Delhi District Court
Shri Ashwani Kumar Arora S/O Late Shri ... vs Smt. Nancy Arora on 20 April, 2007
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IN THE COURT OF SHRI RAKESH KUMAR SHARMA
Additional Senior Civil Judge : Delhi.
MCA-149/2006
1. Shri Ashwani Kumar Arora S/o Late Shri K.L. Dua,
2. Smt. Shashi Arora, W/o Shri Ashwani Kumar Arora,
3. Shri Gautam Arora, S/o Shri Ashwani Kumar Arora,
4. Dadi ( Smt. Kaushalaya ) widow of Late Shri K.L. Dua,
All R/o-H. No. 2509, Gali No. 12, Behari Colony,
Shahdara, Delhi. ......Appellants/Defendants No. 1, 2, 4 & 6.
Versus
1. Smt. Nancy Arora, D/o Shri Suraj Prakash Handa,
R/o-H. No. 266, Bank Enclave, Laxmi Nagar,
Delhi. ........Respondent No. 1/Plaintiff
2. Shri Gaurav Arora, S/o Shri Ashwani Kumar Arora,
R/o-B-20A, Jagatpuri, Delhi. .......Respondent/Defendant
No. 3.
Date of institution : 20.09.2006.
Date of Judgment : 20.04.2007.
JUDGMENT
1. This is an appeal filed by the defendants No. 1, 2, *2* 4 & 6 against the order dated 23.08.2006, passed by learned Civil-Judge, Delhi, whereby in a suit for permanent injunction, the application of the plaintiff (Respondent No. 1 herein) under Order 39 Rules 1 & 2 CPC seeking to restrain the defendants from dis-possessing her from the room shown in red in the site plan filed by the plaintiff, in premises bearing No. 152/1, South Anarkali Near Som Bazar, Chander Nagar, Delhi, ( hereinafter called 'the suit premises' for brevity ) till final disposal of the suit, was allowed.
2. Learned Counsel for the Appellant has relied upon the following authorities in support of his contentions:-
(A) AIR 1953 SC 235 titled as "Trojan & Company Vs. Nagappa".
(B) 1996 Rajdhani Law Reporter (Notes) 1, titled as "Sadhu Singh Vs. Narinder Kaur".
(C) 2007 Rajdhani Law Reporter 13 (SC) titled as "S.R. Batra Vs. Taruna Batra".
(D) AIR 1972 Delhi 84 titled as "Shashi Kapoor Vs. Subhash Kapoor".
(E) 36 (1988) DLT 428 titled as "Hoshiyar Singh *3* Vs. Gaon Sabha Daryapur Kalan".
(F) 45 (1991) DLT (SN) 7 titled as "Harjeet Singh Gill Vs. Speedways Service Center Petrol Pump".
(G) AIR 1978 Delhi 174 titled as Chandu Lal Vs. Municipal Corporation of Delhi".
3. On the other hand learned counsel for the respondent has relied upon the following authorities in support of his contentions :-
(A) AIR 1983 Andhra Pradesh 356 titled as "T. Sareetha Vs. T. Venkta Subayya".
(B) AIR 1934 Calcutta 713 titled as "Shamsuddin Ahmed Vs. Charu Chandra Biswas and others".
(C) AIR 1928 Sindh 82 titled as "The Hindu Panchayat of Laki Vs. The Mahomeddan Community of Laki".
(D) AIR 1936 Peshawar 11 titled as "Standard of India Insurance Co. Ltd. Peshawar Vs. Standard Life Assurance Co. Calcutta".
(E) AIR 1973 SC 1451 titled as "SCCD Union Vs. L.K. Sugar Mills".
(F) AIR 1987 SC 1492 titled as "Terene Traders Vs. Ramesh-Chandra Jamnadas & Co. and another".
*4* (G) AIR 1982 SC 3 titled as "Smt. Jeewanti Pandey Vs. Kishan Chandra Pandey".
(H) I 2007 SLT 1 titled as " S.R. Batra Vs. Taruna Batra".
4. I have heard learned counsels for the parties and have also gone through the record as well as the authorities relied upon by them.
5. The plaintiff has claimed in the suit that the suit premises is her matrimonial home. It is her own case in the plaint itself that she left the suit premises on 07.10.2005 and thereafter on 27.11.2005 when she tried to enter the suit premises, defendants No. 5 & 6 did not allow her to enter the suit premises and she got entry into the house by intervention of the police. Hence, it is clear that as per the plaintiff herself, her possesion, if any, in the suit premises is that of a tresspasser. The present suit was filed on 30.11.2005 i.e. on the third day of coming into possession by the plaintiff, admittedly, with the help of police. There can not be any doubt that the act of police persons itself was beyond their jurisdiction. Being a tresspasser, she is not entitled to any injunction from the Court. The application of the plaintiff is liable to be *5* dismissed on this ground alone. Learned trial Court failed to look into this aspect of the matter.
