Delhi District Court
In The Matter Of Neeraj Chadha vs . Pooja Chadha on 19 January, 2013
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-06, NORTH, THC, DELHI
In the matter of NEERAJ CHADHA Vs. POOJA CHADHA
Suit No. 235/11
Unique ID No. 02401C0648092007
Sh. Neeraj Chadha,
S/o Sh. S. P. Chadha,
R/o Flat 4B, A-1,
Asian Towers, Sector-61,
Noida. ...... PLAINTIFF.
Vs.
Smt. Pooja Chadha,
W/o Sh. Neeraj Chadha,
R/o Flat 67-S, Pocket-7,
Jasola Vihar,
New Delhi ...... DEFENDANT.
DATE OF INSTITUTION OF THE CASE : 07.07.2007
DATE ON WHICH RESERVED FOR ORDER: 05.01.2013
CS No. 235/11
Neeraj Chaddha Vs. Pooja Chaddha Page No. 1 of 13
DATE OF ORDER : 19.01.2013
JUDGMENT:
SUIT FOR PERMANENT INJUNCTION
1. This composite order of mine shall decide the application u/o 6 rule 17 CPC dated 19.11.2012 filed on behalf of the plaintiff and also on the maintainability of the present suit.
2. In the application u/o 6 rule 17 CPC it is stated that the plaintiff has filed the present suit for the relief of permanent injunction with a prayer, inter- alia to pass a decree of permanent injunction against the defendant restraining her from removing the minor daughter from DPS, East of Kailash which imparts education to students up to class fifth after which they are automatically admitted to R.K. Puram Branch. That due to promotion in class the minor daughter is now studying in DPS R. K. Puram and therefore due to change in circumstances, the plaintiff intends to amend paras no. 2 and 11 and also prayer of the plaint for incorporating the said change.
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3. In reply dated 20.12.2012 the application is opposed on behalf of defendant stating that the plaintiff has miserably failed to disclose any cause for allowing the amendment. The plaintiff has failed to disclose any incident of the said promotion of the daughter Ms. Navika from DPS East of Kailash to DPS R. K. Puram which makes the present suit infructuous. That wherever there is a special procedure provided under law and there are specific enactments then the general law cannot be applied. That the plaintiff was very well aware of the said fact of the change of school of their daughter but he has suppressed the said fact from this Hon'ble Court till the date of filing of this application. Also there is no averment at all as to when the minor daughter left DPS East of Kailash or when she got promoted to DPS R. K. Puram and also there is no averment as to when the plaintiff learnt about the same.
4. I have heard the arguments of both the sides and perused the record.
5. It has been vehemently argued on behalf of the counsel for defendant that the plaintiff has been delaying the present suit and CS No. 235/11 Neeraj Chaddha Vs. Pooja Chaddha Page No. 3 of 13 harassing the defendant as already divorce proceedings and proceedings for appointment of guardian are pending between the parties in various Courts. It was only on 03.11.2012 that while addressing arguments on the point of maintainability of the present suit, the counsel for defendant had submitted that the minor child has been upgraded to DPS R. K. Puram. The said submission was recorded in the order sheet dated 03.11.2012 and then thereafter the present application u/o 6 rule 17 CPC was moved by the plaintiff.
