Delhi District Court
Surender Singh vs Jaideep Solanki And Another on 20 September, 2023
IN THE COURT OF PRAVEEN KUMAR,
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
SOUTH-WEST DISTRICT, DWARKA COURTS,
NEW DELHI
MCA No. 5/2022
CNR No.-DLSW01-002377-2022
Surender Singh
S/o Shri Nahar Singh
R/o RZ-65, Dabri Extension (Main)
Gali No. 5, New Delhi-110045
....... Appellant
Versus
1. Jaideep Solanki
S/o Sh. Surender Singh
R/o F-197, Ist floor,
Sector-7, Dwarka,
New Delhi 110075 ....Respondent no. 1
2. Smt. Sudha
W/o Sh. Jaideep Solanki
R/o F-197, Ist Floor,
Sector 7, Dwarka,
New Delhi 110075 ....Respondent no. 2
Date of Registration of Appeal : 16.03.2022
Date of conclusion of arguments : 29.08.2023
Date of pronouncement of Decision : 20.09.2023
Memo of appearance:
Sh. Upender Thakur and Sh. Lalit Khatri, Ld. Counsel for the
appellant.
Sh. Piyush Goel, Ld. Counsel for respondent no. 1.
Sh. Sanjeev Kumar Sharma, Ld. Counsel for respondent no. 2.
MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 1 of 16
JUDGMENT:
1. The present appeal is directed against order dated 21.01.2022 passed by the court of Ms. Richa Gusain Solanki, the then Ld. JSCC/ASCJ/GJ, South-West, Dwarka Court, New Delhi vide which application under Order XXXIX Rules 1 and 2 Code of Civil Procedure (in short 'CPC') filed on behalf of present appellant has been partly allowed.
2. The appellant happens to be the father of respondent no. 1 and father-in-law of respondent no. 2.
3. For the sake of convenience, I would be referring to parties as per their nomenclature before the trial court. Therefore, appellant would be referred to as 'plaintiff''; respondent no. 1 as 'defendant no. 1'; and respondent no. 2 as 'defendant no. 2'.
VERSION OF THE APPELLANT/PLAINTIFF:
4.1 In the present appeal, the following key facts are essential for understanding the case:-
4.2 The plaintiff filed a suit seeking permanent and mandatory injunction against the defendants. The plaintiff claims ownership of a property bearing No. RZ-65, Dabri Extn (Main), Gali No. 5, opposite Dada Dev Hospital, New Delhi 110045 (herein-after referred to as 'suit property').
4.3 According to the plaintiff, the defendants were initially allowed to reside on the first floor of the suit property.MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 2 of 16
However, the plaintiff's wife, who was a cancer patient (now deceased), endured significant physical and mental distress due to the defendants' actions. As a result, the plaintiff issued a public notice on 01.05.2019, debarring the defendants from the property. Despite this notice, the defendants continued to harass the plaintiff and his wife.
4.4 On 15.06.2020, the plaintiff and his wife filed a police complaint against the defendants. Subsequently, the defendants agreed to vacate the suit property and relocated to a separate accommodation at B-197, First Floor, Sector 7, Dwarka, New Delhi. However, the plaintiff alleges that the defendants still maintain constructive physical possession of the suit property.
4.5 The wife of the plaintiff had previously filed an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (in short 'DV Act'). On 12.01.2021, the Learned Metropolitan Magistrate, Mahila Court, passed an order directing the defendants not to commit any acts of domestic violence against her.
4.6 Despite the court order, the plaintiff alleges that on 01.04.2021, the defendants unlawfully entered the suit property in the absence of the plaintiff and physically assaulted the plaintiff's wife. After this incident, the defendants continued to stay in the suit property without authorization and committed acts of violence against both the plaintiff and his wife. In response to these actions, the plaintiff filed another police complaint and submitted an application under Section 31 of the DV Act for the MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 3 of 16 violation of the court order issued on 12.01.2021.
4.7 Consequently, the plaintiff initiated the present suit, seeking a mandatory injunction against the defendants to vacate the unlawful possession of the First Floor of the plaintiff's self- acquired suit property. Additionally, the plaintiff prayed for a permanent injunction to prevent the defendants from entering the suit property.
