TaxTMI 
TaxTMI 
2020 (10) TMI 1379
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.... dated 18.12.2019 in RFA No. 381/2019 by which judgment Delhi High Court has set aside the decree granted in favour of the Plaintiff dated 08.04.2019 Under Order XII Rule 6 of Code of Civil Procedure, decreeing the suit filed by the Plaintiff for mandatory and permanent injunction. The High Court after setting aside the decree of the Trial Court has remanded the matter back to the Trial Court for fresh adjudication in accordance with the directions given by the High Court. The Plaintiff aggrieved by the judgment of the High Court has come up in this appeal. 4. We may notice the brief facts of the case and relevant pleadings of the parties for determining the questions which have arisen for consideration in this appeal. 5. The Appellant by deed dated 12.01.1983 purchased property bearing No. D-1077, New Friends Colony, New Delhi. The son of the Appellant, Raveen Ahuja was married to the Respondent, Sneha Ahuja on 04.03.1995. After marriage the Respondent started living in the first floor of the house No. D-1077, Friends Colony, New Delhi along with her husband. There being marital discord between Raveen and Sneha, in July, 2014, Raveen moved out of the first floor and started ....
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.... with the Defendant on 04.03.1995. The Plaintiff further pleaded that wife of the Plaintiff has been subjected to various threats and violence in the hands of the Defendant on several occasions. The mention of the Divorce Petition filed by Raveen was made in the plaint and it was pleaded that the Defendant as a counter blast has filed the complaint case under the Protection of Women from Domestic Violence Act, 2005 in which interim order directing the Plaintiff not to alienate and not to dispossess the Defendant without order of the competent court has been passed. 7. Plaintiff claimed that he and his wife has become victim of domestic violence on the part of the Defendant. Plaintiff pleaded that the status of occupation of Defendant as a daughter-in-law during subsistence of marriage with the son could be said to be permissive in nature and Defendant is not entitled to claim a right of residence against the Plaintiff, i.e., her father-in-law who has no obligation to maintain her during the lifetime of her husband. Plaintiff in the suit prayed for decree for mandatory injunction against the Defendant to remove herself and her belonging from the first floor of the property and a ....
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....lence case admitted the Plaintiff to be the owner of the suit property, hence, decree of mandatory injunction in favour of the Plaintiff be granted. 11. The Defendant filed an application on 23.09.2017 Under Order XI Rules 12 and 14 Code of Civil Procedure for production of documents. In paragraph 7 of the application, the Defendant referred to various documents which according to the Defendant were relevant for deciding the suit. By the application documents were sought to be produced by the Plaintiff. The Trial Court vide its order dated 20.03.2018 directed the Plaintiff to file an affidavit and documents as sought for in the application Under Order XI Rule 13 which are in his custody with advance copy to the opposite party. A reply was filed by the Defendant on 15.02.2018 to the application filed by the Plaintiff Under Order XII Rule 6 Code of Civil Procedure. The Defendant again reiterated that the shared household was acquired by the Plaintiff through joint-family business and the house is not his self-acquired property. 12. The Plaintiff also filed an affidavit and documents Under Order XI Rule 13 Code of Civil Procedure in compliance of the order of the Trial Court dat....
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....ed by daughter-in-law upon the civil suit. The High Court, however, held that suit for possession instituted cannot be said to be non-maintainable since necessary answer falls within the term "procedure established by law". The High Court has further observed that question is whether the suit could be simply decreed by the Trial Court on the basis of the title without weighing the effect of the statutory right in favour of the Appellant. The High Court in paragraph 33 made following observation: 33. ...............Thus, I find that the DV Act has aspired to bring in a sea change in the rights of persons affected by domestic violence by ensuring that irrespective of the ownership of the suit premises where the aggrieved person resided, she would still retain the right to reside therein as long as she was able to prove that she had endured domestic violence while being in a domestic relationship with the owner of such premises. 16. The High Court opined that the Trial Court erroneously proceeded to pass decree Under Order XII Rule 6 Code of Civil Procedure by not impleading the husband and failing to appreciate the specific submission of the Appellant while admitting the ....
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....less and that a shelter is duly secured for the Appellant, during the subsistence of her matrimonial relationship. (vi) This exercise of directing the Appellant to vacate the suit premises by granting her alternate accommodation will be completed expeditiously and not later than 6 months from today. 17. The Plaintiff-Appellant aggrieved by the judgment of the High Court dated 18.12.2019 has come up in this appeal. 18. We have heard Shri Prabhjit Jauhar, learned Counsel for the Appellant. Shri Nidhesh Gupta, learned Senior Counsel has appeared for the Respondent. We have also heard Ms. Geeta Luthra, learned Senior Counsel and Shri Jayant Bhushan, learned Senior Counsel in the connected SLP (C) No. 9415 of 2020 in which parties are stated to have entered into a settlement. 19. Shri Prabhjit Jauhar, learned Counsel for Appellant contends that suit property which is exclusively owned by the Appellant is not a shared household. The son of the Appellant, Raveen has no right in the property and the son as well as Respondent-daughter-in-law were only gratuitous licencees of the Appellant. The Appellant purchased the property in the year 1983, at that time the son of the A....
