Delhi District Court
Ram Prakash Sharma vs . Ambika Jain & Anr. on 31 October, 2018
Ram Prakash Sharma Vs. Ambika Jain & Anr.
IN THE COURT OF MS. JYOTI KLER, ADDL. DISTRICT JUDGE05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CS No. 810/17
Case ID No. DLST010072492017
In the matter of
Ram Prakash Sharma
Aged about 82 years
S/o Sant Ram Sharma
Residing at G104, Ground Floor And First Floor
Saket, Delhi - 110017 (M) 9871591515
within the jurisdiction aforesaid
.............Plaintiff
Versus
1. Ambika Jain
Aged about 42 years
W/o Kunal Sharma
Residing at G104, Second Floor
Saket, Delhi110017
within the jurisdiction aforesaid
2. Kunal Sharma
Aged about 42 years
S/o Ram Sharma
Residing at B21, Shanti Kunj
Delhi - 110070
within the jurisdiction aforesaid
..............Defendants
ORDER
1. This order shall dispose off an application under Order XII Rule CS No.810/17 Page 1 of 13 Ram Prakash Sharma Vs. Ambika Jain & Anr.
6 r/w Section 151 CPC filed by the plaintiff. The instant suit is an offshoot of a matrimonial litigation between defendant no. 1 and defendant no.2 who are husband and wife. Plaintiff is the father of defendant no. 2 and father in law of defendant no.1.
2. The suit has been filed by the plaintiff for eviction of the defendant from second floor of the property bearing no. G104, Saket, New Delhi - 110017 (hereinafter referred as "the suit property"), recovery of arrears of rent and damages.
3. It is averred by the plaintiff that the suit property is his self acquired property. The defendant no. 2 was permitted to reside in the suit property as a licensee in the year 2005. He married to defendant no. 1 on 18.12.2009, after which defendant no. 1 started residing in the suit property with defendant no.2. In April 2011, plaintiff and defendant no. 2 entered into an oral arrangement whereby the suit property was leased to defendant no.2 for a monthly rent of Rs.20,000/ excluding electricity charges which were to be borne by defendant no. 2 himself. Due to marital discord, defendant no. 2 moved out of the suit property in December, 2015. He regularly paid the rent from April, 2011 till August, 2016 but has not paid the rent since September, 2016 despite reminders. A notice dated 05.04.2017 was issued to the defendant no. 2 terminating his tenancy and calling upon him to pay arrears of rent. A notice was also sent to defendant no.1 since she was residing in the suit property. Defendant no. 2 replied to the notice on 12.05.2017 stating that he was not in a CS No.810/17 Page 2 of 13 Ram Prakash Sharma Vs. Ambika Jain & Anr.
position to hand over peaceful and vacant possession of the suit property because defendant no. 1 continued to reside there despite their estranged relationship. The defendant no. 1 also answered the termination notice vide reply dated 19.04.2017 denying the tenancy between plaintiff and defendant no.2. She however admitted that the plaintiff is the owner of the suit property but claimed that suit property was her matrimonial home and shared household. She also sent a demand draft to the plaintiff towards unpaid arrears of rent which has not been encashed by the plaintiff since the defendant no. 2 had promised to clear the arrears of rent. The plaintiff sent a rejoinder dated 05.08.2017 to the defendant no. 1 denying her assertion that suit property was her matrimonial house. When defendants did not vacate the suit property, plaintiff instituted the present suit with following prayers:
i) Declare that the lease between the plaintiff and the defendant no. 2 stood terminated on 22.04.2017;
ii) Declare that the defendant no. 1 has been in illegal and unauthorised occupation of the suit property w.e.f. 22.04.2017;
iii) Grant a decree of mandatory injunction directing the defendant no.1 to handover peaceful and vacant possession of the suit property to the plaintiff.
iv) Pass a decree against defendant no. 2 for recovery of a total sum of Rs.1,40,000/ (Rupees One lac Forty Thousand Only) towards arrears of rent for the months of September 2016 to April 2017 along with interest Rs.8.400/ @ 18% per annum from May 2017 up to the date of institution of the present suit;
v) Pass a decree for recovery from the defendants, jointly and severally, a total sum of Rs.2,40,000/ (Rupees Two lacs Forty Thousand Only) towards damages of Rs.60,000/ per month for illegal and unauthorised occupation of the suit property by defendant no. 1 from May 2017 to August 2017;
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vi) Pass a decree for recovery of an amount of Rs.60,000/ per month from the Defendants, jointly and severally w.e.f. September 2017 up to the date of handing over of possession of the suit property, along with escalation of 10% per annum w.e.f. May 2018, for the illegal and unauthorized occupation of the suit property by the defendant no.1;
vii) Pass a decree for interest at the rate of 18% per annum on the decreetal amount / sum till the date of actual payment;
viii) Award costs of this subject Civil Suit to the plaintiff.