VERSION OF THE RESPONDENTS/DEFENDANTS:
5. Defendant no. 1, in his written statement and response to the application under Order XXXIX Rules 1 and 2 CPC, alleged that he is the son of the plaintiff and has no intention of harming or mistreating his parents. He maintained that since his departure from the suit property, he has refrained from entering it. Defendant no. 1 shifted the blame for any disturbances in their lives onto defendant no. 2, alleging that it is the latter who had caused trouble. He claimed that on 17.10.2020, he and defendant no. 2 relocated to a separate residence in Sector 7, Dwarka, where they still maintain constructive possession. Defendant no. 1 further stated that he was physically assaulted by defendant no. 2, leading to his move to another rented property, resulting in him bearing the rent for two tenanted premises. He strongly maintained that, being the sole offspring of the plaintiff, he could not be excluded from his rightful place in their lives and the property.
6. Defendant no. 2, in her written statement and response to the application under Order XXXIX Rules 1 and 2 MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 4 of 16 CPC, averred that she has been the actual victim of physical and mental abuse and harassment, perpetrated by the plaintiff, his wife, and defendant no. 1. She alleged that defendant no. 1 deceptively relocated her to a rented dwelling in Dwarka under the pretense of better health conditions, against her will. According to her, ongoing disputes with defendant no. 1 led to her hospitalization for a period of 22 days. Further, she claimed that on 23.10.2020, when she returned to her matrimonial residence, defendant no. 1 forcibly sent her back to her parental home. Defendant no. 2 averred that her parents-in-law and her husband, i.e., defendant no. 1, were collaborating to her detriment. She also mentioned that she had lodged complaints with the CAW Cell, initiated proceedings under Section 125 Cr.P.C, and filed a civil suit for permanent injunction in the Family Court. It is stated that the plaintiff is claiming the relief of possession using the pretext of mandatory injunction to claim possession and has not valued the suit properly.
ORDER OF THE TRIAL COURT:
7. Subsequently, the trial court conducted a hearing on the interim application. Vide order dated 21.01.2022, the Trial court partially allowed the application of the plaintiff. Trial Court directed that defendant no. 1 should refrain from entering the suit property until the final decision of the case. However, concerning defendant no. 2, the court noted that the suit property served as her matrimonial residence, where she resided with her minor child. Consequently, the court refrained from ordering their eviction, recognizing that such an action would inflict irreparable harm upon them.
MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 5 of 168. Such order is under challenge before this court by way of present appeal.
ARGUMENTS:
9. The order dated 21.01.2022 passed by the Ld. JSCC/ASCJ/GJ is under challenge before this court on the following grounds:-
a. The plaintiff asserts ownership of the suit property as his self-acquired property, supported by documentary evidence on record.
b. Defendant no. 1 already resides in a separate rented accommodation at Sector 7, Dwarka, and defendant no. 2 lived with him until 01.04.2021 when they unlawfully entered the first floor of the suit property, prompting the plaintiff to file the present suit. The trial court, however, altered the status existing between the parties, contrary to principles governing mandatory injunction.
c. Defendant no. 2 is already receiving interim maintenance of Rs. 20,000 per month from defendant no. 1 as per Family Court's order.
d. Tragically, the plaintiff's wife committed suicide during the proceedings, and the plaintiff, who is elderly, seeks to live peacefully. Actions of Defendant no. 2, however, are causing him ongoing mental distress and emotional trauma. e. Even if according to Section 19 (1) (f) of the DV Act, defendant no. 2 is entitled to alternative accommodation during the subsistence of the matrimonial relationship. This alternative accommodation need not necessarily be the plaintiff's MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 6 of 16 house. Defendant no. 2 previously resided in a rented accommodation at Sector 7, Dwarka, and the plaintiff is willing to cover the rent for such a property. Additionally, he is prepared to offer a house owned by his late wife, Smt. Suresh Kumari, located at WZ-119, Second Floor, with roof rights, situated in Dabri Village, New Delhi, which is presently rented but can be vacated to accommodate defendant no. 2.
f. Defendant no. 2's own admission reveals that she vacated the suit property on 17.10.2020, following a police complaint lodged by the wife of the plaintiff. It is contended that this complaint was the first ever complaint and prior to this point in time, there was no complaint made by defendant no.1 and/or defendant no. 2 before any authority.
