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Delhi District Court

Smt. Asha Arora vs Smt. Meenakshi on 7 April, 2022

       IN THE COURT OF SH. ABHINAV SINGH: CIVIL JUDGE
             NORTH WEST: ROHINI COURTS : DELHI

C.S. No. 111/17
CNR No. DLNW03­000219­2017

Smt. Asha Arora
W/o Sh. Narender Arora
R/o A­3/223, Sector­05,
Rohini, New Delhi­110085.                               ...Plaintiff
                                      VERSUS
1. Smt. Meenakshi
W/o Late Sh. Gaurav
R/o D/o Sh. Leela Kishan Arora

2. Sh. Leela Kishan
S/o not known
Both r/o H.No. A­9,
Hari Nagar, Delhi                                       ...Defendants


                  SUIT FOR PERMANENT INJUNCTION
                Date of institution      : 01.02.2017
                Date of decision         : 07.04.2022
                Final Order              : Decreed


EXPARTE JUDGMENT

                                BRIEF FACTS

1. As per the plaintiff, she is the absolute owner and in possession of the entire portion forming part of property bearing no. A­3/223, Sector­5, Rohini, Delhi (hereinafter called the "suit property"). 1.1. It is further submitted that the husband of the plaintiff is under treatment as he is suffering from mental diseases and defendant no. 1 is the daughter in law of the plaintiff and defendant no. 2 is the father of defendant no. 1.

1.2. It is further submitted that marriage between the son of the plaintiff and defendant no. 1 was solemnized on 15.02.2015 in a simple manner and no dowry was demanded by the plaintiff and his family members at the time of the marriage. After the marriage, plaintiff had provided separate portion at the first floor to her son and defendant no. 1 but after marriage, the defendant no. 1 started harassing, humiliating, torturing, and taunting the plaintiff and her family members on one pretext or the other and due to the heavy pressure and huge expenses by defendant no. 1, the son of the plaintiff i.e., Gaurav had had to take loan from his friends as well as others and all the loan were spent by the defendant no. 1. 1.3. As, the son of the plaintiff could not return the said loan amount, the creditors used to come at the premises of the plaintiff and used to extend threats to the son of the plaintiff. It is further submitted that son of the plaintiff and defendant no. 1 vacated the house of the plaintiff in the month of March 2016 after taking all the costly cloths, jewellery etc. 1.4. It is further submitted that thereafter defendant no. 1 started creating hindrance in the peaceful life of the plaintiff and used to visit at the house of the plaintiff and started demanding amount from the plaintiff and other family members and upon refusal, the defendant no. 1 and other family members started extending threats to the plaintiff to face dire consequences in future.

1.5. It is further stated that after 2­3 months, the defendants started creating problems through telephone by extending threats to regain possession of the portion at the first floor forming part of property bearing no. A­3/223, Sector­5, Rohini, New Delhi which was occupied by the son and the defendant no. 1 as permissible users of the suit property. 1.6. It is further submitted that due to heavy pressure and influence of the defendant no. 1 and defendant no. 2, the son of the plaintiff Gaurav CS No. 111/17 hanged himself on 20.09.2016 at the house of the plaintiff and after the death of son of the plaintiff, the defendant no. 1 took the remaining house hold items from the house of the plaintiff. Later, Defendant no. 2, allegedly, filed a false and frivolous domestic violence case against the plaintiff and other family members which is pending for adjudication. 1.7. It is further submitted that on different occasions the defendant no.1 and defendant no.2 visited the suit property and created ruckus to pressurize the plaintiff to give in to the demands of the defendants. Hence, the present suit.

2. On being served, the defendants marked their appearance before the court. Defendant no. 1 filed her WS and denied the contention raised by the plaintiff in the plaint.

2.1. It is submitted on behalf of defendant no. 1 that the contentions raised by the plaintiff are all forged and frivolous and not corroborated by any evidence on record.

2.2. It is further submitted that the family of the plaintiff demanded dowry at the time of marriage and the demand of which was fulfilled by the family members of the defendant no. 1.

2.3. It is further submitted that the relations between the plaintiff and her son were not cordial and that the husband of defendant no. 1 also took loan from the family members of defendant no. 1 which he never returned. It is further submitted that defendant no. 1 was never accepted as a daughter in law and was considered to be only a tenant.

2.4. It is further submitted that the husband of defendant no. 1 committed suicide at the house of the plaintiff and that all the furniture and items belongs to defendant no. 1 is still lying in the same room where she used to live before being forcefully dispossessed from her matrimonial house.

It is therefore prayed that the suit of the plaintiff may kindly be dismissed with heavy cost.