6. Record shows that the submission regarding change/ up- gradation of the school of the minor child from DPS East of Kailash to DPS R. K. Puram was recorded on 03.11.2012 in the order sheet itself when the arguments were heard on the point of maintainability of the present suit. The present suit has been filed by the husband against the wife for the relief of injunction seeking to restrain the defendant from removing the minor daughter from DPS East of Kailash and from the jurisdiction of this Hon'ble Court without written consent of the plaintiff and without permission of the Hon'ble Court. It is also noted that an affidavit CS No. 235/11 Neeraj Chaddha Vs. Pooja Chaddha Page No. 4 of 13 has been filed by the defendant in respect of the above noted statement regarding up-gradation of school. In the said affidavit of the defendant dated 20.11.2012 it is mentioned that it has been one year and eight months that the minor daughter Navika Chadha has been transferred from DPS East of kailash, New Delhi to DPS Sector-12, R. K. Puram, New Delhi. This fact has not been denied by the plaintiff and in fact the plaintiff himself admits in his amendment application that the school has been upgraded. Thus, the time period i.e. one year and eight months is not denied or controverted by the plaintiff. It is also pertinent to note that the plaintiff has knowledge regarding the fact that the school DPS East of Kailash is only up to class 5th and the child automatically gets promoted to 6th standard to the other branch of the said school DPS R. K. Puram as it has been clearly mentioned in the application u/o 6 rule 17 CPC itself. Moreover, there have been visitation orders in favour of the plaintiff in the suit for dissolution of the marriage vide order dated 01.02.2008 passed in HMA (Hindu Marriage Act) No. 575/05. There has been no denial on behalf of the plaintiff that the plaintiff did not CS No. 235/11 Neeraj Chaddha Vs. Pooja Chaddha Page No. 5 of 13 meet the minor child on any occasion after the said order till date. Thus, the plaintiff had himself the knowledge regarding up- gradation of the school as he had himself made averment that he made efforts to get the child admitted in DPS East of Kailash. It is not the case of the plaintiff that he did not meet the child for a long time and therefore he did not know about the change of school and thus it is clear that the plaintiff would have been meeting the child as per the visitation order and would have met the child several times after the said order till date as the order for visitation rights was granted for the last Sunday of every month. It therefore, cannot be believed that the child would not have told her father i.e. plaintiff herein regarding the change/ up-gradation of school. There is also no averment in the application that when the plaintiff came to know about the up-gradation of school and I have no hesitation to hold that the present application for amendment is moved with a considerable delay. There is also no averment in the present application that the plaintiff could not inform the counsel regarding the change/ up-gradation of school and hence, the present application could not be moved at an CS No. 235/11 Neeraj Chaddha Vs. Pooja Chaddha Page No. 6 of 13 early stage.
7. From the above discussion what comes out on the surface is that the present application has been moved with a considerable delay of one year and eight months and this delay is not merely a delay which could be condoned but on the facts and circumstances of the case, the same is laches on the part of the plaintiff and since the present suit pertains to the equitable relief of injunction, the present application deserves to be dismissed and is accordingly dismissed.
8. On the point of maintainability of the present suit, the counsel for defendant has strongly argued that wherever there is a special procedure provided under law and specific enactments for the same, then the general law cannot be applied and as in the present case the issue relating to custody and visitation are already pending before the Matrimonial Court and before the Guardian Courts and since the enactments under Hindu Marriage Act as well as under the Guardian and Wards Act provide special remedies pertaining to guardianship, custody, visitation and other issues relating to welfare of the child, therefore no suit for CS No. 235/11 Neeraj Chaddha Vs. Pooja Chaddha Page No. 7 of 13 injunction is maintainable and the plaint must be rejected u/o 7 rule 11 CPC.
9. On the other hand, counsel for plaintiff has strongly relied upon the judgment in the matter: Sanjeev Sangwan Vs. Sangeeta Sangwan 2003 IV AD(Delhi) 554 stating that on similar facts Hon'ble High Court of Delhi held that the suit for permanent injunction is maintainable and restrained the defendant from removing the minor children from the school without the consent of the plaintiff.
10. I have heard the arguments on maintainability and perused the record.
11. It is important to refer to para 5 of the above said judgment in which the Hon'ble Court observed that :
" 5. The next question which arises is whether this Court should decline to exercise its discretionary powers and instead point the parties in the direction of the Guardian Judge in the District Court. The Guardian and Wards Act, 1890 (Act, for short) states in its Preamble that is- " an act to consolidate and .... amend the law relating to Guardian and Wards" . Section 3 specially states that none of its provisions should be construed to effect or in any way derogate from the jurisdiction or authority of any Court of Wards CS No. 235/11 Neeraj Chaddha Vs. Pooja Chaddha Page No. 8 of 13 or to take away any power possessed by an High Court."