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....property being joint family property. Shri Jauhar submits that the High Court has not adverted to facts of different appeals and all appeals were decided by a common judgment without referring to evidence and pleadings in each appeal separately. The finding of the Trial Court has not been overruled by the High Court in the Appellant's case. Shri Jauhar further submits that husband is not a necessary party in a suit filed by the father-in-law. Shri Jauhar submits that the Trial Court has rightly decreed the suit Under Order XII Rule 6 Code of Civil Procedure relying on the admission made by the Respondent in her application Under Section 12 of the Act, 2005. The High Court has not followed the binding judgment of this Court in S.R. Batra v. Taruna Batra which was binding on the High Court Under Article 141 of the Constitution of India. Shri Jauhar submits that rights of wife in other statutes like Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 are only against the husband. 22. Shri Nidhesh Gupta, learned Senior Counsel appearing for the Respondent refuting the submission of the learned Counsel for the Appellant supports the judgment of the High Court. S....
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....eld by this Court. Shri Gupta further submits that the judgment of this Court in S.R. Batra case does not lay down correct law. He submits that the definition of "shared household" has not been correctly analysed in S.R. Batra case. The definition of Respondent does not include only husband. The relatives of the husband who have treated the aggrieved person with domestic violence can be arrayed as Respondent. There is no reason to extend definition of shared household only to property in which the husband has a share. It is submitted that S.R. Batra has not appreciated that second part of the definition of shared household is merely illustration and not exhaustive. S.R. Batra also erred in holding that alternative accommodation Under Section 19 can only be enforced against the husband. Shri Gupta submits that the judgment of S.R. Batra does not correctly interpret provisions of Act, 2005. Referring two subsequent judgments of this Court, namely Hiral P. Harsora and Ors. v. Kusum Narottamdas Harsora and Ors. (2016) 10 SCC 165, and Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi, (2017) 14 SCC 373, Shri Gupta submits that the above two judgments have taken a view contrary to law la....
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....de of Civil Procedure? (4) Whether, when the Defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein, the Trial Court could have decreed the suit of the Plaintiff without deciding such claim of Defendant which was permissible to be decided as per Section 26 of the Act, 2005? (5) Whether the Plaintiff in the suit giving rise to this appeal can be said to be the Respondent as per definition of Section 2(q) of Act, 2005? (6) What is the meaning and extent of the expression "save in accordance with the procedure established by law" as occurring in Section 17(2) of Act, 2005? (7) Whether the husband of aggrieved party (Defendant) is necessary party in the suit filed by the Plaintiff against the Defendant? (8) What is the effect of orders passed Under Section 19 of the Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction? 28. Before we consider the questions as noted above, we need to notice the Statutory Scheme of the Protection of Women from Domestic Violence Act, 2005. 29. The progress of any society depend....
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....mily are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner. XXXXXXXXXXXXXXXXXX (iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate. XXXXXXXXXXXXXXXXXXX 33. The Statement of Objects and Reasons refers to three International Conventions where recommendations were made to the parties States to take measures including Legislation to protect women against violence including occurring within the family. General Recommendation No. XII of the United Na....
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....ial home, was included in Matrimonial Homes Act, 1967. Section 1(1) of the Act provides: Protection against eviction, etc., from matrimonial home of spouse not entitled by virtue of estate, etc., to occupy if 1. (1) Where one spouse is entitled to occupy a dwelling house by virtue of any estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupation, and the other spouse is not so entitled, then, subject to the provisions of this Act, the spouse not so entitled shall have the following rights (in this Act referred to as "rights of occupation")-- (a) if in occupation, a right not to be evicted or excluded from the dwelling house or any part thereof by the other spouse except with the leave of the court given by an order under this section; (b) if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling house. 36. By subsequent enactment, Matrimonial Homes Act, 1983 although Matrimonial Homes Act, 1967 was repealed, same protection was continued to occupy the matrimonial home and the said right was continued by virtue of Section 1(1), which was to the ....
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....nomenon in its entirety. It is treated as an offence Under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was 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. It is for this reason, that the Scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality..................... 39. The Act, 2005 is a further step to secure social justice by legislation. There has been several earlier measures for protection of women like Section 125 Code of Criminal Procedure and 498-A of India Penal Code. Justice Krishna Iyer in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., (1978) 4 SCC 70 noted the objectives of enacting Section 125 Code of Criminal Procedure in following words in paragraph 9: 9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15....