4. Summons of the suit was issued to the defendants. Defendant no. 1 filed written statement averring that she had initiated proceedings under Domestic Violence Act against defendant no. 1 on account of cruel treatment meted out to her. She claimed that the suit property is her matrimonial house in which she has a right to residence in terms of Section 17 of the Domestic Violence Act, 2005. It is stated that the instant suit has been filed by the plaintiff in connivance with defendant no. 2 only to pressurize the defendant no. 1 to settle the matrimonial disputes. She admitted in her written statement that defendant no. 2 shifted to a rented accommodation in December, 2015. She stated that she was residing with defendant no. 2 in the suit property from 2009 till 2015 however. She also stated that the arrangement regarding tenancy between plaintiff and the defendant no.2 was made only for the purpose of avoiding the tax leviable on House Rent Allowance that defendant no. 2 was receiving. The defendants were residing in the suit property as owners because the defendant no. 2 had made many structural changes in the suit property and even electricity meter is in his name. It is further stated by the defendant no. 1 that she sent a demand CS No.810/17 Page 4 of 13 Ram Prakash Sharma Vs. Ambika Jain & Anr.
draft to the plaintiff towards unpaid arrears of rent without prejudice to her rights and contentions.
5. Defendant no. 2 also filed written statement admitting that he was tenant of plaintiff and paying rent to the tune of Rs.20,000/ per month. He also admitted that he was in arrears of rent from September, 2016. He admitted receipt of notice of termination. He stated that he was not responsible for any occupational charges because it is the defendant no. 1 who refused to vacate the suit property. He stated that he was currently residing at B21, Shanti Kunj, New Delhi.
6. Replication to the written statement of defendant no. 1 was filed by the plaintiff wherein it is stated that the Ld. Magistrate, before whom complaint under Domestic Violence Act was filed, did not summon the plaintiff and rather observed that there was no domestic relationship between the plaintiff and defendant no.1.
7. In the application under Order XII Rule 6 CPC it is stated by the plaintiff that the defendants have admitted that the defendant no. 2 was a licensee till March 2011; that defendant no. 2 became a tenant of the plaintiff w.e.f. April 2011; that defendant no. 2 was in arrears of rent; and that the tenancy has been terminated. It is further stated that defendant no. 1 also admitted ownership of the plaintiff over the suit property as is recorded in the order dated 04.12.2017. In view of said admissions, plaintiff is entitled to a CS No.810/17 Page 5 of 13 Ram Prakash Sharma Vs. Ambika Jain & Anr.
decree of possession and recovery of arrears of rent from the defendants, who are liable jointly and severally.
8. Reply to this application was filed by defendant no. 1. She reiterated that she has a right to reside in the suit property in view of Section 17 of Domestic Violence Act, 2005. She also stated in the reply that the suit property was built for defendant no. 2 on his return from United States and an electricity meter in the name of defendant no. 2 has been installed in the suit property. Defendant no. 2 has shifted to a rented accommodation. The suit property is the shared household of defendants no. 1 & 2 and defendant no. 1 cannot be evicted from the said house. She also stated that the right of aggrieved woman under Section 17 of Domestic Violence Act, 2005 cannot be bypassed and this Court can grant relief to defendant no. 1 even under Section 26 of Domestic Violence Act, 2005.
9. Arguments were heard on the application and record has been perused.
10. I have also perused the various documents filed on record by the parties which include reply dated 19.04.2017 sent by the defendant no. 1 to the legal notice dated 05.04.2017 sent by the plaintiff. It is stated in the said reply that the defendant no. 2 is the only prospective heir to the estate of the plaintiff and the suit property was specially built by the plaintiff for the residence of defendant no.2. It is further stated that even the electricity meter was CS No.810/17 Page 6 of 13 Ram Prakash Sharma Vs. Ambika Jain & Anr.
installed in the name of defendant no. 2 by the plaintiff. These facts are so stated in para no. 2, 3 and 4 of the reply dated 19.04.2017. It is clear from the aforesaid reply to the legal notice, and also from reading the contents of the written statement filed by defendant no. 1 that there is no dispute over the fact that suit property is owned by the plaintiff. Plaintiff is father in law of defendant no. 1.
11. During final arguments various judgments were relied upon by Ld. Counsel for the plaintiff which are as below:
i) Anukriti Dubey Vs. Partha Kansabanik and Anr.:
(2016) 229 DLT 84:
"40. The tenanted premises where a woman lives with her husband would definitely come within the category of shared household but as long as the tenancy survives.
................
