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2017 (5) TMI 1726
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....ated 7th July, 2016 of High Court of Judicature at Bombay in Writ Petition No. 1550 of 2016 by which the writ petition filed by the Appellant questioning the judgment and order of 5th Additional Judge, Small Causes Court dated 5th November, 2014 and order passed by the District Judge, Pune dated 17th December, 2015 was dismissed. 4. Necessary facts of the case need to be noted for deciding the issue raised are: The Appellant got married with one Abhimanyu who is son of the Respondent on 10.02.2000. The Appellant started residing in the suit flat No. 4, 45/4, Arati Society Shilavihar Colony, Paud Fata, Pune since 2004 alongwith her husband. The flat was allotted to the Respondent by the Society in the year 1971. On 13th June, 2011, the husband of Appellant left her at the suit flat and shifted to live with his parent at Mrutunjay Society. A daughter, namely, Ishwari was born from the wedlock of the Appellant and the Abhimanyu, who was about 9 years in the year 2014. The Respondent along with his wife had been residing in another flat nearby. The Appellant was treated with cruelty by her husband and other members of the family. A suit for divorce on the basis of cruelty b....
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....aiming through him may kindly be restrained by an injunction from entering in the suit flat as per Section 19 of DV Act. v. The Plaintiff, his agents, representatives, relatives or anyone claiming through him may kindly be restrained by an injunction from alienating, disposing off, encumbering the suit flat and/or creating any of third party right, title and interest in the suit flat, or renouncing the rights in the suit flat as per Section 19 of DV Act. vi. Any other order in the interest of justice and equity may kindly be passed in favour of the Defendant and oblige. 6. In the counter claim the Appellant prayed for an order of residence in suit flat Under Section 19 of the Act, 2005. 7. The Respondent who was the Plaintiff in the suit has filed an application dated 14.07.2014 Under Section 9A (Maharashtra Amendment) of the Code of Civil Procedure, 1908. In the application, the Respondent claimed that declaration sought by the Appellant in the suit is not maintainable, hence, a preliminary issue Under Section 9A of Code of Civil Procedure be framed. The application was objected by the Appellant by filing objection on 16.08.2014. The Appellant claimed that ....
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....vil Court, Family Court and Criminal Court. He submits that. Court of Provincial Small Cause being a civil Court remedy Under Section 26 is fully available to the Appellant. 10. Shri Vinay Navare, learned Counsel for the Respondent refuting the submission of learned Counsel for the Appellant contends that counter claim of the Appellant is clearly barred by Section 15 read with Schedule II of the Act, 1887. He has referred to Item Nos. 11, 17 and 19. He submits that Provincial Small Cause Court is a Court which has limited jurisdiction. Referring to provisions of Order L of Code of Civil Procedure he submits that only limited provisions of Code of Civil Procedure have been made applicable which indicates that no substantive issue can be decided by Provincial Small Cause Court. Learned Counsel further made reference to Section 12 and Section 18 of Act, 1887 by which, according to him, the Registrar, who is a Chief Ministerial Officer of the Court, is empowered to try certain suits which the Judge, Provincial Small Cause Court by general or special order directs. He submits that power given to Registrar to decide certain issues also militate against the idea that substantive issues....
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....of Court of Small Causes. For the purposes of this case Item Nos. 4, 11, 17 which may be relevant for the present case are extracted below: (4) a suit for the possession of immoveable property or for the recovery of an interest in such property; (11) a suit for the determination or enforcement of any other right to or interest in immoveable property; (17) a suit to obtain in injunction; 16. The submission which has been pressed by the learned Counsel for the Respondent is that the High Court for holding that Judge, Small Causes Court has no jurisdiction has relied on Section 15 read with Clause (11) of Second Schedule. In paragraph 14 of the judgment, the High Court gives the following reasoning for deciding against the Appellant: 14. As noted earlier, clause (11) of the Second Schedule of P.S.C.C. Act which is one of the excepted categories does not empower the Small Causes Court to entertain and try the suit for the determination or enforcement of any other right to or interest in immovable property. In the counter claim the Defendant has prayed for residence orders as provided in Section 19 of D.V. Act as also for declaration that the suit ....