6. Even otherwise, the only right to retain possesion of the suit premises claimed by the plaintiff in the plaint is that the suit premises is her matrimonial home. In the written statement, the defendants have specifically pleaded that defendant No. 6, Smt. Kaushalaya Devi is the absolute owner of the entire property of which the suit premises is a part. This fact has not been specifically denied in the replication filed by the plaintiff and hence, same is deemed to be admitted by her.
7. It has been held in S.R. Batra Vs. Taruna Batra relied upon by both the counsels as follows:-
" 12. The learned Single Judge of the High-Court in the impugned Judgment held that the second floor of the property in question was the matrimonial home of Smt. Taruna Batra. He further held that even if her husband Amit Batra had shifted to Ghaziabad that would not make Ghaziabad the matrimonial home of Smt. Taruna Batra. The learned Judge was of the view that mere change of the residence by the husband would not shift the matrimonial home from Ashok Vihar, particularly when the husband *6* had filed a divorce petition against his wife. On this reasoning, the learned Judge of the High-Court held that Smt. Taruna Batra was entitled to continue to reside in the second floor of B-135, Ashok Vihar, Phase-I, Delhi, as that is her matrimonial home.
13. With respect, we are unable to agree with the view taken by the High-Court.
14. As held by this Court in B.R. Mehta Vs. Atma Devi & others (1987) 4 SCC 183, whereas in England the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such rights exists in India.
15. In the same decision it was observed "it may be that with change of situation and complex problems arising it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife".
16. In our opinion, the above observation is merely an expression of hope and it does not lay down any law. It is only the Legislature which can create a law and not the Court. The Courts do not legislate, and whatever may be *7* the personal view of a Judge, he cannot create or amend the law, and must maintain judicial restraint.
17. There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.
18. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house ( underlining by me ).
8. It is clear from the authority that the plaintiff can not claim any right to live in the house. I have held above that the plaintiff is a tresspasser in the suit premises. In any case, in view of the authority, she has no right to retain her possession of the suit premises. Even otherwise, it is a settled law that no injunction can be granted in favour of a tresspasser against the true owner. Learned trial Court also failed to look into this aspect of the matter. Application of the plaintiff is also liable to be dismissed on this ground also.
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9. In any case, it is a settled law that grant of injunction is in the discretion of the Court and can not be claimed by the party as a right and that a party who does not come to the Court with clean hands is not entitled to exercise of any discretion in her/his favour. Injunction is a relief in equity and the person who seeks equity must do equity. In the present case, it is the case of plaintiff herself in the plaint itself that she entered into the suit premises with the help of police. It is clear that she herself has come into possession of the suit premises without following the due process of law. In case she felt that she had any right to live in the suit premises against the defendants, there is no reason why she could not come to the Court for vindicating her right. It is clear that the planitiff who admittedly herself has not followed due process of law wants the defendants to follow due process of law by way of the present application.
10. Not only this, the case of defendants in the written statement is that the husband of the plaintiff, Shri Gaurav Arora ( defendant No. 3 before the trial Court and respondent No. 2 herein ) is living separately at B-20A, Jagatpuri, Delhi. This fact is not specifically denied by the *9* plaintiff in her application and hence, the same is deemed to be admitted by her. The plaintiff has claimed that she is not residing at the said place. No reasons have been given in the entire plaint by the plaintiff why she is not residing with her husband at the said address. It is pertinent to mention here that in para 9 of the plaint, the plaintiff has claimed that she is pregnant and require medical facilities and "care of her husband". It is relevant to mention here that in the plaint, the plaintiff has claimed that she received the legal notice from her husband on 08.10.2005. In the entire plaint, it is nowhere stated that she sent any reply to the said legal notice of her husband. However, it was mentioned by the defendants in the written statement that the planitiff sent a reply dated 14.10.2005 to the legal notice dated 08.10.2005, which fact has been admitted by the plaintiff in her replication. Again, no reason is forth coming why while mentioning the legal notice of her husband, the plaintiff did not mentioned that she sent reply to the said legal notice. A copy of the reply sent by the plaintiff dated 14.10.2005 is on record in which it is stated that "..........Under such circumstances, if your client can accommodate some place to live therein, my *10* client has no hasitation in joining your client in the matrimonial home..........". As noted above, although her husband is residing at the aforesaid address separately from other defendants, the plaintiff despite seeking separate accommodation in her reply to notice instead-of joining her husband has taken possession of the suit premises with unlawful help of the police.
