Madhya Pradesh High Court
Javed Khan vs Smt. Saba on 2 November, 2020
Author: Shailendra Shukla
Bench: Shailendra Shukla
1
THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Cr. R. No.420 of 2020
(Javed Khan vs. Smt. Saba)
Indore, dated :02.11.2020
Shri V. Panot, learned counsel for the applicant is present in
person through Video Conferencing.
Shri K. Kalra, learned counsel for the non-applicant is present
in person through Video Conferencing.
ORDER
This order seeks to dispose of the question regarding maintainability of the criminal revision filed by the applicant-Javed Khan under Section 397 read with 401 of Cr.P.C. as also application (IA No.1515/2020) filed by the non-applicant-Saba for revoking the stay order passed by this Court on 31.01.2020 in favour of the applicant.
2. The applicant-Javed Khan has filed this criminal revision under Section 397 read with 401 of Cr.P.C. being aggrieved by the order passed by the Additional Sessions Judge, Indore in Criminal Appeal No.238/2019 and Criminal Appeal No.249/2019 vide its judgement dated 14.01.2020, whereby learned Judge has allowed Cr. Appeal No.249/2019 filed by the non-applicant and has rejected Cr. Appeal No.238/2019 filed by the applicant. Earlier, non-applicant had filed MCRC No.918/2018 against applicant- Javed Khan and others and had filed application under the provisions of Section 23(1) of the Protection of Women from Domestic Violence Act, 2005 (in short "the Act of 2005") seeking reliefs against the applicant, inter-alia, relief of maintenance, passing an order for securing vacant possession of house No.1/99 situated at Housing Board Colony, Sirohi (Rajasthan) and restraining the applicant from alienating the aforesaid house.
2THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba)
3. The JMFC, Indore vide order dated 02.08.2019 had partly allowed the application awarding maintenance of Rs.8,000/- per month to the non-applicant, that the house No.1/99 situated at House Board Colony, Sirohi shall not be transferred by the applicant and that non-applicant shall be put in possession of part of the aforesaid house as also minor child of non-applicant shall not be taken away by applicant. Against this order, appeal was preferred by the applicant- Javed Khan i.e. Cr. A. No.238/2019. The Appellate Court vide order dated 14.01.2020 rejected the said appeal. From the same order of the JMFC, non-applicant had also filed an appeal i.e. Cr. A. No.249/2019 in which it was prayed that the amount of Rs.8,000/- per month awarded in her favour is inadequate, that she be put in possession of the whole house No.1/99 situated at Housing Board Colony, Sirohi and that applicant and others family members of the applicant be restrained from occupying the house. This appeal was also disposed of on the same day i.e. on 14.01.2020 by a separate judgement and it was allowed to the extent that interim maintenance of Rs.8,000/- per month was enhanced to Rs.12,000/- per month and that further relief was also granted directing the applicant to give complete possession of the house to non-applicant and that no interference in her peaceful possession be created by the applicant in future.
4. It is against such judgement passed in Cr. A. No.238/2019 and Cr. A. No.249/2019, that the present criminal revision has been filed by the applicant.
5. Learned counsel for the non-applicant has submitted a preliminary objection regarding maintainability of the criminal revision. He has referred to the judgement pronounced by the Apex 3 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) Court in the case of Shalu Ojha vs. Prashant Ojha, III (2014) DMC 474 (SC), in which it has been observed in para-27 as under :-
27. It can be seen from the DV Act that no further appeal or revision is provided to the High Court or any other Court against the order of the Sessions Court under Section 29.
6. Learned counsel for the non-applicant thus submits that no appeal or revision is maintainable against an order passed under Section 29 of the Act of 2005.
7. Learned counsel for the applicant however, has submitted that the Apex Court had only observed that no appeal or revision is maintainable under the Domestic Violence Act from an order passed under Section 29 of the same Act and not that revision cannot be filed under Cr.P.C. He has referred to a Full Bench judgement of the Allahabad High Court which is Dinesh Kumar Yadav vs. State of U. P. & another, 2016 SCC Online All. 3848 in support. He has further drawn attention of this Court towards Section 28 of the Act of 2005, which runs as under :-
28. Procedure.--
(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
8. Thus, he submits that provisions of Code of Criminal Procedure shall be applicable in respect of proceedings under Section 23 of the Act of 2005. He has further drawn attention of this Court towards Section 36 of the same Act which reads as under :-
36. Act not in derogation of any other law.--The provisions of 4 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.
9. Learned counsel thus submits that provisions of the Domestic Violence Act does not bar application of provisions of the Code of Criminal Procedure. He also submits that the powers under Sections 397 and 401 of Cr.P.C. are very wide and no fetters can be assumed to have been imposed under the Domestic Violence Act in absence of express provisions to that effect.