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....e of the husband or the male partner; 43. The words "adult male" as occurring in Section 2(q) has been struck down by this Court in Hiral P. Harsora and Ors. v. Kusum narottamdas Harsora and Ors., (2016) 10 SCC 165. Consequently, the Respondent can also be a female in domestic relationship with the aggrieved person. The next definition, which is relevant to be noticed is Section 2(s), which defines shared household. Shared household is defined in following words: (s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the Respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the Respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the Respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the Respondent is a member, irrespective of whether the Respondent or the aggrieved person has any right, title or interest in the shared household; 44. Section 3 defines "domestic vi....
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....hip shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the Respondent save in accordance with the procedure established by law. 46. Section 18 deals with protection orders. Section 19 deals with residence orders. Section 20 deals with monetary reliefs. Section 23 deals with power to grant interim and ex parte orders. Section 26 deals with relief in other suits and legal proceedings. 47. After briefly noticing the outline of Act, 2005, we, now, proceed to consider the questions noted above. Questions Nos. 1 and 2 48. Both the above questions being inter-related are being taken together. We may recapitulate the facts of the present case in reference to shared household. The suit property was purchased by Appellant in the year 1983 in his name. The Respondent got married to the son of Appellant on 04.03.1995 and after marriage she was living in first floor of suit property. Till July, 2004, the husband of Respondent also lived in first floor whereafter due to marital discord, he sh....
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.... in Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other. 50. We may notice another judgment of this Court in Pioneer Urban Land and Infrastructure Limited and Anr. v. Union of India and Ors., (2019) 8 SCC 416 where this Court had occasion to consider both the expressions, i.e., "means and includes". In paragraph 82, this Court laid down: 82. ...In fact, in Jagir Singh v. State of Bihar [(1976) 2 SCC 942], SCC paras 11 and 19 to 21 and Mahalakshmi Oil Mills v. State of A.P. [(1989) 1 SCC 164], SCC paras 8 and 11 (which has been cited in P. Kasilingam [P. Kasilingam v. PSG College of Technology, 1995 Supp (2) SCC 348]), this Court set out definition Sections where the expression "means" was followed by some words, after which came the expression "and includes" followed by other words, just as in Krishi Utpadan Mandi Samiti case [Krishi Utpadan Mandi Samiti v. Shankar Industries, 1993 Supp (3) SCC 361 (2)]. In two other recent judgments, Bharat Coop. Bank (Mumbai) Ltd. v. Employees Union [(2007) 4 SCC 685], SCC ....
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....mmissioner of Stamps which is usually referred to on the use of "include" as a word of extension, is followed by these lines: But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions. 52. Next judgment relied by Shri Bhushan is Karnataka Power Transmission Corporation and Anr. v. Ashok Iron Works Private Limited, (2009) 3 SCC 240. In the above case also submission was made before this Court that in the definition of person given in Section 2(m) of Consumer Protection Act, the expression "includes" should be read as "means". This Court laid down that interpretation of a word or expression must depend on the text and the context. In paragraphs 14 to 17, following was laid down: 14. The learned Counsel also submitted that the word "includes....
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....en designed to mean "means". The setting, context and object of an enactment may provide sufficient guidance for interpretation of the word "includes" for the purposes of such enactment. 53. After noticing the ratio of above judgments, Section 2(s), which uses both the expressions "means and includes" and looking to the context, we are of the view that the definition of shared household in Section 2(s) is an exhaustive definition. The first part of definition begins with expression "means" which is undoubtedly an exhaustive definition and second part of definition, which begins with word "includes" is explanatory of what was meant by the definition. Shri Nidhesh Gupta, learned Senior Counsel for the Appellant submits that even if it is accepted that the definition of Section 2(s) is exhaustive, his case is fully covered in both the parts of the definition. 54. The use of both the expressions "means and includes" in Section 2(s) of Act, 2005, thus, clearly indicate the legislative intent that the definition is exhaustive and shall cover only those which fall within the purview of definition and no other. 55. Now, reverting back to the definition of Section 2(s), the definit....
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....use belonged to Appellant No. 2 and her son, i.e., husband of Respondent had no share. Husband had filed a divorce petition against Respondent whereas Respondent filed a criminal case Under Sections 406, 498A, 506 and 34 of Indian Penal Code. Respondent shifted to her parents' residence because of the dispute with her husband. She when later tried to enter the house, she found the main entrance locked hence, she filed suit No. 87 of 2003 to grant mandatory injunction to enable her to enter the house. The Trial Court granted temporary injunction in favour of the Respondent. The Appellant filed the appeal, which was allowed by dismissing the temporary injunction. Respondent filed a Writ Petition Under Article 227 of the Constitution, which was allowed by learned Single Judge holding that the Appellant is entitled to reside in the second floor as that was her matrimonial home. The Appellant aggrieved against the judgment of the High Court had filed an appeal. This Court in Paragraph 18 observed that since the house belongs to mother-in-law of the Respondent and does not belong to the husband, hence, she cannot claim any right to live in the said house. Following was observed in pa....