10. In support of his contentions, Ld. Counsel has relied up on law laid down in judgments - Madala Sood Vs. Maunicka Makkara & Anr., 2021 SCC Online Del 5217; and Ravneet Kaur Vs.Prithpal Singh Dhingra, RFA No. 832/2018 decided on 24.02.2022 by our Hon'ble High Court of Delhi.
11. Ld. Counsel representing defendant no. 1 has contended that defendant no. 1, being the son of the plaintiff son, harbors no ill intentions toward the plaintiff. It is contended that defendant no. 2 is the source of disturbances, while defendant no. 1 already resides independently in a rented property. It is further argued that disruptive actions of defendant no. 2 compelled the defendant no. 1 to cover the expenses of two separate accommodations.
MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 7 of 1612.1 Ld. counsel representing defendant no. 2 has vehemently opposed the appeal and argued that defendant no. 2 endured mental and physical abuse at the hands of the plaintiff and her other in-laws, including defendant no. 1, due to their unlawful dowry demands. Defendant no. 2 resided in the suit property, after her marriage but was later separated to the first floor of the same house, where she continues to live. It is contended that the suit property qualifies as a shared household, entitling defendant no. 2 to a right of residence under the DV Act, and disputes the plaintiff's claim of ownership, which relies on notarized rather than registered documents. Regarding the appellant's offer of an alternative house at Dabri Village, it is contended that the same is uninhabitable and unsuitable by defendant no. 2. Furthermore, the rented accommodation at Sector 7 is unsuitable due to her strained relationship with defendant no. 1, who has subjected her to physical and mental harassment.
12.2 Next, it is contended by Ld. Counsel for the defendant no. 2 that the plaintiff has filed the suit in response to her legal actions, including a permanent injunction suit and a DV Act complaint, which resulted in a restraint order. Despite the order, the plaintiff, defendant no. 1, and her other in-laws persist in harassing her and causing mental distress to both her and her minor child. In response to the appellant's argument that defendant no. 2 had initially stayed in a rented accommodation at Sector 7, Dwarka, and later returned to the suit property on 01.04.2021, defendant no. 2 alleges that she moved to the Dwarka residence under the false pretense of escaping MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 8 of 16 harassment by her in-laws, but defendant no. 1 resumed mistreatment there. A domestic violence complaint was filed against the defendants by the plaintiff's late wife, although in such complaint, there was not even a single allegation against the defendant no. 1. It is also stated that defendant no. 2 had to leave the rented accommodation after being served with a notice related to the complaint. Regarding the allegations of domestic violence by her late mother-in-law, it is argued that there is no evidence to support this claim, as no suicide note was found. Defendant no. 2 contends that the plaintiff's suit is motivated by a desire to remove her from the suit property, and it has been filed in collusion with defendant no. 1.
13. In support of his contentions, Ld. counsel has relied upon law laid down by Apex Court in Prabha Tyagi Vs. Kamlesh Tyagi, 2022 Legal Eagle (SC) 541.
ANALYSIS AND FINDINGS:
14. I have given my thoughtful consideration to the rival contentions and have perused the trial court record as well as impugned order carefully.
15. From the Trial Court record, it becomes evident that both parties are entangled in multiple legal disputes, with numerous allegations and counter-allegations against one another. On one side, the late mother-in-law of defendant no. 2 filed a domestic violence complaint against the defendants, while on the other, defendant no. 2 herself has raised allegations of domestic violence against defendant no. 1 and the plaintiff.
MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 9 of 16Additionally, defendant no. 2 has initiated proceedings under Section 125 Cr.P.C and filed a permanent injunction suit, seeking protection from eviction from the suit property. Consequently, she has raised triable issues. It is undisputed that defendant no. 2 currently occupies the first floor of the suit property with her minor child, while the plaintiff resides on the ground floor. Considering her strained relationship with her husband, defendant no. 1, it is not feasible to compel her to relocate to the rented residence in Sector 7 Dwarka. Moreover, since the appellant's wife has passed away, it would be unreasonable, at this juncture, to insist that defendant no. 2 vacate the premises, especially given the presence of her minor child.