10. The citation of the Full Bench of Allahabad High Court in the case of Dinesh Kumar Yadav (supra) was perused. It would be appropriate to reproduce relevant paragraphs, of the aforesaid judgement, which reads as under :-
20. It is against this backdrop that we now proceed to deal with the questions that are referred to for our consideration. It can be seen from the Act, 2005 that no further appeal or revision is provided for before the High Court or any other Court against the order of the Sessions Court under Section 29, as observed by the Supreme Court in Shalu Ojha (supra). The Supreme Court in that case had no occasion to consider whether a further remedy by way of revision can be taken under Section 397/401 of Cr P C, assailing an order of the Court of Sessions passed under Section 29 of the Act, 2005.
In other words, the question of maintainability of a revision before the High Court under the provisions of Cr P C, assailing an order under Section 29 of the Act, 2005, was neither specifically raised, nor considered nor addressed/decided.
21. It is trite that the ratio decidendi is to be understood on a reading of the entire judgment keeping in mind the issues involved, argued, considered and decided. Every observation made in a judgment is not part of its ratio. It is true that even a general observation or obiter dicta of the Supreme Court is to be given considerable weight. We have no doubt that the Act, 2005 does not prescribe any further appeal or revision to the High Court or any other Court against an 5 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) order of the Sessions Court under Section 29 specifically and this is evident from a bare perusal of the Act, but, it is also a fact that the provisions of Section 397 of Cr P C were not taken into consideration in the aforesaid judgment, obviously for the reason that the maintainability of a revision under the said provision was not an issue involved therein. Reference may be made in this regard to a judgment of the Bombay High Court rendered by one of us (Dilip B Bhosale, J) in Shailaja A. Sawant (Dr) Vs Sayajirao Ganpatrao Patil, 2004 (5) Bom. CR 548, In that case, after considering several judgments of the Supreme Court, the distinction between a ratio decidendi and obiter dicta as also its precendenciary value was considered, the relevant extract of which is quoted herein below:-
"18. Thus, the law is now well settled as to what a ratio decidendi is. An obiter dictum as distinguished from ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. The law, which will be binding under Article 141 of the Constitution of India extends to all observations of the points raised and decided by the Court in a given case. The only opinion, which would be binding, would be an opinion expressed on a question that arose for determination of a Supreme Court. "Obiter dicta", therefore, as observed by the Supreme Court in State of Orissa v. Sudhansu Shekar Misra (supra), must be distinguished from casual observations made in a judgment on a point not calling for decision and not argued before the Court. The observation made in passing with reference to a general scheme of the Act would not constitute an obiter dicta which is binding upon this Court on questions of interpretation. A question which never arose before the Supreme Court, which was never argued, which was never considered and which was never decided could not be, therefore, termed as "obiter dicta". In the present case, the Supreme Court in the case of Dr. J. J. Merchant was not considering the issue as to whether the Court has power to extend the time beyond the period prescribed under the provisions of Section 13 of the Consumer Protection Act or under Order 8, Rule I of the Civil Procedure Code for that matter. Arguments were not 6 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) advanced in that case on the question involved in the present writ petition or the question that was involved in the case of Topline Shoes Ltd. (supra). Therefore, in my opinion, the observations made by the Apex Court in Dr. J. J. Merchant case will not come in my way for deciding the issue whether the trial Court has power to extend the time for filing written statement prescribed under Order 8, Rule 1."
22. It is also relevant to mention that the judgment of the Supreme Court in Shalu Ojha (supra) was considered by the learned Single Judge in Chiranjeev Kumar Arya in a judgment dated 29.06.2016 and a Revision was held to be maintainable, inter alia, relying upon an earlier judgment of the Supreme Court in Thakur Das (supra). The said judgment was carried to the Supreme Court and the S.L.P. filed against it has been dismissed on 12.08.2016. As already noticed earlier, therefore, the proposition laid down therein has attained finality. Thus, our view is supported by this development also.
23. In view of the above discussion, we are of the considered view that the observations of the Supreme Court in Shalu Ojha's case (supra) as contained in paragraph 19 do not tie our hands in considering the questions referred to us as the same did not fall for consideration directly and substantially before the Supreme Court.