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....es merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd. 27. It is well settled that any interpretation which leads to absurdity should not be accepted. 28. Learned Counsel for the Respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's (sic) in-laws or other relatives. 29. As regards Section 17(1) of the Act, in our opinion the wife 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. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of Appellant 2, mother of Amit Batra. Hence it cannot be called a "shared ho....
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....ved person has lived in a domestic relationship alongwith the relatives of the husband shall become shared household, there will be number of shared household, which was never contemplated by the legislative scheme. The entire Scheme of the Act is to provide immediate relief to the aggrieved person with respect to the shared household where the aggrieved person lives or has lived. As observed above, the use of the expression "at any stage has lived" was only with intent of not denying the protection to aggrieved person merely on the ground that aggrieved person is not living as on the date of the application or as on the date when Magistrate concerned passes an order Under Section 19. The apprehension expressed by this Court in paragraph 26 in S.R. Batra v. Taruna Batra (supra), thus, was not true apprehension and it is correct that in event such interpretation is accepted, it will lead to chaos and that was never the legislative intent. We, thus, are of the considered opinion that shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use o....
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....ion of this Court in S.R. Batra v. Taruna Batra (supra) that definition of shared household in Section 2(s) is not very happily worded and it has to be interpreted, which is sensible and does not lead to chaos in the society also does not commend us. The definition of shared household is clear and exhaustive definition as observed by us. The object and purpose of the Act was to grant a right to aggrieved person, a woman of residence in shared household. The interpretation which is put by this Court in S.R. Batra v. Taruna Batra (supra) if accepted shall clearly frustrate the object and purpose of the Act. We, thus, are of the opinion that the interpretation of definition of shared household as put by this Court in S.R. Batra v. Taruna Batra (supra) is not correct interpretation and the said judgment does not lay down the correct law. 65. The learned Counsel for the Appellant has placed reliance on another Two Judge Bench judgment of this Court in Vimlaben Ajitbhai Patel v. Vatsalben Ashokbhai Patel and Ors., (2008) 4 SCC 649. In the above case, this Court had occasion to consider the provisions of Act, 2005. The question which came for consideration in the above case has been no....
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....and only his properties could be attached therefor but not of her mother-in-law. 67. In paragraph 27, this Court further held: 27. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share. 68. In paragraph 28, this Court noticed the judgment of this Court in S.R. Batra v. Taruna Batra (supra). 69. In the facts of the above case, this Court held that the High Court erred in cancelling the bail of the Appellants. Allowing the appeal, following directions were issued in paragraph 51 of the judgment: 51. Having regard to the facts and circumstances of this case we are of the opinion that the interest of justice shall be subserved if the impugned judgments are set aside with the following directions: (i) The property in question shall be released from attachment. (ii) The 3rd Respondent shall refund the sum of Rs. 1 lakh to the Respondent with interest @ 6% per annum. (iii) The amo....
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....by either of them in respect of which either the aggrieved person or the Respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the Respondent is a member, irrespective of whether the Respondent or the aggrieved person has any right, title or interest in the shared household (emphasis supplied). 17. It would not be out of place to notice here that the use of the term "Respondent" is unqualified in the definition nor is there any qualification to it Under Sections 12, 17 or 19. Therefore, there is no reason to conclude that the definition does not extend to a house which is owned by a mother-in-law or any other female relative, since they are encompassed under the definition of 'Respondent' Under Section 2(q). 72. The Division Bench of the Delhi High Court affirmed the judgment in Eveneet Singh v. Prashant Chaudhari of the learned Single Judge as noted above. In paragraph 14, the Division Bench laid down following: 14. It is apparent that Clause (f) of Sub-section 1 of Section 19 of the Act is intended to strike a balance between the rights of a daughte....
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....e definition of domestic relationship, as the brother is clearly a Respondent. In such a case too, if the widowed mother or sister is threatened with dispossession, they can secure reliefs under the Act, notwithstanding exclusive ownership of the property by the son or brother. Thus, excluding the right of residence against properties where the husband has no right, share, interest or title, would severely curtail the extent of the usefulness of the right to residence. 21. The other aspect, which this Court wishes to highlight, is that the 2005 Act applies to all communities, and was enacted "to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family". The right to residence and creation of mechanism to enforce is a ground breaking measure, which Courts should be alive to. Restricting the scope of the remedies, including in respect of the right to reside in shared household, would undermine the purpose of this enactment. It is, therefore, contrary to the scheme and the objects of the Act, as also the unambiguous text of Section 2(s), to restrict the application of the 200....