3. On the basis of the pleadings of the parties, following issues were framed vide order dated 28.07.2016:

(i) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for (OPP)

(ii) Relief TRIAL

4. In plaintiff's evidence, the plaintiff was examined as PW1 vide affidavit Ex. PW­1/A wherein she re­iterated the contents of the plaint and relied upon the following documents:

(i) Ex.PW­1/1 is the site plan;

(ii) Mark A is copy of property document of the plaintiff;

(iii) Mark B is the copy of the police complaint dated 01.12.2016;

(iv) Mark C is the copy of the complaint dated 23.09.2016;

(v) Mark D is the copy of the complaint dated 09.01.2017.

Later, upon being asked the plaintiff produced the title documents qua the suit property, existing in her favour and which are Mark A in the evidence presently. The documents were seen and were returned to the plaintiff.

PW1 was not cross­examined as the defendants had been proceeded against ex­parte.

Except above witness, no other witness was examined by the plaintiff and PE stood closed on 17.12.2021.

5. I have heard the arguments and the record has also been perused.

FINDINGS

6. Issues no. 1:

Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for (OPP).

The burden of proving the issue was upon the plaintiff. The plaintiff has deposed on the lines of her pleadings by way of her affidavit which is Ex.PW1/A.

7. The case of the plaintiff is that the plaintiff is the owner of the suit property, having purchased the same from its erstwhile owner, and that the defendant no. 1 was allowed to reside in the suit property only as a licensee and that she has no right or title therein. In support of this, the plaintiff has relied upon Mark A which are the documents such as GPA, Agreement to sell and purchase, receipt, etc. executed by one Sh. Dharmender Kumar Jain in favour of the plaintiff. These documents are dated 06.03.1997 and pertain to the suit property.

8. The plaintiff has also relied upon various police complaints made by her as well as her husband stating foul treatment of the plaintiff as well as her husband at the hands of the defendant no. 1 and her family members. Such conduct of the plaintiff in filing the complaints is relevant u/s 8 of Indian Evidence Act and provides credence to the version of the plaintiff. It is also not in dispute that the plaintiff is a senior citizen and more than 60 years old and the son of the plaintiff i.e., the husband of defendant no. 1 has already expired. Moreover, defendant no. 2 is the father of defendant no. 1 and does not have any right to visit the suit property without the permission of the plaintiff. The various complaints filed by the plaintiff with the police authorities specifically contains allegations against defendant no. 2 also.

9. On the other hand, the defendant no. 1 has not led her evidence and has not denied the factum of ownership of the plaintiff over the suit property.

Defendant no. 1 has only stated under paragraph 5 of the WS that the suit property is the shared household of defendant no. 1 where she used to reside with her late husband Sh. Gaurav Arora.

10. It is no longer res integra that in a suit for injunction where the relationship of licensor­licensee is alleged to exist, the Court is not required to adjudicate upon the question of title or ownership over the suit property. The scope of inquiry is limited to whether the defendant has a better title than the plaintiff. In the present case, there is nothing on record to show that the defendant no. 1 has a better title over the suit property as compared to the plaintiff. Accordingly, this Court finds that the defendant no. 1 does not have a better title over the suit property as compared to the plaintiff. Moreover, there is nothing to show that the suit property is a joint family property in which the husband of the defendant had any share.

11. Thus, the relevant question for determination now is whether the defendant has any right to reside in the suit property as the same is her shared household.

12. The right of a married woman to reside in property owned by her in­ laws has been discussed comprehensively and meticulously by the Hon'ble Supreme Court in its recent judgment of Satish Chander Ahuja (supra) where S.R. Batra (supra) was expressly overruled and it was categorically held that even the property belonging to the inlaws can constitute a shared household under Section 2(s) of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "DV Act"). The relevant extract from this landmark judgment is given below:

"64. In paragraph 29 of the judgment, this Court in S.R. Batra v. Taruna Batra (supra) held that wife is only CS No. 111/17 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 definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of "Respondent" under the Act. The Respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household. We are of the view that this Court in S.R. Batra v. Taruna Batra (supra) although noticed the definition of shared household as given in Section 2(s) but did not advert to different parts of the definition which makes it clear that for a shared household there is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband. The observation 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 CS No. 111/17 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." (emphasis added)

13. It was also held in Satish Chander Ahuja (supra) that in a suit instituted against a daughter­in­law, she has the right to raise the defence that she has a right to reside in the suit property as the same is her shared household and that it is necessary for the civil court to decide upon such defence by virtue of Section 26 of the DV Act. It is not necessary for the defendant daughter­in­law to specifically file any application under the DV Act for her to avail the rights granted to her thereunder. However, she will have to show that she is an aggrieved person and that the plaintiff father­in­law and/or mother­in­law are respondents within the provisions of the DV Act. The relevant extracts from Satish Chander Ahuja (supra) are given below:

"102. Learned Counsel for the Appellant submitted that in the suit in question the Defendant 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 CS No. 111/17 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 domestic violence by the Respondent, which is implicit in the definition of the aggrieved person itself as given in the Section 2(a) of the Act, 2005. It is, further, relevant to notice that although learned Magistrate passed an interim order in the application filed by the Defendant Under Section 12 on 26.11.2016 but said order was interim order which was passed on the satisfaction of the Magistrate that "the application prima facie disclosed that the Respondent is committing or has committed an act of CS No. 111/17 domestic violence". For granting any relief by the Civil Court Under Section 19 it has to be proved that the Respondent is committing or has committed an act of domestic violence on the aggrieved person. To treat a person as the "Respondent" for purposes of Section 2(q) it has to be proved that person arrayed as Respondent has committed an act of domestic violence on the aggrieved person.

104. We, thus, are of the view that for the purposes of determination of right of Defendant Under Sections 17 and 19 read with Section 26 in the suit in question the Plaintiff can be treated as "Respondent", but for the grant of any relief to the Defendant or for successful resisting the suit of the Plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the Defendant, only then the relief can be granted by the Civil Court to the Defendant. (emphasis added)

14. Thus, it is amply clear that while a house belonging to the plaintiff can be the shared household of the defendant, however, in order to be able to successfully establish that she has a right to reside therein, she should be able to prove that the plaintiffs have committed an act of domestic violence, as defined in Section 3 of the DV Act, upon her. It must also be borne in mind that the meaning of the term domestic violence is not just confined to physical violence but it is also inclusive of sexual, verbal, emotional and economic abuse.

15. In the instant suit, the defendant has made averments about certain CS No. 111/17 specific instances of dowry demand however, no such specific allegations or instances of violence or mental harassment are mentioned.

16. Thus, from a thorough consideration of the material on record and the applicable law as discussed above, this court finds that the defendant no. 1 has been unsuccessful in proving that she is an "aggrieved person"

who has been subjected to "domestic violence" by the "respondents" i.e. the plaintiffs herein. The conclusion that inevitably follows from this is that the defendant no. 1 has not been able to establish that she has any right of residence in the suit property on the ground that the same is her shared household.

17. Given that the plaintiff has a better title than the defendant and that the possession of the defendant no. 1 was permissive in nature, this court finds that the status of the defendant no. 1 in the suit property was that of a licensee of the plaintiff. The license having been revoked, the defendant has no right to reside in the suit property or to keep any of her articles therein.

18. Injunction is an equitable relief governed by Section 38 of the Specific Relief Act 1963 which provides that it may be given to prevent the breach of an obligation existing in the favour of the person claiming it. Thus, in order to be successful in the claim for the aforesaid permanent injunction, the plaintiffs must not only show that there exists a right in their favour, they must also prove that such right is being, or is threatened to be, infringed by the defendant. The threat of infringement should be actual and real, and must not be fanciful. An injunction is granted only when the injury to the rights of plaintiffs is reasonably expected and it cannot granted against the defendant to restrain him or her from doing any act which he or she she neither attempting not intending to do. Thus, CS No. 111/17 injunction cannot be given to assuage mere unfounded apprehensions of threat of injury. There must be at least a reasonable probability that the injury will be caused if no injunction is granted. Reliance in this regard may be placed on Sohan Singh v. Jhaman (P&H) 1986 R.R.R. 579 and Bheekam Chand v. Ismail AIR 2006 Raj 1.

19. Therefore, on a preponderance of probabilities, the plaintiff has discharged her onus of proof with respect to issue no. 1 and the same is decided in her favour.

20. The plaintiff is entitled to a decree of permanent injunction against the defendants.

CONCLUSION

21. In view of the above discussion, suit of the plaintiff is hereby allowed and the defendants, their family members, associates, agents, representatives, legal heirs etc. are hereby restrained from interfering in the peaceful enjoyment of the plaintiff and her family members over the suit property.

The defendants, their family members, associates, agents, representatives, legal heirs etc. are also hereby restrained from entering illegally and unlawfully in the suit property i.e. A­3/223, Sector­5, Rohini, New Delhi­110085.

No order as to cost. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance. Announced in open Court today.

(Abhinav Singh) Civil Judge­N/W District Rohini Court/07.04.2022 CS No. 111/17