12. Further more in para 6 of the judgment the Hon'ble Court discussed section 4 (A) of the Guardian and Wards Act and observed that the Hon'ble High Court being the nominating Court does not forfeit its jurisdiction merely because it has made a delegation in favour of the Ld. District Judge, but can exercise them concurrently. Thus, the Hon'ble High Court in the said case exercised its concurrent power while ordering that the present suit is maintainable for permanent injunction. In the above mentioned ruling the Hon'ble High Court exercised its discretion being " parens patrae jurisdiction" . That with due regards to the said ruling, in the facts of the present case, there have been proceedings pending for dissolution of marriage under Hindu Marriage Act (HMA) and petition for appointment of guardian under the Guardian and Wards Act which have been filed by the plaintiff against the defendant and vis-a-versa respectively. It is also pertinent to mention here that application for visitation of rights u/s 26 of HMA was also filed by the plaintiff in the matter for CS No. 235/11 Neeraj Chaddha Vs. Pooja Chaddha Page No. 9 of 13 dissolution of marriage. Section 26 of the HMA states that in any proceedings under the Act (i.e. Hindu Marriage Act, 1955), the Court may pass such interim order with respect to the custody, maintenance and education of minor children, consistently with child's wishes. Admittedly, the minor child is presently residing with the defendant i.e. her mother and the defendant has also filed petition under the Guardian and Wards act for being appointed as guardian of her minor daughter. Thus, the relief for which the present suit has been filed, very much pertains to the Guardian and Wards Act or section 26 of the Hindu Marriage Act, as the Courts under the said Acts are only empowered to decide the custody of the children and also with respect to their education and maintenance etc. and therefore the said two enactments provide special remedies and encompass the entire field relating to the guardianship, custody, visitation and other issues relating to the welfare of the child. In the present suit, the relief sought by the plaintiff is to restrain the defendant from removing the minor daughter from the school and from the jurisdiction of this Hon'ble Court without the consent of the CS No. 235/11 Neeraj Chaddha Vs. Pooja Chaddha Page No. 10 of 13 plaintiff and without the permission of the Hon'ble Court. This relief very much falls within the ambit of the above mentioned two enactments as discussed herein above and also in view of the fact that separate proceedings under the said two enactments are going on between the parties the present suit cannot be maintained before this Court. The counsel for the defendant has relied upon Ashoka Marketing Ltd. & Ors. Vs. Punjab National Bank (1990) 4 SCC 406 wherein the Hon'ble High Court discussed the maxim " generalia specialibus non-derogate" (a general provision does not derogate from the special one). The Hon'ble Supreme Court also observed that the general provision should yield to specific provision while relying upon the judgment J. K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. State of Uttar Pradesh (1961) 3 SCR 185. Defendant also relied upon Chairman, Thiruvalluvar Transport Corporation Vs. Consumer Protection Council (1995) 2 SCC 499 wherein also the Hon'ble Supreme Court while dealing with the question that the Motor Vehicle Act, 1988 is a special act in relation to claims CS No. 235/11 Neeraj Chaddha Vs. Pooja Chaddha Page No. 11 of 13 conversation arisen out of the Motor Vehicle observed that ordinarily the general law must be yield to the specific law. It was held that while the Consumer Protection Act, 1986 being a law dealing with the question of extending protection to consumers in general and therefore National Commission for consumer has no jurisdiction to adjudicate upon claims for compensation arisen out of Motor Vehicle Accident. The defendant also relied upon Radhika Vickram Tikkoo Vs. Vickram Ravi Tikkoo Senior 60 (1995) DLT 666 wherein Hon'ble Delhi High Court observed while dealing with section 26 of the HMA Act that the parent charged with custody must have discretion in such matters and the Court cannot be made arbiter for numerous issues that arises in day to day life of the child on which the parent charged with the custody as to decide. Thus, it is clear that where there are special enactments the specific law overrides the general law.
13. For rejecting any plaint only its averments and documents filed along are are seen. The plaint only reflects the pendency of the said matter i.e. dissolution of marriage & petition for appointment of guardian between the parties. In view of the above discussion, CS No. 235/11 Neeraj Chaddha Vs. Pooja Chaddha Page No. 12 of 13 the present suit is not maintainable and suit being barred by law as equal efficacious remedy is available to the plaintiff in the above mentioned enactments i.e. Hindu Marriage Act and Guardian and Wards, the plaint is rejected u/o 7 rule 11 (d) CPC. No order as to costs.
File be consigned to record room after necessary compliance.
Announced in open Court (PRANJAL ANEJA)
on 19.01.2013 CIVIL JUDGE-06, NORTH
THC/DELHI/19.01.2013
CS No. 235/11
Neeraj Chaddha Vs. Pooja Chaddha Page No. 13 of 13