24. A perusal of the Act, 2005, specially Section 28 thereof, reveals that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 are to be governed by the provisions of Cr P C, save as otherwise provided in the said Act. The offences under Section 31 are also to be governed by the said Code. Sub-section (2) of Section 28 permits the Court to lay down its own procedure for disposal of an application under Section 12 or under Sub-section (2) of Section 23 notwithstanding anything in Sub-section (1) thereof. Sub-section (2) is not attracted in the present case.
25. Section 36 of the Act, 2005 says that "the provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.
26. Section 29 of the Act, 2005 provides that "there shall lie an appeal to the Court of Sessions." Section 29 does not indicate the procedure applicable to such proceedings of 7 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) an appeal. There is no provision in the Act, 2005 which permits the Court to lay down its own procedure for hearing an appeal under Section 29. The Rule making power under Section 37, even if stretched to include the power to make rules of procedure for an appeal under Section 29 by virtue of the generality of the provision contained in Sub-section (1) thereof, none of the parties have placed before the Court any Rules prescribing such procedure for an appeal as aforesaid.
27. The question is what is the procedure prescribed for an appeal under Section 29. After all there has to be some procedure in this regard. The answer lies in the use of the words "there shall lie an appeal to the Court of Sessions." The Court of Sessions referred therein is a Court of Sessions referred in Section 6 read with Sections 7 and 9 of the Cr P C, as the Act, 2005 does not define the said term. It is trite that whenever a remedy is provided before an already established Court, without saying anything more, the procedure ordinarily applicable to such a Court applies for the purposes of such remedy also. Reference may be made in this regard to the pronouncement of the Supreme Court in the case of National Sewing Thread Co. Ltd, Chidambaram (supra), wherein it was observed thus:
"...The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co. Ltd. vs. Postmaster-General, (1913) AC 546 (A), in these terms:-
"When a question is stated to be referred to an established court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches."
The same view was expressed by Their Lordships of the Privy Council in - Adalkappa Chettiar vs. Chandresekhara Thevar, AIR 1948 PC 12 (B), wherein it was said:
"Where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable 8 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) thereto and an appeal lies if authorized by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal."
28. The ratio contained in the said judgment, as quoted hereinabove, applies on all its fours to the present case before us.
29. In Secretary of State for India Vs. Chellikani Rama Rao, AIR. 1916 PC 21, the question arose as to whether a Letter's Patent Appeal was maintainable from a judgment of a Single Judge rendered in proceedings arising out of Section 76 of the Trade Marks Act. The Supreme Court held that Section 76 of the Trade Marks Act confers a 23 right of appeal to the High Court "and says nothing more about it". That being so, it held that the High Court has to exercise its other appellate jurisdiction by a Single Judge. Therefore, his judgment becomes subject to appeal under Clause 15 of Letter's Patent Act, "there being nothing to the contrary in the Trade Marks Act." Thus, the procedure applicable to the proceedings before the Single Judge under the Rules of the Court or the Letter's Patent Act was made applicable on the reasoning that the Trade Marks Act prescribed an appeal to the High Court without saying anything more "as regards the procedure to be followed" and there being nothing to the contrary in the Trade Marks Act (excluding any such procedure). This judgment was also considered in National Sewing Thread's case (supra).
30. These judgments have also been referred and relied upon by the Supreme Court in the case of Maharashtra State Financial Corporation (supra), wherein, a similar proposition has been laid down while considering the applicability of the Cr P C to the proceedings before the District Judge under the State Financial Corporation Act, 1951.
31. In the case of ITI Ltd. (supra), the question which fell for consideration before the Supreme Court was regarding the maintainability of a revision under Section 115 of the Code of Civil Procedure, 1908 before the High Court against an order passed by a Civil Court in an appeal preferred under Section 37 of the Arbitration and Conciliation Act, 1996, specially, when a Second Appeal was statutorily barred under the Act and the Code of Civil Procedure was not specifically 9 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) made applicable. Thus, the question was quite similar to the one referred to us. The Supreme Court opined in paragraph 10 as under:-
"...It is true in the present Act application of the Code is not specifically provided for but what is to be noted is: is there an express prohibition against the application of the Code to a proceeding arising out of the Act before a Civil Court? We find no such specific exclusion of the Code in the present Act. When there is no express exclusion, we cannot by inference hold that the Code is not applicable."