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....05. 76. We also need to notice several judgments of Delhi High Court and other High Courts, which have been relied by Shri Jauhar. The judgments of Delhi High Court relied by Shri Jauhar are: S. No. Particulars Citation 1. Deepika Kumar v. Medhavi Kumar and Ors. MANU/DE/3859/2015 2. Sardar Malkiat Singh v. Knawaljit Kaur and Ors. 168 (2010) DLT 521 3. Neetu Mittal v. Kanta Mittal 2009 AIR (Del) 72 4. Sudha Mishra v. Surya Chand Mishra 2012 (3) AD (Delhi) 76 5. Sangeeta v. Om Parkash Balyan and Ors. MANU/PH/1251/2015 6. Harish Chand Tandon v. Darpan Tandon and Anr. MANU/DE/3200/2015 7. Ekta Arora v. Ajay Arora and Anr. AIR 2015 (Del) 180 8. Smt. Saloni Mahajn v. Shri Madan Mohan Vig. 2014 SCC Online (Del) 4931 77. All these judgments of Delhi High Court relies on S.R. Batra v. Taruna Batra (supra). We having already held that judgment of S.R. Batra v. Taruna Batra (supra) insofar as it interpret the definition of shared household of Section 2(s) does not lay down the correct law, the above judgment of the High Court does not come to rescue of learned Counsel for the Appellant. Shri Jauhar has also....
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....mandatory injunction against the Appellant. The Respondent was brother of the Appellant. Suit was decreed by the Trial Court, and appeal against which judgment was also dismissed. Appellant case was that the Respondent has no right, title or interest in the property and the Respondent was permitted to live in the premises since the Appellant being wife of a Navy Officer was most of the period out of Goa and she has permitted her brother to occupy the premises. This Court made following observations in paragraphs 91 and 92: 91. We have heard the learned Counsel for the parties at length and perused the relevant judgments cited at the Bar. In the instant case, admittedly, the Respondent did not claim any title to the suit property. Undoubtedly, the Appellant has a valid title to the property which is clearly proved from the pleadings and documents on record. 92. The Respondent has not been able to establish the family arrangement by which this house was given to the Respondent for his residence. The courts below have failed to appreciate that the premises in question was given by the Appellant to her brother, the Respondent herein as a caretaker. The Appellant was m....
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....ndefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application Under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties. 84. In view of the foregoing discussions, we answer issue Nos. 1 and 2 in following manner: (i) The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share. (ii) The judgment of this Court in S.R. Batra v. Taruna Batra (supra) has not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law. Question Nos. 3 and 4 85. Both the issues being inter-connected are being taken togeth....
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....he suit for mandatory and permanent injunction claiming to be absolute owner of the suit property where Defendant was admitted to be in occupation of two bed rooms with few amenities on first floor of the property. The Plaintiff pleaded that he is a senior citizen, aged 76 years but wanted to live a peaceful life and has terminated the licence of the Defendant, who stayed in the first floor. The pleadings of the Plaintiffs in paragraphs 1, 2, 3, 4 and 5 are as follows: 1. That the Plaintiff is the absolute owner of the property bearing No. D-1077 New Friends Colony, New Delhi-110025, admeasuring 492 sq. yds. and is filing the present suit seeking removal of the Defendant from the first floor of the property bearing No. D-1077, New Friends Colony, New Delhi-110025. 2. That the Defendant is in occupation of two bed rooms with attached dressing and bath rooms and a kitchen on the first floor of property bearing No. D-1077, New Friends Colony, New Delhi-110025 more particularly described in Red colour in the site plan and hereinafter referred to as the suit premises. 3. That the Plaintiff is a senior citizen aged 76 years and is a heart patient and has underg....
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....110025 only in the year 2003 The marriage of the answering Defendant was solemnized on 4/3/1995 and the Defendant started residing in the joint shared household since then. Therefore the right of the Defendant is prior in point of time that of the Plaintiff. It is further submitted that the said shared household was purportedly acquired by the Plaintiff through joint family funds and not his self acquired property. The Plaintiff hereby called upon to disclose all income tax returns, bank statements, audited balance sheets etc. since 1982 till 2006. This may deemed to be noticed to discover under provisions of Order XI Rule 12 Code of Civil Procedure on the Plaintiff. As separate application under relevant provision of Code of Civil Procedure is also being filed by the Defendant for such discovery of documents. In view of this, the present is not maintainable and is liable to be dismissed. 4. That the suit filed by the Plaintiff is directly in conflict with the right of the Defendant to reside in her matrimonial residence/shared household granted to her by the Legislature and specifically envisaged in Section 17 and 19 of the Protection of Women from Domestic Viole....
