Room No.401, Kushinara Co.op. Housing Society Ltd., Chuim Village, Dr. Ambedkar Road, Khar (W), Mumbai - 400 052, admeasuring area of 225 sq. ft. carpet area as duly shown in the rough sketch plan at Exhibit 'A' by following due process of law;
b) That the defendant, his wife or any person claiming by or under them be directed by an appropriate order and direction of this Hon'ble Court from in any manner selling, transferring, alienating or creating any charge of the suit premises or any part thereof being Room No.401, Kushinara Co.op. Housing Society Ltd., Chuim Village, Dr. Ambedkar Road, Khar (W), Mumbai - 400 052, admeasuring area of 225 sq. ft. carpet area to any third person without any written consent of the Plaintiff and 3 unmarried daughters and/or by order of the any Competent Court;
c) That pending the hearing and final disposal of the suit the Defendant, his wife, children or any persons claiming by or under them be restrained by an appropriate order and injunction of this Hon'ble Court from in any manner representing to any person as owner of the suit flat and thereby intending to and/or selling, transferring, assigning, alienating the suit premises or any part thereof b
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