32. Rendering a concurring judgment in the said case D.M. Dharmadhikari, J of the Supreme Court observed in paragraph 19 thereof thus:
"...when a special Act on matters governed by that Act confers a jurisdiction on an established court, as distinguished from a persona designata, without any words of limitation, then the ordinary incident of procedure of that court including right of appeal or revision against its decision is attracted..."
33. Based on the aforesaid reasoning and following the judgments already referred earlier, the Supreme Court held a revision under Section 115 of C P C to be maintainable against an order passed under Section 37 of the Arbitration and Conciliation Act, 1996.
34. Further more, in the case of Thakur Das (supra) the question which fell for consideration before the Supreme Court was regarding maintainability of a Revision under Section 435 and 439 of the Code of Criminal Procedure 1898 (old Code) against an order passed by the Sessions Judge under Section 6-C of the Food and Essential Commodities Act, 1955 (hereinafter referred to as 'the Act, 1955'). Sections 439 and 435 of the old Cr P C and Sections 397 and 401 of the existing Code of Criminal Procedure, 1973, are in pari materia,and, therefore, the question which fell for consideration in the said case was similar to the one referred to us. Under Section 6-C of the Act, 1955 the State Government was empowered to appoint a judicial authority to hear an appeal. The State Government issued a notification appointing the Sessions Judge as Appellate Authority. The Supreme Court on a consideration of the aforesaid issue held that the Sessions 10 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) Judge exercising power of appeal under Section 6-C of the Act, 1955 would only be the Judge Presiding over the Sessions Court and discharging the functions of that Court constituted under Section 7 and 9 of the Code of Criminal Procedure, 1898. The case at hand is no different and the said observations apply to the present case also. The Supreme Court further held that the Sessions Judge acting as an Appellate Authority under Section 6-C of the Act, 1955 "exercising judicial power of the State is an authority having its own hierarchy of superior and inferior Court, the law of procedure according to which it would dispose of matters coming before it depending upon the nature of jurisdiction exercised by it acting in judicial manner." Thus, it held that the law of procedure applicable to a Sessions Court would apply to the Appellate Authority under Section 6-C as he was not a persona designata but a person ascertainable as a member of Class or as filling a particular character. It was further held in paragraph 11 that "the Sessions Judge though appointed as an Appellate Authority by the State Government was the Sessions Court constituted under the Code of Criminal Procedure and it being Court of inferior character in relation to the High Court, therefore, against the order made in exercise of powers conferred by Section 6-C of the Act, 1955 a revision application would lie to the High Court under Section 435 and 439 of the Code of Criminal Procedure, 1898". This judgment virtually clinches the issue as regards the questions referred to us.
35. Under Section 397 of Cr P C "the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court...". That the Court of Sessions is as an inferior Court to the High Court, cannot be disputed. Thus, the Court of Sessions before which an appeal has been prescribed under Section 29 of the Act, 2005 is a Criminal Court inferior to the High Court and, therefore, a revision against its order passed under Section 29 will lie to the High Court under Section 397 Cr P C. Section 401 Cr P C is supplementary to Section 397 Cr P C.
36. Section 4 (2) Cr P C does not have any application to the present case. Since the Act, 2005 does not prescribe any special formof procedure either for the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 or for an appeal under 11 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) Section 29, therefore, Section 5 is also not attracted.
37. In view of the above, as the remedy of an appeal had been provided under Section 29 of the Act, 2005 before a Court of Sessions, which means a Court of Sessions referred under Section 6 read with Sections 7 and 9 of the Cr P C, without saying anything more as regards the procedure to be followed in such appeal, and there being nothing to the contrary in the Act of 2005 which may be indicative of exclusion of the application of the provisions of Cr P C to such an appeal, the normal remedies available against a judgment and order passed by a Court of Sessions by way of appeals and revisions prescribed under the Cr P C before the High Court, are available against an order passed in appeal under Section 29 of the Act, 2005.
38. The Single Judge Benches of this Court in the case of Nishant Krishan Yadav (supra) and Mrs. Manju Sree Robinson (supra) have erred in holding that such a criminal revision is not maintainable before the High Court. The judgment in Chiranjeev Kumar Arya (supra) against which the Special Leave Petition has been dismissed by the Supreme Court on 12.08.2016 and the judgment in Prabhunath Tiwari (supra) lay down the law correctly.
