CHITRA ADHIKARI SHROFF Vs. GAUTAM SHROFF & ORS

JUDGEMENT

(1.) This revisional application is directed against order no.31 dated 18th April, 2016, passed by the learned Civil Judge (Senior Division), 1st Court at Alipore, 24-Parganas (South), in Title Suit No.491 of 2014. By the order impugned, the learned Court below has rejected the petitioner's application under Section 151 of the Code of Civil Procedure wherein she prayed for restoration of her possession in the suit property. It is the petitioner's case that being the wife of defendant no.1, she has a right of residence at the suit property. According to the petitioner, her husband, defendant no.1, entered into an agreement with the developer who agreed to sell the flat in question being the suit property to the defendant no.1 on consideration mentioned in the agreement. According to her, possession was handed over to the defendant no.1 and being the legally married wife, she was living in the suit premises with her husband. The petitioner, apprehending dispossession at the instance of the defendant no.1, filed a suit for declaration contending, inter alia, that being legally married wife, she is entitled to get maintenance from the defendant no.1 and that she has a right of residence in the suit property and the same be charged against the maintenance of the plaintiff. She also prayed for permanent injunction restraining the defendant and/or his men, agents from selling, transferring, alienating, encumbering and/or disturbing peaceful possession and/or ousting the plaintiff from the suit property and/or from causing any physical violence upon the plaintiff in any manner whatsoever. According to the plaint, a copy of which annexed to the petition, the suit property is a flat being no.6D containing a built up area of 1094 Sq.ft. more or less on the 6th floor of the Block A of the Building Complex lying and situated at premises no.264, Netaji Subhas Chandra Bose Road, Police Station Jadavpur, Kolkata 700047, District South 24-Parganas.

(2.) In that suit, the petitioner filed an application for temporary injunction under Order XXXIX, Rules 1 and 2 and also prayed for ad interim injunction. In the temporary injunction application, the petitioner contended that defendant is the sole and absolute owner of the suit property. After purchase of the suit property, the plaintiff and defendant, being husband and wife, shifted to the suit property and made the same habitable. The defendant, in a pre-planned manner, left the suit property without any intimation to the plaintiff on 31.10.2014 and since then the plaintiff had been residing in the suit property alone and was in exclusive possession thereof. It was further contended that the plaintiff is residing in the suit property but the defendant, with his mala fide intentions and to succeed in his cunning plans in various ways, was making conspiracy to oust the plaintiff from the suit property though the plaintiff had every right over the suit property and also had right of residence thereat. It is in the injunction application that on 22nd November, 2014, the defendants, along with their men and agents and their muscle men, came to the suit property and tried to oust the plaintiff therefrom forcefully and illegally but somehow, the plaintiff, with the help of local people, restrained the defendant and his men and agents and others from causing such physical violence and dispossession of the plaintiff. But the defendant, at the time of leaving the suit property, threatened the plaintiff with dire consequences and told that he would come back again and take forcible possession of the suit property. With this background and the averments made in the injunction application, the plaintiff made a prayer for an order of temporary injunction restraining the defendant and /or his men and agents from selling, transferring, alienating, encumbering and/or from disturbing the peaceful possession and/or ousting the plaintiff from the suit property and/or from causing any physical violence upon the plaintiff in any manner whatsoever.

(3.) On the said application an ad interim order of injunction was granted by the learned 1st Civil Judge (Junior Division), Alipore, on 28.11.2014. By the said order, the learned trial Court held "from the materials brought in record and from the averment made in the plaint supported by affidavit, the plaintiff's possession over the suit property is prima facie made out. However, I am unable to accept that the plaintiff's right to maintenance from the defendant would automatically create charge upon any of his properties. The defendant in my view have the liberty to choose where to house the plaintiff, the plaintiff as of right cannot claim residence in the suit property specifically, she only can claim residence that fits the status of the parties. Therefore, I am not inclined to deprive the defendant from dealing with his own property in a way he chooses. Nevertheless, since the plaintiff is in possession of the suit property I think it would be proper at this stage to protect her from dispossession without due process of law."