Delhi District Court
Smt. Manju Gupta vs Pankaj Gupta on 21 April, 2016
IN THE COURT OF SH. NARESH KUMAR MALHOTRA: ASJ05 : WEST
DISTRICT, TIS HAZARI COURTS, DELHI
C.A No. 14/16.
In the matter of :
Smt. Manju Gupta,
D/o Sh. Champa Lal,
r/o 47/35, Punjabi Bagh (West),
New Delhi. ............ Appellant.
VERSUS
1. Pankaj Gupta,
S/o Sh. Prem Prakash Gupta,
r/o F02, Ispatika Apartment,
Plot No. 29, Sector IV,
Dwarka, New Delhi
Also at:
47/35, Punjabi Bagh (West), New Delhi.
2. Prem Prakash Gupta,
S/o Late Gobind Sahai,
r/o F02, Ispatika Apartment,
Plot No. 29, Sector IV,
Dwarka, New Delhi
Also at:
47/35, Punjabi Bagh (West),
New Delhi. ............. Respondent.
DATE OF INSTITUTION : 02.03.2016
DATE OF RESERVING THE JUDGMENT : 11.04.2016
DATE OF DECISION : 21.04.2016
JUDGEMENT
1. This is an appeal against order dated 01.03.2016 passed by the ld. CA No. 14/16. Page No. 1 of 8 MM. Vide which the application of the appellant seeking protection from dispossession from the matrimonial house was dismissed by the Ld. MM.
2. Aggrieved by the order dated 01.03.2016, the present appeal has been filed on the ground that the Ld. MM has committed a palpable error by not considering the facts in proper perspective by drawing wrong inference that the appellant is trying to get and enforce property rights whereas the appellant under an independent right sought protection from dispossession from the shared household property. Ld. MM has wrongly held that the appellant by way of this application is trying to grab the property. The RFA 102/2013 titled as "Master Pranav Gupta Vs. Prem Prakash" was filed by son of the appellant as he has independent rights in the property as coparcener and the appellant was not a proper party in the RFA nor the appellant had sought any independent right in respect of the property. The present application of the appellant was solely preferred to protect her independent rights being a legal wedded wife who is otherwise entitled for share house hold in the property owned by respondent no. 2 and the husband of the appellant i.e. respondent no. 1 has the lawful right of inheritance. Ld. MM has ignored the fact that the execution petition referred therein in the impugned order is solely against the respondent no. 1 and the same was obtained by respondent no. 2 to dispossess the appellant and her autistic son from the shared household accommodation. Ld. MM has erred in observing that the outcomes of the various proceedings pending or decided against the respondent no. 1 is clearly bypass by not providing effective protection of the right of the women guaranteed under CA No. 14/16. Page No. 2 of 8 constitution who are victims of domestic violence. Ld. MM has acted in contrary to the spirit of the domestic violence Act by not implementing the provisions enshrined under Section 2(s) and 17 and 19 of the D.V. Act. Ld. MM has failed to consider that appellant being a daughter in law is still residing in the shared household. It is prayed that order dated 01.03.2016 passed by the Ld. MM be set aside.
3. Reply to the appeal filed by the respondent No. 1, wherein it is mentioned that the present appeal is liable to be dismissed as the appellant has concealed material particulars of the civil litigations. It is mentioned that suit for possession was filed by the respondent no. 2 against the respondent no. 1 and suit was decreed vide judgment and decree dated 31.08.2002. RFA No. 792/2002 and Special Appeal to Leave bearing SLP (Civil) No. 19361/2012 filed by the respondent no. 1 were dismissed vide orders dated 30.11.2011 and 24.07.2012. The execution petition bearing No. 15/2013 seeking execution of decree dated 31.08.2002, as affirmed by the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India, is pending. It is also mentioned that appellant tried to avail a stay on the property bearing No. 47/35, Punjabi Bagh, Delhi before the executing court which was denied vide order dated 24.08.2013. Revision petition bearing Rev. No. 155/2013 against the order dated 24.08.2013 was also dismissed as withdrawn vide order dated 19.08.2014. The suit bearing CS (OS) No. 2653/1995 filed by the respondent no. 1 seeking partition of the properties including property No. 47/35, Punjabi Bagh, Delhi, against the respondent no. 2 was dismissed vide judgment CA No. 14/16. Page No. 3 of 8 dated 25.07.2012 but no appeal was filed against judgment dated 25.07.2012. The suit bearing CS (OS) No. 598/2011 filed by the appellant as guardian for her minor son Master Pranav Gupta was dismissed vide judgment dated 06.05.2013 passed by the Hon'ble High Court of Delhi. Appeal bearing RFA No. 102/2013 preferred against the said judgment has been dismissed as withdrawn vide order dated 03.02.2016. It is mentioned that in view of the above mentioned litigations the ownership rights of the respondent no. 2 over the property bearing No. 47/35, Punjabi Bagh, Delhi has become absolute and crystallized. There are no domestic relationship between the appellant and the respondent no. 2. The property bearing No. 47/35, Punjabi Bagh Delhi does not fall under the category of "shared household". The present appeal deserves dismissal as this court is bound by the orders passed by the Hon'ble Supreme Court of India. It is mentioned that present appeal deserves dismissal as in the garb of the present appeal the appellant has sought the relief of property rights ignoring the orders of the superior courts and it is settled law that resort of DV Act cannot be done to enforce property rights. The present appeal deserves dismissal in as much as allowing the appeal would mean staying of the execution proceedings based upon order passed by Ld. ADJ. It is also mentioned that execution petition can only be stayed by the executing court itself by virtue of Order XXI Rule 26 of CPC. The executing court is itself empowered to determine all questions between the parties or their representatives. The present appeal has been filed only to harass the respondents. The respondent no. 2 has been living separately from the appellant since 1994 when the respondent no. 2 had shifted to Bangalore. Even after returning to Delhi after 23 CA No. 14/16. Page No. 4 of 8 years, the respondent no. 2 has never stayed with the appellant and was forced to stay in rented accommodation. The appellant is not residing in property bearing No. 47/35, Punjabi Bagh. It is prayed that appeal be dismissed.
