AI Drafter 
TaxTMI 
TaxTMI 
2013 (2) TMI 722
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....ntiff so as to restrain the defendant no.1, her parents, agents, representatives, assignees, associates etc. from creating disturbance in the peaceful possession and occupation of the plaintiff's self-acquired property bearing no. B-197, Greater Kailash, Part-1, New Delhi. In prayer Para (b) instead of claiming permanent injunction the plaintiff has wrongly claimed mandatory injunction and such inadvertent mistake on the part of the plaintiff can be ignored. 3. The main allegation of the plaintiff in the present suit is that he is the sole and absolute owner of the property bearing no. B-197, Greater Kailash, Part-1, New Delhi consisting of ground and first floor. It is also the case of the plaintiff that the said property was purchased by him vide sale deed dated 10.8.1971 through his own funds and since then the plaintiff and his wife are residing in the same property. It is also the case of the plaintiff that he and his wife aged around 80 years and 74 years respectively are suffering from various old age ailments. It is also the case of the plaintiff that the defendant no.1 is of a very violent nature and she has made the life of the plaintiff and his wife a living hell.....
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.... his family members in false and frivolous cases. It is also the case of the plaintiff that on 22.9.2011, the defendant no.1 abused the plaintiff and as a result whereof the plaintiff had to be rushed to the Doctor and he was strictly advised by the Doctor to avoid any kind of stress and similarly on 28.9.2011 the defendant no.1 had abused the wife of the plaintiff with filthy language, consequently she was rushed to the Doctor and the Doctor advised that the environment of the plaintiff's wife should be changed. Similar incident as per the plaintiff had also taken place on 31.10.2011. It is also the case of the plaintiff that the wife of the plaintiff has been diagnosed to be suffering from a serious heart problem and because of the extreme stress her sugar level had also shot up to an alarming proportion. With these allegations, the plaintiff prayed that the defendant no. 1 be directed to vacate the suit property so that the plaintiff and his wife are able to lead the evenings of their lives peacefully without any stress or trauma. 4. In the original suit the plaintiff did not seek the relief of mandatory injunction so as to seek vacation of defendant No.1 from the subject....
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....ce her to stay in the premises which is exclusively owned by the plaintiff. It was also submitted that defendant No.2 had given many proposals to defendant No.1 to reside with him at the rented accommodation or to reside in some other alternative accommodation at par with the rented accommodation of defendant No.2 or to accept an amount to the tune of Rs. 30,000 towards the monthly rent for an accommodation to be selected by her but none of these offers have been accepted by defendant No.1. Counsel further submitted that the legal position is now well settled that daughter-in-law has no legal right whatsoever to reside in the property owned by her parents-in-law and parents- in-law have no obligation to provide a residence to their daughter-in-law. In support of his arguments counsel for the plaintiff has placed reliance on the following judgments:- 1. S.R. Batra and Anr. v. Taruna Batra, (2007) 3 SCC 2. Kavita Chaudhari v. Eveneet Singh and Anr., 2012 (130) DRJ 83 3. Neetu Mittal v. Kanta Mittal, 152 (2008) DLT 691 4. Umesh Sharma v. State, 2010 (115) DRJ 88 5. Kulwant Singh v. Laljee Kent( DR.) and ors., 162 (2009) DLT 625 6. ....
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....esent suit in favour of the plaintiff and therefore the said relief at the interim stage is impermissible in terms of the settled legal position. 11. The next argument advanced by counsel for defendant No.1 was that the suit property is an ancestral property and being ancestral property it falls in the category of 'shared household' in terms of Section 2(s) of the Domestic Violence Act, 2005. Counsel also submitted that the children of the defendants have every right to reside in the suit property under the Hindu Mitakshara Law. 12. Counsel further argued that the allegations levelled by the plaintiff in the present suit are infact reproduction of the allegations levelled by the husband-defendant No.2 in other proceedings i.e. divorce case and a petition filed by him under Guardianship and Wards Act. 13. Counsel also argued that the amended application under Order 39 Rule 1 & 2 CPC is not maintainable in the eyes of law as the amendment envisaged under Order 6 Rule 17, CPC relates to the amendment of pleadings, which includes the plaint and the written statement, and not the amendment of applications under Order 39 Rule 1 and 2 filed by the parties. 14. Counsel ....
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.... the plaintiff has also placed on record various documents viz. voter ID card and electricity bills etc. Counsel further submitted that in the given facts of the present case this court has abundant power to grant the relief of interim mandatory injunction. Counsel also submitted that the grant of interim mandatory injunction cannot be confined only to restore the last uncontested status quo of the property. counsel also argued that the proposal given by defendant No.1 to permit her to reside on the first floor of the property is not a workable solution as the two floors of the suit property are inextricably inter- connected through a common entrance, internal staircase and the common kitchen which is located at the ground floor and even with such an arrangement the verbal and physical abuse and harassment at the hands of the defendant no. 1 would still be persistent. 19. I have heard learned counsel for the parties at considerable length and given my anxious consideration to the arguments advanced by them. I have also carefully perused the material placed on record by them. 20. Through the present application the plaintiff by way of interim mandatory injunction is seeking di....