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....have decreed the suit Under Order XII Rule 6 Code of Civil Procedure without adverting to the defence which was taken by the Defendant to resist the suit is the question to be considered. Section 26 of the Act, 2005 contains heading "Reliefs in other suits and legal proceedings". Section 26, which is relevant for the present discussion is extracted for ready reference: 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 initiated before or after the commencement of this Act. (2) Any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. 93. As per Section 26, any relief available....
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.... making application before the Magistrate whereas steps taken by the Magistrate and different categories of reliefs could be granted as noted in Sections 18 to 22 and certain other provisions. Section 26 provides that any relief available Under Sections 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 counterclaim on the basis of this Section before the Judge, Small Cause 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 initiated before or after the commencement of this Act. (2) Any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In cas....
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....ut defeating the right, which is protected by Act, 2005. 97. We have noticed the law laid down by this Court in S.M. Asif v. Virender Kumar Bajaj (supra) where this Court in paragraph 8 has laid down following: 8. The words in Order 12 Rule 6 Code of Civil Procedure "may" and "make such order ..." show that the power Under Order 12 Rule 6 Code of Civil Procedure is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the court. Where the Defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion Under Order 12 Rule 6 Code of Civil Procedure. The said Rule is an enabling provision which confers discretion on the court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim. 98. The power Under Order XII Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case, the Trial Court ought not to have given judgment Under Order XII Rule 6 on the admission of the Defendant as contained in her application....
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....efendant has not sought for any relief Under Section 19. It is true that no separate application or separate prayer has been made by the Defendant in the suit for grant of any relief Under Section 19 but in her pleadings she has resisted the claim of Plaintiff on the ground that she has a right to reside in the suit property it being her shared household. Thus, the question whether the suit premises is shared household of the Defendant and she has right in the shared household so as the decree before the Trial Court can be successfully resisted were required to be determined by the Trial Court. We are further of the view that when in the suit Defendant has pleaded to resist the decree on the ground of her right of residence in the suit property it was for her to prove her claim in the suit both by pleadings and evidence. 103. As noted above, one of the conditions to treat a person as a Respondent is that "against whom the aggrieved person has sought any relief under the Act". The Defendant in her pleadings having claimed that she has right of residence in the suit property, she for successful resisting the suit has to plead and prove that she has been subjected to any act of dom....
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....by Sub-section (2), i.e., "save in accordance with the procedure established by law". Sub-section (2) of Section 17, thus, contemplates that aggrieved person can be evicted or excluded from the shared household in accordance with the procedure established by law. What is the meaning and extent of expression "save in accordance with the procedure established by law" is a question which has come up for consideration in this appeal. Whether the suit filed by the Plaintiff for mandatory and permanent injunction against the Defendant in the Civil Court is covered by the expression "save in accordance with the procedure established by law". We may further notice that the learned Magistrate while passing the interim order on 26.11.2016 in favour of the Defendant on her application filed Under Section 12 has directed that "the Respondent shall not alienate the alleged shared household nor would they dispossess the complainant or their children from the same without orders of a Competent Court". The Magistrate, thus, has provided that without the orders of Competent Court the applicant (Respondent herein) should not be dispossessed. In the present case, interim order specifically contemplat....
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....ich contains various details including orders required, residence orders, Under Section 19, monetary relief Under Section 20, details of previous litigation, if any, and other details to enable the Magistrate to take appropriate decision. Rule 6 Sub-rule (4) provides that for obtaining an interim ex-parte order Under Section 23, an affidavit is to be filed in Form-III. The Form-III is an affidavit of an aggrieved person or the person filing affidavit on behalf of his ward, daughter, etc. The Act and the Rules thus provide for a procedure and manner of filing an application for obtaining a relief under Act, 2005. The Act, 2005, is an special Act which provides for manner and procedure for obtaining relief by an aggrieved person. 112. The provision of Section 145 of Code of Criminal Procedure in this context may be noticed. Section 145 of Code of Criminal Procedure provides for procedure where dispute concerning land or water is likely to cause breach of peace. Under Section 145 Code of Criminal Procedure in case Magistrate is satisfied that a dispute likely to cause a breach of the peace exists, he may require the parties to attend the Court and to decide whether any and which of....