4. Similar reply was filed by the respondent no. 2.
5. I have heard ld. Counsel for the appellant and Ld. Counsel for the respondents at length and perused the record of this court as well as Trial Court Record very carefully.
6. Perusal of the file reveals that appellant has filed a petition u/s. 12 of the Protection of Women from Domestic Violence Act. Ld. MM has directed the respondent no. 1 to pay monthly sum of Rs. 45,000/ per month (i.e. Rs. 20,000/ per month to the complainant and Rs. 25,000/ per month to the child being autistic needs special care) upto 10th of each English Calender month from the date of filing of application till further orders.
During the pendency, of the proceedings, the complainant has filed application seeking protection from dispossession from the matrimonial home and Ld. MM vide impugned order dated 01.03.2016, dismissed the application.
7. In the present case, it is an admitted fact that respondent no. 2 filed civil suit against the respondent no. 1 and this suit was decreed vide judgment dated 31.08.2002 passed by Ld. ADJ. The respondent no. 1 filed appeal bearing CA No. 14/16. Page No. 5 of 8 RFA No. 792/2002 and this appeal was dismissed by the Hon'ble High Court of Delhi vide order dated 30.11.2011. The respondent no. 1 filed Special Appeal to Leave bearing SLP (Civil) No. 19361/2012 and this was also dismissed vide order dated 24.07.2012. It is also an admitted fact that execution petition bearing No. 15/2013 is also pending disposal. It is an admitted fact that appellant tried to avail a stay on the property bearing No. 47/35, Punjabi Bagh, Delhi before the executing court and Ld. Executing Court denied to grant any stay vide order 24.08.2013 and the appellant challenged the order dated 24.08.2013 vide revision petition bearing No. 155/2013 and this revision petition was dismissed by the Hon'ble High Court of Delhi vide order dated 19.08.2014. Thus, suit filed by the respondent no. 2 was decreed by the Ld. ADJ and respondent no. 1 filed RFA No. 792/2002 and Special Appeal to Leave bearing SLP (Civil) No. 19361/2012 before the Hon'ble High Court of Delhi and Hon'ble Supreme Court, which were dismissed vide orders dated 30.11.2011 and 24.07.2012.
As the Hon'ble High Court of Delhi and Hon'ble Apex Court of India have already dismissed the RFA and Special Appeal to Leave filed by the respondent no. 1, it cannot be said that suit filed by the respondent no. 2 against the respondent no. 1 was collusive suit. I am of the view that if application filed by the complainant/ appellant is allowed then it will amount to stay of the execution proceedings in execution petition No. 15/13. When the appellant has already approached the executing court for stay order and the application of the appellant was rejected by the Ld. Executing Court, I am of the view by allowing the present appeal, it will definitely be staying the execution petition pending before the Ld. CA No. 14/16. Page No. 6 of 8 ADJ.
8. It is vehemently contended by Ld. Counsel for the appellant that the property No. 47/34, Punjabi Bagh is shared house hold and the appellant comes under the definition of the aggrieved person as per Section 2(a) of Protection of Women from Domestic Violence Act, 2005. Ld. Counsel for the appellant has also drawn my attention towards Section 2 (f) of the Domestic Violence Act where "domestic relationship" are defined and he has also drawn my attention towards Section 2 (s) of the Act which defines "shared household".
Ld. Counsel for the appellant has placed reliance on judgment titled as "V.D. Bhanot Vs. Savita Bhanot" 2012(3) SCC 183. He has also placed reliance on judgment titled as "Richa Arya Vs. State of NCT of Delhi" Crl. Rev. Petition No. 300/2015.
On the other hand, Ld. Counsel for the respondent has placed reliance on judgments titled as "Harish Chand Tandon Vs. Darpan Tandon and Ors.", "Adil and Ors. Vs. State and Anr.", "Kavita Chaudhri Vs. Eveneet Singh and Anr." and "Harbans Lal Malik Vs. Payal Malik".
It is no where denied by the appellant that respondent no. 2, who is owner of the property has been living separately from the appellant since 1994 in a rented accommodation when the respondent no. 2 had shifted to Bangalore.
The judgment titled as "V.D. Bhanot Vs. Savita Bhanot" is not helpful to the appellant as Ld. MM has already granted maintenance to the appellant vide order dated 08.01.2016. I am of the view that judgments filed by the appellant are CA No. 14/16. Page No. 7 of 8 not helpful to the appellant at this stage, as admittedly, the respondent no. 2 is owner of the property No. 47/35, Punjabi Bagh, Delhi and Ld. ADJ passed a decree for possession in favour of the respondent no. 2 and against the respondent no. 1 vide judgment dated 31.08.2002. This Court cannot stay the proceeding pending for adjudication before the Ld. Executing Court when the matter has been decided by the Hon'ble Apex Court of Delhi. There is no illegality or infirmity in the order dated 01.03.2016. Ld. MM has passed a reasoned order. The appeal filed by the appellant is without any merits and same is hereby dismissed.
Copy of this judgment be sent alongwith the TCR.
Appeal file be consigned to Record Room, after necessary compliance.
Announced in the open Court
on 21.04.2016 (Naresh Kumar Malhotra)
ASJ05 (West)/THC/Delhi
CA No. 14/16. Page No. 8 of 8