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....rder is violated, it assumes the character of criminality. In order to demonstrate it, we may reproduce the introduction as well as relevant portions of the Statement of Objects and Reasons of the said Act, as follows: Introduction The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family, The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence Under Section 498A of the Indian Penal Code. In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society the Prote....
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....der in favour of an aggrieved person who is subjected to domestic violence. 19. Section 26 of the Act is a special provision which has been enacted in the enactment. Although, Chapter IV of the Act containing Section 12 to 29 contains the procedure for obtaining orders of reliefs by making application before the Magistrate whereas steps taken by the Magistrate and different categories of reliefs could be granted as noted in Section 18 to 22 and certain other provisions. Section 26 provides that any relief available Under Section 18 to 22 may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the Respondent. Section 26 is material for the present case since the Appellant has set up her counter claim on the basis of this Section before the Judge, Small Causes Court. Section 26 is extracted below: 26. Relief in other suits and legal proceedings.- (1) Any relief available Under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the Respondent whether such proceeding was in....
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....ve noted above the reasons given by the High Court holding that Provincial Small Cause Court cannot entertain the counter claim filed by the Defendant who is Appellant before us. 24. The High Court refers to Item No. 11 of Second Schedule which is "a suit for the determination or enforcement of any other right to or interest in immovable property". It appears that the High Court had taken the view that the right Under Section 26 of Act, 2005 as claimed by the Appellant involves the determination or enforcement of any right to or interest in immovable property. 25. The Act, 1887 has been amended in the State of Maharashtra by Maharashtra Act 24 of 1984 w.e.f. 1.1.1985. Chapter IVA has been inserted in Act, 1887 containing Section 26, 26A, 26B and 26C. Section 26 is quoted as below: 26. Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except those to which other Acts apply, to lie in Court of Small Causes.-- (1) Notwithstanding anything contained elsewhere in this Act, but subject to the provision of Sub-section (2), the Court of Small Causes shall have j....
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....984 has been brought by inserting Section 26 and by deleting Item No. 4 of Second Schedule only to make suit between licensor and licensee to be filed before the Judge, Small Causes Court. The suit filed by the Plaintiff is virtually a suit for possession of the suit flat from the Appellant who is occupying the same. Plaintiff alleged in the plaint that the gratuitous licence of the Appellant has been terminated on 23.01.2013, hence, Appellant is not entitled to use the flat and is liable to remove her belongings. 29. "Notwithstanding anything contained elsewhere in this Act" as used in Section 26(1) of Act, 1887 are words of expression of the widest amplitude engulfing the contrary provisions contained in the Act. The suit in question has been filed by the Plaintiff for enforcement of his right as a licensor after allegedly terminating the gratuitous licence of the Appellant. On a plain reading Item No. 11 of Schedule II covers determination or enforcement of any such right or interest in immovable property. But by virtue of Section 26 Sub-section (1) as applicable in State of Maharashtra, Item No. 11 of Schedule 2 has to give way to Section 26(1) and a suit between licensor an....
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....raph 18: 18. As a question of law is raised before this Court, the Court has restricted its finding only to that extent and answered that the relatives of the husband being Respondents Under Section 2(q) of the D V. Act can be made party Respondents before the Family Court if the proceedings specified Under Section 26 of the D.V. Act are preferred. 34. In the present case, the issue which is raised is entirely different and pertains to the jurisdiction of Small Causes Court to entertain counter claim filed by the Appellant seeking an order of residence. The above judgment is not relevant for answering the issue raised in the present case. 35. Learned Counsel for the Appellant has placed reliance on judgments of this Court in Allahabad Bank v. Canara Bank 2000 (4) SCC 406; Solidaire India Ltd. v. Fair Growth Financial Services Ltd. and Ors. 2001 (3) SCC 71 and Bank of India v. Ketan Parekh 2008 (8) SCC 148 for the proposition that a special Act overrides a general Act and when a conflict is found in two special Acts, the special Act latter in point of time has to prevail. He further contends that dominant purpose of the Act has to be looked into while deciding the que....