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.... that finding recorded by the Magistrate Under Section 145 Code of Criminal Procedure does not bind when the matter comes for adjudication before competent court. This Court explained expression "until evicted therefrom in due course of law" mean "any court which has jurisdictional competence to decide the question of title or rights to the property or entitlement to possession". In paragraph 17 of the judgment following was observed: 17. ..................The words 'until evicted therefrom in due course of law' as occurring in Sub-section (6) of Section 145' mean the eviction of the party successful before the Magistrate, consequent upon the adjudication of title or right to possession by a competent court; that does not necessarily mean a decree of eviction. The party unsuccessful before the Magistrate may dispute the correctness of the finding arrived at by the Magistrate and is at liberty to show before the competent court that it had not dispossessed the successful party or that it is the unsuccessful party and not the successful party who was actually in possession and the finding to the contrary arrived at by the Magistrate was wholly or apparently erron....
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....m the above case, we are of the opinion that the expression "save in accordance with the procedure established by law", in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a Competent Court. We may further notice that in Sub-section (2) the injunction is "shall not be evicted or excluded from the shared household save in accordance with procedure established by law". Thus, the provision itself contemplates adopting of any procedure established by law by the Respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household. One most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 Sub-section (f) itself. There may be cases where Plaintiff can successfully prove before the Competent....
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....he Court and that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject-matter of the litigation whether it be the questions relating to moveable or Immovable property. 12. Sinha, J. speaking for the majority said that a declaratory judgment in respect of a disputed status will be binding not only upon parties actually before the Court but also upon persons claiming through them respectively. The Court laid down the law that in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation. Where the subject-matter of a litigation is a declaration as regards status or a legal character, the Rule of presence of direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy. ............ 119. There can be no dispute with the preposition of law as laid down by this Court in the above....
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....We are, thus, of the view that direction in paragraph 56(i) be not treated as a general direction to the Courts to implead in all cases the husband of an aggrieved person and it is the Trial Court which is to exercise the jurisdiction Under Order I Rule 10. The direction in paragraph 56(i) are, thus, need to be read in the manner as indicated above. 122. Now, coming to the present case, we have already observed that although husband of the Defendant was not a necessary party but in view of the pleadings in the written statement, the husband was a proper party. Question No. 8 123. While noticing the facts and events of the present case, we have noticed that in complaint filed by the Respondent Under Section 12 of Act, 2005, an interim order was passed in her favour directing the Respondent arrayed in the complaint not to dispossess the applicant without orders of a competent court. Suit giving rise to this appeal was filed thereafter praying for a mandatory and permanent injunction against the Defendant-Respondent. High Court in the impugned judgment has observed that the effect of the pendency of proceeding under D.V. Act, 2005 has not been taken note of. With regard to va....
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....eld to be applicable in other proceedings. There can be no applicability of principle of res judicata when orders of Criminal Courts are pitted against proceedings in Civil Court. With regard to criminal proceedings Code of Criminal Procedure also contains provision that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence. The principle enumerated in Section 300 Code of Criminal Procedure may be relevant with respect to two criminal proceedings against same Accused, which might have no relevance in reference to one criminal proceeding and one civil proceeding. 127. Sections 40 to 44 of the Indian Evidence Act, 1872 which deal with "judgments of Courts of justice when relevant" throw considerable light on the subject which is under consideration before us. Sections 40 to 44 of the Indian Evidence Act are as follows: Judgments of courts of justice when relevant 40. Previous judgments relevant to bar a second suit or trial.-- The exist....
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....other proceeding may show that any judgment, order or decree which is relevant Under Section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. 128. Section 40 renders admissible judgments which operate as placing any bar on a suit or trial as plea of res judicata or otherwise under some Rule of law. The scheme of D.V. Act, 2005 does not contemplate that any judgment and order passed Under Section 19 of the said Act prevents any court from taking cognizance of a suit or holding of trial; Section 41 deals with relevancy of certain judgments in probate, matrimonial, admiralty and insolvency jurisdiction which are conclusive not only against party but against all the world. This Section enumerates four classes of judgments. A decree of Civil Court in exercise of matrimonial jurisdiction is also one of the judgments which had been held to be relevant Under Section 41. The orders passed under Act, 2005 cannot be held to be orders or judgments passed in exercise of any matrimonial jurisdiction by the Court. The Act, 2005 is a special act on the subject of providing for effective pro....
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.... and Section 26(3), read with Section 25(2), even the Legislature envisaged the two independent proceedings, one before the magistrate under the D.V. Act and another proceeding other than the proceedings under the D.V. Act. 133. Even the Civil Court has to take into consideration the relief already granted by the Magistrate in the proceedings under the D.V. Act and vice versa. 134. However, at the same time, it is to be observed that in a case any relief available Under Sections 18, 19, 20, 21 and 22 is sought by aggrieved person in any legal proceedings before a civil court, family court or a criminal court including the residence order, the aggrieved person has to satisfy by leading evidence that domestic violence has taken place and only on the basis of the evidence led on being satisfied that the domestic violence has taken place, the relief available Under Section 19 can be granted as Section 19(1) specifically provides that while disposing of an application Under Sub-Section 1 of Section 12, the magistrate may, on being satisfied, that domestic violence has taken place, pass the residence order. 135. At this stage, it is also required to be noted that while passing t....