16. Regarding the appellant's claim of ownership of the suit property and the argument that respondent no. 2 lacks the right to reside therein, it is crucial to note that respondent no. 2, following her marriage to respondent no. 1, has unquestionably lived in the suit property until 17.10.2020 and continues to reside there. She has made specific allegations of enduring mental and physical abuse at the hands of defendant no. 1 and her in-laws. Although she temporarily relocated to a rented accommodation with her husband, it is evident from their own admission that her relations with defendant no. 1 remained tumultuous, resulting in further allegations of harassment even during her stay in the rented residence. In light of these circumstances, the suit property qualifies as her shared household, as defined in Section 2(s) of the DV Act. Consequently, defendant no. 2 cannot be compelled to vacate this shared household. The trial court appropriately relied on the Supreme Court's judgment in Satish Chander MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 10 of 16 Ahuja Vs. Sneha Ahuja, (2021) 1 SCC 414, acknowledging that the issues raised by the parties can only be resolved based on the evidence presented by them during the trial of the case.
17. The appellant's contention that respondent no. 2 receives a monthly maintenance of Rs. 20,000 as per the Family Court's order is unrelated to the present suit. The provision of monthly maintenance by the husband to support his wife and minor child is a legal obligation and is separate from the right to reside in the shared household.
18. Regarding the appellant's contention that his wife has tragically passed away by suicide, and his desire for a peaceful life, this court does not find this argument compelling. This is because respondent no. 2, along with her minor son, currently resides on the first floor of the property. This situation differs from cases where parties share the same floor or flat and might interact frequently. Consequently, reliance on the judgment
- Ravneet Kaur (supra) is misplaced, as that case involved parties residing in a three-bedroom flat, where it was deemed inappropriate for them to co-exist and engage in constant conflict.
19. In response to the argument put forth by the appellant's counsel, claiming that the actions of respondent no. 2 inflict mental distress, emotional turmoil, and constant fear upon the appellant, this court holds that it is the joint responsibility of both parties to maintain peace and harmony. Given that both parties are entangled in multiple legal disputes, conflicts are MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 11 of 16 likely to arise, for which legal remedies are available to address them. However, ejecting respondent no. 2 at this stage would result in irreparable harm to her. Reliance on the judgment in Madala Sood (supra) is inapplicable here as the facts of the present case significantly differ from those of the cited case.
20. Further, the appellant has contended that under Section-19 (1) (f) of the DV Act, defendant no. 2 is entitled to alternative accommodation for the duration of the matrimonial relationship. According to Ld. Counsel for the appellant, the term "alternate accommodation" does not necessarily mandate that it must be a property owned by the plaintiff. In this context, the plaintiff has extended an offer before this court for the first time involving a property situated at WZ-19, Second Floor, with roof rights, located in Dabri Village, New Delhi, to defendant no. 2. I may add here that neither any application under Section-19(1) (f ) of the DV Act was moved on behalf of the appellant/plaintiff nor such a plea was taken before the trial court. It is settled law that only legal objections can be taken in appeal for the first time. Even otherwise, defendant no. 2 has raised objections, asserting that this particular property is situated outside the village and is unsuitable for habitation, especially considering the needs of her minor child. In Sneh Ahuja vs Satish Chander Ahuja, MANU/DE/3061/2021, our Delhi High Court has held as under:-
"24. The Supreme Court had considered the right of residence under the DV Act which includes the right of alternate residence and held that the right of residence would depend on evidence being led on there being a shared household and domestic violence, which were to be pleaded and proved by way of evidence. The right to MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 12 of 16 residence is closely connected to the aspect of 'shared household' and it is where situations were such that made it impossible for continued residence in a shared household, that the question of alternate residence would arise. The right to seek alternate residence thus flows from the right to a residence. Technically, it is the aggrieved person who can file an application including under Section 19(1)(f) of the DV Act. However, this Court had in the judgment dated 18th December, 2019 permitted the husband and in-laws to move an application under Section 19(1)(f) of the DV Act even before the Civil Court where their suit was pending.