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....81, Beaman, J. was of the view that the court's in India have no power to issue a temporary injunction in a mandatory form but Shah, J. who constituted a Bench in that case did not agree with Beaman, J. in this view. However, in a later Division Bench judgment in Champsey Bhimji & Co. v. The Jamna Flour Mills Co. Ltd., two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court. In M. Kandaswami Chetty v. F. Subramania Chetty , a Division Bench of the Madras High Court held that court's in India have the power by virtue of Order 39 Rule 2 of the CPC to issue temporary injunction in a mandatory form and differed from Beaman's view accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. (supra). In Israil v. Shamser Rahman, it was held that the High Court was competent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the Court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of th....
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....exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion." 22. It would be seen from the aforesaid observation of the Apex Court in the said case that the relief of interlocutory mandatory injunction is granted generally to preserve or restore the status quo of the last contested status. The expression 'generally' in the above observation gives a clear indication that the grant of interim mandatory injunction does not only confine to restore the status quo of the last contested status. The Apex Court in the said judgment further observed that being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest on the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances of each case. The Court also observed that there may exist exceptional circumstances for the grant or refusal of such injunction and it would ultimately depend on the facts of each case for the Court to exercise the equitable jurisdiction in favour of one party in preference to the other party. 23....
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....d in 152 (2008) DLT 691 and the relevant Paras of the same are reproduced as under:- "8. ... 'Matrimonial home' is not defined in any of the statutory provisions. However, phrase "Matrimonial home" refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have al....
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.... undoubtedly has does not mean right to reside in a particular property and it is only in that property in which the husband has a right, title or interest that wife can claim residence and that too if no other commensurate accommodation is provided by the husband. The following paragraphs from the said judgment are reproduced as under:- "40. ...the concept of maintenance, insofar as a Hindu lady is concerned, necessarily encompasses the provision for residence. Furthermore, the provision for residence may be made either by giving a lump sum in money or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Insofar as Section 17 of the said Act is concerned, a wife would only be entitled to claim a right of residence in a "shared household" and such a household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded a....
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....rate property. 17. At omega, this Court would like to observe that with a view to mitigate the oppression and inequality suffered by the fairer sex in this country from times immemorial; various woman friendly laws have been enacted so as to empower the women. It is a bitter truth that where on one hand these progressive laws have led to amelioration and advancement of the cause of the woman in this country, at the same time on the other hand these liberalized statutes have been flagrantly misused. The right of the woman to her matrimonial home is one such right which has been brought on the statute book to protect the woman from being left in lurch at the hands of the in-laws. However one cannot or may I say should not shy away from the hard hitting reality that it is not always the daughter in law who is berated but at times the in laws who are at the receiving end of the daughter in law's cantankerousness. It should not be for a moment consigned to oblivion that the parents in law have every right to live in peace in their own property and the right to property vested in them cannot be snatched away and used as a tool to harass them. In the facts of the case at hand....
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.... can only be as against the husband and not against the father-in-law or mother-in-law. However, it is quite discernible that the spouses in wedlock, are obliged to take care of each other and in case of any inter-se dispute; one can claim his right with respect to maintenance only against the other and not against the other family members. With the transient course it has been observed that with the advent of various women friendly laws, empowering the women with equal rights as that of a man/ husband, the remedy of women to ask for maintenance or to claim her right in the residence in a commensurate property is only restricted to her husband and not against her parents in law. A woman is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. This means that she can assert her rights, if any, only against the property of her husband and cannot claim a right to live in the house of her husband's parents without their wishes and caprice. Law permits a married woman to claim maintenance against ....
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....ed accommodation. The defendant no. 1, being herself not happy with the conduct of her in-laws and husband, can avail this facility and shift to another equally good accommodation for which her husband is ready to bear the monthly rental expenses. By such an arrangement, in my opinion, interest of both the parties would be secured at such an interim stage. 33. Counsel for the defendant also raised a plea that plaintiff has played serious fraud upon the Court by not disclosing about having a residential house at Calcutta. Counsel also placed reliance on documents placed on record which clearly prove that the residence of the plaintiff is at Calcutta. Counsel also submitted that the plaintiff by having his residential address at two places has violated the relevant provisions of Representation of Peoples Act, 1951. Undeniably, it would have been better, had the plaintiff disclosed about having his residence at the Calcutta property too, as for claiming equitable discretionary relief one must place all the material and relevant facts before the court. Nevertheless, it has not been denied by defendant No.1 that plaintiff has been residing in the property bearing number B-197, Greate....