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....ph 15: 15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast Rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. 140. In the above case, this Court had observed that possibility of conflicting decisions in the civil and criminal courts was not a relevant consideration. This Court had further observed that "The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes...." 141. This Court in M.S. Sheriff (supra), directed that civil suits should be stayed till the criminal proceedings have finished. The issue....
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....n the said judgment. The Three Judge Bench was answering the reference made on 09.11.1998 by which an earlier judgment of this Court in V.M. Shah v. State of Maharashtra (1995) 5 SCC 767 required a reconsideration. This Court in V.M. Shah's case had laid down that "the finding recorded by the criminal court stands superseded by the finding recorded by the civil court" thereby the finding of civil court got precedence over the finding recorded by the criminal court. Before this Court in K.G. Premshankar case prosecution was launched against the Appellants, cognizance of which was taken by the Chief Judicial Magistrate. Appellant filed a proceeding Under Section 482 Code of Criminal Procedure for quashing the prosecution, which was rejected, against which matter was taken to this Court. The complainant had also filed a suit for damages for the alleged act before the civil court, which suit was pending in the trial court at the stage of framing of issues. Submission, which was raised before this Court was that the High Court ought to have dropped the prosecution against the Appellants as the civil court has dismissed the suit, i.e., suit for damages filed against the Appellants. T....
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....ch suit or to hold such trial. 144. This Court noticing the Constitution Bench judgment in M.S. Sheriff (supra) and few other judgments had recorded its conclusion in paragraph 30 to the following effect: 30. What emerges from the aforesaid discussion is -- (1) the previous judgment which is final can be relied upon as provided Under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 Code of Criminal Procedure makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. 145. This Court ultimately held that civil proceedings as well as criminal proceedings are required to be decided on the facts and evidences brought ....
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....asoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent court and the competent court is not bound by the findings arrived at by the Magistrate even on the question of possession though, as between the parties, the order of the Magistrate would be evidence of possession. The finding recorded by the Magistrate does not bind the court. The competent court has jurisdiction and would be justified in arriving at a finding inconsistent with the one arrived at by the Executive Magistrate even on the question of possession. Sections 145 and 146 only provide for the order of the Executive Magistrate made under any of the two provisions being superseded by and giving way to the order or decree of a competent court. The effect of the Magistrate's order is that burden is thrown on the unsuccessful party to prove its possession or entitlement to possession before the competent court. 21. The order of the Magistrate Under Sections 145/146 of the Code is not only an order passed by the criminal court but is also one based on summary enquiry. The competent court in any subsequent proceedings is fr....
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....Act, this Court laid down following in paragraph 13: 13. XXXXXXXXXXXXXX A judgment in a criminal case, thus, is admissible for a limited purpose. Relying only on or on the basis thereof, a civil proceeding cannot be determined, but that would not mean that it is not admissible for any purpose whatsoever. 150. It was further held that a decision in a criminal case is not binding in a civil case. In paragraph 15, following was laid down: 15. A civil proceeding as also a criminal proceeding may go on simultaneously. No statute puts an embargo in relation thereto. A decision in a criminal case is not binding on a civil court. In M.S. Sheriff v. State of Madras [AIR 1954 SC 397], a Constitution Bench of this Court was seized with a question as to whether a civil suit or a criminal case should be stayed in the event both are pending. It was opined that the criminal matter should be given precedence. In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sen....
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....gments in subsequent cases may be taken into consideration. 153. We take an example to further illustrate the point. In the plaint of suit giving rise to this appeal, the Plaintiff has pleaded that the wife of the Plaintiff has been subjected to various threat and violence in the hands of the Defendant on several occasions. In event, the suit is filed by wife of the Plaintiff against the Defendant for permanent injection and also praying for reliefs Under Section 19 [except Section 19(1)(b)]. The suit be fully maintainable and the prayers in the suit can be covered by the reliefs as contemplated by Section 19 read with Section 26 of the Act, 2005. 154. By a written statement, the Defendant is sure to resist the suit on the ground that she had already filed an application Under Section 12 where Plaintiff Dr. Prem kant Ahuja (mother-in-law of the Defendant) is one of the Respondent and she may also place reliance on the interim order dated 26.11.2016 restraining the Respondents which included Dr. Prem Kant Ahuja from dispossessing the applicant except without obtaining an order of competent Court. The order dated 26.11.2016 which was passed by the Magistrate under D.V. Act, 200....