39. In the result, we answer the first question in the affirmative holding that the decisions in Nishant Krishna Yadav (supra) and Manju Shree Robinson (supra) do not lay down the law correctly. In other words, we hold that a revision under Section 397/401 of Cr P C against a judgment and order passed by the Court of Sessions under Section 29 of the Act, 2005 is maintainable and that the decisions in Nishant Krishna Yadav (supra) and Manju Shree Robinson (supra) do not lay down the law correctly.
11. Thus, the Full Bench of the Allahabad High Court has interpreted the observations made in para-27 by the Apex Court in its judgement and has observed that the aforesaid observation does not amount to in-applicability of Sections 397/401 of Cr.P.C. even in respect of an order passed under Section 29 of the Act of 2005.
12. In view of the aforesaid Full Bench decision along other 12 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) submissions in respect of Sections 28 and 36 of the Act of 2005, this criminal revision filed by the applicant-Javed Khan is found to be maintainable and the objection regarding its maintainability is rejected.
13. Having crossed the threshold of question regarding maintainability of this criminal revision, the application (IA No.1515/2020) shall now be taken up.
14. In the aforesaid application, the non-applicant seeks revocation of stay order dated 31.01.2020 passed by this Court, which reads as under :-
"--------------------------
Meanwhile, parties are directed to maintain status quo as it exists today, till the next date of hearing."
15. In the aforesaid application, it has been mentioned that the JMFC, Indore, in order to ensure execution of the order passed by the Sessions Court regarding possession of the house to non-applicant- Saba had written a letter to the SHO, Sirohi as also to the Women Development Officer, Sirohi. Pursuant to that order, the Additional Director, Women Empowerment Department, Sirohi visited the aforesaid house at Sirohi and affixed notice on the house on 24.01.2020 in which a direction has been made to comply the order by 26.01.2020 but compliance of the aforesaid notice was not made by the applicant and therefore, a letter to that effect was sent by the concerned officer of the Women Empowerment Department to the JMFC, Indore, copy of which is placed on record. In the application for vacating stay, it has been mentioned that applicant has since opened the lock of his house and has assumed its occupation. It has 13 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) further been stated that in order to prevent any further action against him, applicant has got the matter de-listed and has indulged in throwing away the goods belonging to the non-applicant from that house hence, order dated 31.01.2020 has been prayed to be set aside and further a prayer has been made to take action against applicant- Javed Khan for committing contempt of Court. The non-applicant- Saba has filed copy of the letter sent by the officer of the Women Empowerment Department to the JMFC, Indore along with two photographs dated 08.02.2020 showing that applicant came out of the aforesaid house and riding away on a two wheeler from that house, thereby showing that applicant assumed illegal possession of the house.
16. Learned counsel for the applicant has rebutted the averments in the aforesaid application by way of filing written submissions. In the written submissions, it has been denied that the aforesaid house had been locked till 31.01.2020 and that neither of the parties were in occupation of the house till 31.01.2020. He submits that on the day notice was affixed on the house, applicant had gone out of the house for some work and as he had come back later on, he had opened the lock and was always in possession of the house even prior to 31.01.2020. It has been mentioned in the letter sent by the officer of Women Empowerment Department, Rajasthan does not bear any date of its despatch and below the signatures appended by the signatory, the date 28.01.2020 has been written which clearly shows that the aforesaid letter is prior to 31.01.2020 when the status-quo order was passed. The copy of the aforesaid letter was sent by the signatory to the counsel for the applicant which shows that counsel for the applicant was directly involved and was causing undue interference 14 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) by showing his overt interest.
17. Learned counsel for the applicant denies that he has caused any contempt of order dated 31.01.2020. It has been mentioned that it is the applicant only who had purchased the plot and thereafter had constructed the house and that he does not have other alternative accommodation than residing in the house, that applicant was in occupation of the house on 31.01.2020 and continuously to be in possession of the house.
18. Strong objections have been raised by the counsel for the non- applicant regarding the allegation that the matter was being deliberately de-listed by the applicant. It has been mentioned that applicant had got his flight tickets booked much earlier i.e. on 05.01.2020 for leaving Indore on 07.02.2020 and the counsel was out for his personal work from 07.02.2020 to 11.02.2020 hence, de- listing application has been filed. As per the application, such baseless allegations calls for disciplinary action against the applicant. In his additional submissions, it has been stated that the applicant had forcibly tried to occupy the house on 18.05.2018 after breaking open the lock. Report placed at Annexure-A/14 was then filed on behalf of the applicant, that previously an order was passed on 18.01.2019 by the Court in which non-applicant had only been given the relief to reside in the house and not obtain its complete occupation. This order dated 18.01.2019 was not challenged by the non-applicant and again an interim application was filed which is an instance of abuse of process of the Court.
