Smt. Saroj M. Bijlani and 2 Ors. Vs Chandru G. Bijlani and 9 Ors.

¶1

42-NMS-981-14+.DOC

¶2

Shephali

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 981 OF 2014

¶4

IN

¶5

SUIT NO. 769 OF 2007

¶6

ALONG WITH

¶7

NOTICE OF MOTION NO. 22 OF 2015

¶8

IN

¶9

SUIT NO. 769 OF 2007

¶10

…Plaintiffs

¶11

Smt. Saroj M. Bijlani & 2 Ors.…Plaintiffs
Versus
Chandru G. Bijlani & 9 Ors.…Defendants

¶12

Dr. Birendra Saraf, a/w Mr. Aditya Shiralkar, Mrs. Dipali Khare i/b
M/s. Shiralkar & Co., for the Plaintiffs.
Mr. S. Malik, for the Defendants Nos. 1 to 4.

¶13

CORAM: G.S. PATEL, J DATED: 2nd March 2015

¶14

PC:-

¶15

1.Notice of Motion No. 981 of 2914 is filed by the Plaintiffs
while Notice of Motion No. 22 of 2015 is filed by Defendants Nos.
1 to 4.

¶16

1 of 7

¶17

42-NMS-981-14+.DOC

¶18

2.Briefly the dispute pertains to a plot of land with a ground
and three floor structure known as Bijlani Bhawan at 738, Khar Pali
Road, TPS-III, Bandra, Mumbai. The suit seeks a partition of this
property. The property is admittedly is HUF property. The 1st
Plaintiff is the wife of one Manohar Bijlani, one of the four children
of one Girdharilal Bijlani. His four children are Manohar, Chandru
(Defendant No. 4), Kumar (Defendant No. 5) and Gul. Defendant
No. 2 is the wife of Chandru and Defendants Nos. 3 and 4 are their
children. Defendants Nos. 6 and 7 are the children of Kumar
(Defendant No. 5) and Defendants Nos. 9 and 10 are the children
of Defendant No. 8, the widow of Gul Bijlani. Girdharilal had two
borthers, Chellaram and Kamal. Their father was one Diwan Tota
Singh.

¶19

3.Plaintiff No. 2 has after the filing of the suit purchased the
shares of Defendants Nos. 5 to 7. The Plaintiffs are thus 50%
owners of the suit property. Defendants Nos. 1 to 4 have a 25%
share in that property; and Defendants Nos. 8 to 10 have the
remaining 25%.

¶20

4.The Plaintiffs are permanent residents of Delhi. Defendants
Nos. 1 to 4 occupy premises admeasuring about 1500 sq.ft. on the
3rd floor and Defendants Nos. 8 to 10 occupy about 900 sq.ft on the
2nd floor of the building.

¶21

5.The dispute in these two Motions relates to Flat No. 4 (650
sq. ft.) on the first floor and Flat No. 2 on the ground floor of Bijlani
Bhawan.

¶22

2 of 7

¶23

42-NMS-981-14+.DOC

¶24

6.Briefly stated the Plaintiffs’ ask that they be permitted to
occupy Flat No. 4 on the first floor, this supposedly having been
recently vacated by its erstwhile tenants, Chandrika and Prakash
Ahuja. The Plaintiffs say that the 1st Plaintiff wishes to move from
Delhi to Mumbai since the cold weather in Delhi does not suit her
health. The Plaintiffs have no other residence in Mumbai.

¶25

7.Defendants Nos. 1 to 4 , on the other hand, claim that this
relief is sought by the Plaintiffs only to harass those Defendants.
Defendants Nos. 1 to 4 are indeed occupying premises of about
1500 sq. ft on the 3rd floor. These are two families living in a single
accommodation. They have need for the premises on the 1st floor
(Flat No. 4) for residence as also of Flat No. 2 on the ground floor
where Defendant No. 3, a Medical Practitioner proposes to start a
medical care centre.

¶26

8.Dr. Saraf, learned Counsel for the Plaintiffs, says that
Defendants Nos. 1 to 4 are undeserving of any relief. They allege
that Defendants Nos. 1 to 4 violated interim orders by taking
possession of premises and occupying these despite orders of the
Court and undertakings given to the Court that they would not do
so.

¶27

9.Mr. Malik, learned Advocate for Defendants Nos. 1 to 4, is at
some pains to point out that it is his clients who have spent huge
amounts on maintaining the building from 1960 onward. While
Defendant No.1 has spent consistently on maintenance and
improvements, nothing has been contributed by the Plaintiffs and
the other Defendants. The 1st Defendant has also been pursuing

¶28

3 of 7

¶29

42-NMS-981-14+.DOC

¶30

legal action against various tenants. In this respect, Mr. Malik is
correct, for it is undoubtedly a matter of record that it was the 1st
Defendant who filed eviction suits against the original tenants of
Flat No. 2 on the ground floor and Flat no. 4 on the first floor. Both
these litigations appears to have been settled, but at a very late stage
in the proceedings. Mr. Malik also points out that Flat No. 2 has
remained locked for nearly two years and requires to be opened to
be cleaned. Under a previous order of the Court, the key to Flat
No.2 has been kept in the custody of the Court, but none has
attended to its cleaning or maintenance.