37. In the present case, the learned Trial Court seems to have been particularly keen to pass an eviction order against the petitioner without proper application of mind to all the circumstances that could justify such an order of eviction.
38. In light of the special circumstances in the present case that : (a) since marriage, the petitioner has been in occupation of the first floor; (b) the premises in her occupation was separate from the premises in occupation of the respondents; (c) the subsistence of an injunction order in this very suit, restraining the petitioner from disturbing the possession of the respondents of the ground floor; (d) the fact that this order has not been violated by the petitioner; (e) the petitioner being pushed to file Execution Petitions to obtain the maintenance awarded to her; (f) the application moved by the petitioner for payment of the electricity charges in respect of the first floor of the premises where the petitioner is residing and the claim of the respondent No. 2 that he did not have the means to do so; (g) the uncertainty, in these circumstances of the respondents meeting their obligation of paying rent regularly, and (h) finally, the prevailing circumstances of the pandemic when such an order was passed, all reflect the perversity and unreasonableness of the impugned order. The directions issued to the petitioner to shift out to a rented accommodation were most unwarranted."
(Emphasis mine) MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 13 of 16
21. The appellant's argument that respondent no. 2 had vacated the suit property on 17.10.2020, following a police complaint filed by the plaintiff, is refuted by respondent no. 2. She asserts that respondent no. 1 engaged in frequent quarrels, physical abuse, harassment, and mental humiliation, which prompted her to return to her matrimonial home
22. Whether these allegations are veracious or unfounded, their veracity cannot be ascertained at this preliminary stage, necessitating a trial. Moreover, if the appellant were to be granted the reliefs sought at this juncture, it would leave nothing for adjudication in the future. It's noteworthy that the plaintiff has pursued identical remedies in the suit, which will only be adjudicated upon once the parties present evidence and undergo trial proceedings.
23. It is also worth noting that although the plaintiff has included defendant no. 1 as a party in the suit, his grievances appear to be primarily directed at defendant no. 2. Defendant no. 2 has, in fact, alleged that this is a collusive suit and that defendant no. 1 has been added as a party merely for appearance, suggesting a conspiracy between the plaintiff and defendant no. 1 to expel defendant no. 2 and her minor child from the suit property. Consequently, the complexity of the matter is evident, and a decision can only be reached following a trial where both parties present their evidence. The counsel for defendant no. 2 has appropriately cited the judgment of Prabha Tyagi (supra). In the said judgement, the Apex court held that if a woman in a MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 14 of 16 domestic relationship seeks to enforce her right to reside in a shared household, irrespective of whether she has resided therein at all or not, then the said right can be enforced under the Act. Moreover, a woman cannot be excluded from the shared household even if she has not actually resided therein. It was further held that right to reside in the shared household, includes not only actual residence but also constructive residence and such woman cannot be evicted except in accordance with the procedure established by law. It was further held that in cases where a woman remains in her parental home soon after marriage and is subjected to domestic violence, she is, therefore, an aggrieved person and has the right to reside in the shared household of her husband which could be the household of her in-laws.
24. Hence, considering the law laid down in Prabha Tyagi (supra), even if it is assumed that the complainant had shifted to a separate accommodation at Sector 7, Dwarka for a brief period and was not residing in her in-laws house for the said period, she did not lose her right to reside in her in-laws house.
CONCLUSION:
25. In view of my foregoing discussion, this court has no hesitation to hold that the order passed by the trial court is congruous and requires no interference. Thus, there are no reasons for this court to come to a different conclusion. Therefore, the appeal stands dismissed.
MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 15 of 1626. Nothing in this judgment shall tantamount to an expression of opinion on the merits of the case before the Trial Court.
27. Trial Court Record be sent back along with copy of this judgment.
28. Appeal file be consigned to record room.
Digitally signed by PRAVEEN PRAVEEN KUMAR
Announced in open courtKUMAR Date:
2023.09.20
On 20.09.2023 (sv) 11:25:52 +0530
(Praveen Kumar)
Principal District & Sessions Judge:
South West District
Dwarka Courts/Delhi
MCA No. 5/2022 Surender Singh Vs. Jaideep Solanki & Anr. Page 16 of 16