11. It has been held in Sadhu Singh Vs. Narinder Kaur relied upon by learned counsel for appellant as follows:-
"The in-laws had shown their sense of moral responsibility by making a reasonable offer of accommodation until decree of divorce. It was spurned by respondent and her counsel and instead demand of Rs.2 Lakh was made for vacating room in her possession. The respondent had no legal right, title or interest in the suit property. Mere occupation by respondent would not make it a case of lawful or 'settled possesion'. She is acting in an unfair manner to exploit the situation of her occupation. Her conduct is such as disentitle her from the discretionery relief of injunction. Hence, the injunction granted by the appellate Court is hereby vacated" ( Underlining by me ).
*11* I am of the view that the authority is squarely applicable to the facts of the present case. The very fact that despite her husband is having a separate accommodation, the plaintiff has taken illegal possesion of the suit premises and is not residing with her husband clearly shows that she is exploiting the situation.
12. The malafide conduct of the plaintiff goes still further. In the plaint itself, it is the case of plaintiff herlself that she was beaten by the defendants for dowry which even resulted in aborted pregnancy and that she has filed a complaint under Section 498-A IPC against the defendants. I find it extremely strange and shocking that despite the cruel treatment meted out to her, the plaintiff who claims to be pregnant, still wants to live at the same place and that too after forcibally occupying the same. It also clearly shows that she wants to exploit the situation.
13. The plaintiff does not stop here. She goes still further. As noted above, in the replication, it is not denied by the plaintiff that defendant, Smt. Kaushalaya Devi, is the sole and absolute owner of the suit premises. Significantly, for the first time in reply to the present appeal, the plaintiff claimed that Smt. Kaushalaya Devi is *12* not the absolute owner but the same is a joint family property brought from the fund of undivided share. Clearly, this fact is contradictory to her admission made in her replication that defendant No. 3 is the sole and absolute owner of the suit premises. As per Order 6 "Pleadings" mean plaint, written statement and replication only. Hence, reply to the appeal is not a part of the pleadings and can not be considered. In any case, it has been held in Shashi Kapoor Vs. Subhash Kapoor relied upon by learned Counsel for appellant as follows:-
"11. Thus, to claim an injunction or an interim injunction on the basis of actual physical possesion, the plaintiff can succeed in the present case only if there is prima-facie evidence of the plaintiff being in lawful possesion in his own right. In my view there is no such prima-facie evidence available on the record. Apart from a bold assessment on the part of the plaintiff/applicant that House No. 3, Friends Colony, New-Delhi, is a joint Hindu family property, there is nothing also to support the contention. The plaintiff-applicant has no doubt, stated that House No. 3, Friends Colony was required with the help of joint Hindu family funds but has given no *13* particulars of those funds. That the property stood in the exclusive name of P.L. Kapur can not be disputed nor has been challenged.......... I, therefore, hold that prima-facie there is no evidence on record to show that the plaintiff is in possession of House No. 3, Friends Colony, New-Delhi, in his own right as a member of Joint Hindu family, the property belonging to the Joint Hindu Family" ( Underlining by me ).
14. I am of the view that the authority is squarely applicable to the facts of the present case. No particulars have been given by the plaintiff as to how the property is a Joint Hindu family property. Nothing has been placed on record to show even prima-facie that the property is a Joint Hindu family property. Hence, the contention is rejected.
15. It is clear from the above discussion, that the plaintiff can go to any extent to achieve her illegal and malafide designs and that she has not come to the Court with clean hands and hence, she is not entitled to exercise of any discretion in her favour. Learned trial Court also failed to take note of these facts. The application of the plaintiff under Order 39 Rules 1 & 2 CPC is liable to be dismissed on this ground also.
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16. I have carefully gone through the authorities relied upon by learned Counsel for respondent. But it is a settled law that each case is to be decided according to its own peculiar facts and circumstances. The facts in the present case in my view are materially different from those in the authorities relied upon by learned counsel for respondents. Hence, with great respect, I am of the view that none of the authorities is applicable to the facts of the present case.
17. In view of the above discussion, there can not be any doubt that the appeal is liable to be allowed. However, keeping in view the conduct of the plaintiff noted above, I am of the view that it is a fit case where exemplary costs should be imposed on the plaintiff.
Hence, the appeal is allowed. The impugned order is set-aside and application of the plaintiff under Order 39 Rules 1 & 2 CPC is dismissed with costs of Rs.20,000/-half of which shall be deposited with DLSA by the plaintiff and half shall be paid to the appellants/defendants within a month from today. Trial Court shall ensure deposit/payment of costs.
TCR be sent back along-with a copy of this Order.
*15* Appeal file be consigned to Record-Room. Announced in the open Court ( RAKESH KUMAR SHARMA ) on 20th day of April, 2007. Additional Senior Civil Judge : Delhi.