¶31

10.I have considered carefully the rival contentions of the
parties. It seems to me that Mr. Malik is correct at least in one
significant respect and that is that it is his client who has spent
throughout on the care and maintenance of the building and has
also spent a considerable amount for litigation in resuming
possession of tenanted premises. These litigations most certainly
have been expensive. The Plaintiffs do not have any material on
record to show that they have contributed anything at all to the
upkeep of building. Dr. Saraf’s only submission, as far as I can tell,
is that since Defendants Nos. 1 to 4 already have 1500 sq. ft. in their
possession on the third floor, equity demands that the Plaintiffs be
allowed to use 650 sq. ft. either on the ground floor or the first floor.

¶32

11.It rather seems to me that this is a very narrow approach
towards balancing equities. It completely overlooks the growing
needs of Defendants Nos. 1 to 4. After all there are two families
residing together on the third floor, and Mr. Malik’s submission
that Defendant No. 3 wishes to separate with his own family and

¶33

4 of 7

¶34

42-NMS-981-14+.DOC

¶35

also to start a medical care centre does not seem to me
unreasonable. Defendants Nos. 1 to 4 are entirely Mumbai based.
The Plaintiffs on the other hand seem to have settled in Delhi for
good, and seem to have done so a very long time ago. Whether or
not this was following a partition of a HUF as Mr. Malik suggests is
a matter to be decided after evidence. But the undeniable fact is that
the Plaintiffs have in fact moved their base and their home to New
Delhi. To say now that that the weather in Delhi does not any
longer suit Plaintiff No. 1 seems to me to be an argument for
convenience rather than a submission founded in fact.

¶36

12.It is not possible in these circumstances to accept the plea of
the Plaintiffs. Indeed the second prayer to the Plaintiffs’ Notice of
Motion No. 981 of 2014 is one that, in my view, Mr. Malik correctly
describes as a dog in the manger attitude; for the alternative prayer
by the Plaintiff is that the keys of flat No. 4, possession of which
was secured by Defendant No. 1 following a long, expensive and
bitter litigation should be deposited in this Court. In short the
approach of the Plaintiffs seem to be that if they cannot have flat
No. 4, neither should Defendants Nos. 1 to 4 irrespective of how
genuine their need.

¶37

13.The Plaintiffs’ Notice of Motion No. 981 of 2014 is
dismissed with no order as to costs.

¶38

14.It seems to me self-evident that allowing premises to remain
locked indefinitely can only cause damage to those premises and to
the surrounding areas. All premises should be used so that they are
well maintained and looked after. The request of Defendants Nos. 1

¶39

5 of 7

¶40

42-NMS-981-14+.DOC

¶41

to 4 is reasonable. Indeed, I must note Mr. Malik’s candour in
stating that his clients were in error in occupying the premises
without leave of the Court. Today, by his Motion it is that very
leave which Defendants Nos. 1 to 4 seek.

¶42

15. Hence the following order:

¶43

(a)The keys of flat No. 2 on the ground floor deposited
with the Court pursuant to the order dated 29th
December 2012 are to be handed over to Defendants
Nos. 1 to 3. Defendants Nos. 1 to 3 will clean this flat at
their cost and expense. They will carry out such
necessary non-structural repairs that are necessary to
put that flat into habitable condition. These too will be
done at their own costs and they will not demand
reimbursement of any of these costs at any time.

¶44

(b) Defendant No. 3 is permitted to use flat No. 2 for the purposes of medical care centre, subject to all applicable costs, regulations and permissions.

¶45

(c) Defendant No. 3 is also permitted to use flat No. 4 on the first floor for his residential use along with his family.

¶46

16.Defendants Nos. 1 to 4 are put to notice that this is an ad-hoc
interim arrangement pending the hearing and final disposal of the
suit. At the time of final disposal of the suit, and in the event of a
division by metes and bounds, Flats Nos. 2 and 4 may not come to

¶47

6 of 7

¶48

42-NMS-981-14+.DOC

¶49

the share of Defendants Nos. 1 to 4. By virtue of this interim and
ad-hoc arrangement no rights or equities are created in favour of
Defendants Nos. 1 to 4, nor are they entitled to claim any title,
equities or rights on that basis at any time. The present order is
without prejudice to the rights and contentions of both sides.

¶50

17.Notice of Motion No. 22 of 2015 is disposed of in these
terms with no order as to costs.

¶51

18.Dr. Saraf applies for a stay of this order. Stay refused.

¶52

(G. S. PATEL, J.)

¶53

7 of 7

Smt. Saroj M. Bijlani and 2 Ors. v. Chandru G. Bijlani and 9 Ors.

Case brief

What is this about?

What did the court decide?

Smt. Saroj M. Bijlani and 2 Ors. v. Chandru G. Bijlani and 9 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Shivprasad Ramkhilavan Gupta Vs Chandulal Ramkhilavan Gupta and Anr.

Kamal Shyam Harne Vs Rangarao Dnyanu Harne and Anr.(Caveator) and Revati a. Gaikwad(Applicant)

Chetna Mahavir Shah Vs Dhanvi Mahavir Shah and Anr.

Shantibhai Ranchodbhai Tank Vs Gangabhai Mephabhi Tank

Kaizer Taher Mithaiwala Vs Shamima Taher Mithaiwala and 4 Ors.

Zoeb Ali Hasanali and 4 Ors. Vs Zaitoon Taherali Hasanali Nalwala 2 Ors.