19. Learned counsel for the applicant further submits that the non- applicant has made false averment regarding her educational qualifications that she has studied only upto 10th Standard whereas 15 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) she has completed her Diploma in Dental Technology in the year 2001-02 and she is working as a Helper Compounder at Sirohi and earning her living whereas, non-applicant is barely able to sustain herself and her old parents with the meagre income. The applicant prays that the application of non-applicant be rejected with a cost of Rs.10,000/-.
20. As far as the question of vacating stay order dated 31.01.2020 is concerned, it can be seen that this order had provided for maintenance of status-quo only till the next date of hearing. Hence, it is open for this Court to decide as to whether the aforesaid order is to be revoked or not in the light of the submissions made by the counsel for both the parties.
21. Learned counsel for the non-applicant has submitted that the Sessions Court in its order passed in Cr. A. No.249/2019 had directed applicant-Javed Khan to hand over the complete possession of the house No.1/99 situated at Housing Board Colony, Sirohi to the non- applicant without further interference in her peaceful possession by the applicant and others.
22. In the judgement pronounced in Cr. A. No.249/2019, in para- 23, it has been found that the house in question, which is House No.1/99, Block No.1, total area 90 sqm. sSituated at Sirohi, Rajasthan was purchased by the non-applicant-Saba, that in the aforesaid sale- deed, it has nowhere been stated that the consideration was paid by the applicant-Javed Khan, that sale-deed was executed on 16.06.2010 in which it has been stated that the full consideration has already been paid and therefore, submissions of applicant that he had prior house loan of later date i.e. 14.09.2010 is not justified in respect of the house in question.
16THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba)
23. On perusal of documents at page-117 by the non-applicant show that the copy of sale-deed depicts that Uttamchand had sold the aforesaid house to the non-applicant (document R/13). The document R/17 at page-182 shows no objection certificate issued by the Branch Manager, State Bank of India, Sirohi in the name of non-applicant- Saba, in which it has been stated that there are no dues towards loan account against her. The non-applicant has stated that she had taken the help of her parents and brother for paying off the loan. The document R/19 at page-196 shows payment of Rs.3,05,029/- by the brother in the account of non-applicant-Saba. Similarly, the account statements of father and sister have also been filed by her. Thus, as per documentary evidence, house in question is owned by the non- applicant-Saba and the bank has communicated with her only. Prima- facie, it an appropriate conclusion drawn by the Appellate Court in para-23 of the judgement that even it be assumed that applicant-Javed Khan had paid the consideration, then also the house would be considered to be share-household in which the aggrieved person alone has the right to reside exclusively. In para-27 of the aforesaid judgement, it has been mentioned that the relations between the two are such that it is not possible for them to stay together.
24. The non-applicant-Saba has filed photographs showing bruises on her person which are the result of blows inflicted upon her by the applicant-Javed Khan, which is supported with the statements of minor son of the non-applicant-Saba. Further, photographs have been filed by the non-applicant showing involvement of the applicant with other woman, one of whom is named Rashmi and other was Saniya with whom applicant-Javed had contacted Nikah after divorcing the non-applicant-Saba and this marriage has also resulted in divorce and 17 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Cr. R. No.420 of 2020 (Javed Khan vs. Smt. Saba) talaqnama is placed at Annexure-R/40.
25. Thus, even if it be assumed that applicant-Javed Khan was residing in the questioned house even prior to 31.01.2020, the aforesaid observations made by the Sessions Court and the annexed documents by the non-applicant show that she is the aggrieved person prima-facie having suffered brutality at the hands of the applicant and she is the owner of the house in question.
26. The preamble of the Protection of Women from Domestic Violence Act, 2005 is a benevolent Act for protecting the rights of the aggrieved women and the same is reproduced below :-
An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.
27. In view of the aforesaid discussions, it is concluded that the non-applicant-Saba prima-facie appears to be the victim of violence at the hands of the applicant-Javed Khan and she being the owner of the questioned house with there being no possibility of her sharing the questioned house with the applicant, application for revoking the stay order dated 31.01.2020 deserves to be allowed and the order is hereby revoked. I.A. No.1515/2020 stands allowed in aforesaid terms.
28. List the matter for final hearing in due course.
(Shailendra Shukla) Judge gp Digitally signed by Geeta Pramod Date: 2020.11.05 17:53:49 +05'30'