43. It would not be lawful, in the opinion of this Court, to force an outsider who is not privy to any dispute between the warring couple or has any truck or alliance with them to extend tenancy in their/in wife's favour without his choice or willingness despite the beneficent provisions of the Domestic Violence Act when the term of lease has expired and the tenancy also stands terminated."
ii) Neha Jain & Anr. Vs. Gunmala Devi Jain & Anr.: 2015 SCC OnLine Del 10810:
22. The fact situation in the present case is starkly different from the fact situation which obtained in either Preeti Satija (supra), or Navneet Arora (Supra). In the present case, the appellant no. 1 admitted in her crossexamination that respondent no.1 was the owner of the suit property. The respondent No.1 is the grandmother inlaw of appellant No.1. There is absolutely nothing brought on record to even remotely suggest that respondent no. 2/Sh. Kapil Jain had an interest in the suit property by virtue of being the grandson of respondent No.1/plaintiff. Respondent no. 2/Sh. Kapil Jain had moved out of the suit property. From the memo of parties itself, it is CS No.810/17 Page 7 of 13 Ram Prakash Sharma Vs. Ambika Jain & Anr.
seen that he is residing at an address in Vishwakarma Nagar, Delhi. On a query by the Court, Mr. Anand states that divorce petition has not been initiated by either of the parties. The parties were living on different floors of the property.
23. In these circumstances, in my view, the decision in S.R. Batra (supra) squarely applies to the fact of this case, and not the decision in Preeti Satija (supra), or Navneet Arora (supra). One cannot lose sight of the fact that in S.R. Batra (supra), the Supreme Court did not accept the very wide and literal interpretation of the definition of "shared household" contained in Section 2(s) of the Act. The Supreme Court, in effect, held that a literal interpretation of the said expression will lead to chaos and absurdity. It also observed that the meaning of the expression "shared household" was not happily worded, and appeared to be the result of clumsy drafting. In the face of such observations, it is evident that the Division Benches of this Court in Preeti Satija (Supra) and Navneet Arora (supra) rendered those decisions in the fact situation obtaining in those cases."
iii) Harish Chand Tandon Vs. Darpan Tandon & Anr.:
(2015) 153 DRJ 273: "10. The next question which needs attention is whether the suit property will be 'shared household' within the meaning of Section 2(s) read with Section 17(1) of the Act. In my view, self acquired property of fatherinlaw will not be a 'shared household' within the meaning of Section 2(s) read with Section 17(1) of the Act. In S.R. Batra v. Smt. Taruna Batra (2007) 3 SCC 169, Supreme Court has held thus:
20. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places, e.g. with the husband's father, husband's paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned Counsel for the respondent is accepted, all these houses of the husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.
It is well settled that any interpretation which leads to absurdity should not be accepted.
21. Learned Counsel for the respondent Smt. Taruna Batra CS No.810/17 Page 8 of 13 Ram Prakash Sharma Vs. Ambika Jain & Anr.
has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's in laws or other relatives.
22. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or take on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member, it is the exclusive property of appellant No.2, mother of Amit Batra. Hence, it cannot be called a 'shared household'.
23. No doubt, the definition of 'shared household' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society."
11. In Shumita Didi Sandhu v. Sanjay Singh Sandhu 174 (2010) DLT 79 (DB), a Division Bench of this Court, in the context of Section 17 of the Act, has held that a wife would only be entitled to claim a right of residence in a "shared household" and such a 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 property which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded as a "shared household". Clearly, the property which exclusively belongs to the fatherin law or the motherinlaw or to them both, in which the husband has no right, title or interest, cannot be called a "shared household".
12. In Neetu Mittal v. Kanta Mittal, 2009 AIR (Del) 72, a Single Judge of this Court has held that the woman can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consent and wishes ..............
14. Learned counsel for defendant no. 2 has placed reliance on the judgment Smt. Preeti Satija v. Smt. Raj Kumar AIR 2014 Delhi 46 to contend that the property of fatherinlaw, where daughterinlaw had been living with her husband, would fall within the ambit and CS No.810/17 Page 9 of 13 Ram Prakash Sharma Vs. Ambika Jain & Anr.
scope of Section 2(s) read with Section 17 of the Act. In view of the catena of judgments as cited above, Preeti Satija (supra) cannot be preferred.................
15. In view of the unequivocal and unambiguous admission in the written statement that property was owned by Late Rang Bihari Lal Tandon and plaintiff his only adopted son, the legal position as emerges establishes that plaintiff is the absolute owner of the suit property and his son, that is, defendant no.1 has no right, title or interest therein. It is also an admitted fact that defendant no. 1 had been occupying the suit property being son of plaintiff and after the marriage, defendant no.2 joined the company of her husband (defendant no.1). In these facts status of the defendants is that the "gratuitous licensees". An adult son of daughter or for that matter daughterinlaw has no legal right to occupy the self acquired property of the parents or parentsin law, as the case may be, against their consent and wishes."
12. Written submissions have also been filed by all the parties which have been perused. The legal position with respect to the rights of daughter in law in the self acquired property of his parents in law is clear. It has been held by the Hon'ble Superior Courts many a times that a daughter in law has no right to stay in self acquired property of her parents in law. It has also been held that an aggrieved woman cannot claim right to reside in a particular property. Wife can claim right to residence only in such property that is owned by her husband or that has been taken on rent by the husband or which is a joint family property in which husband has a right.
13. As already discussed above, it is amply clear from the pleadings on record and reply to the notice sent by the defendant no.1 that the suit property is self acquired property of the plaintiff. The fact that some structural changes were made in the suit property by the defendant no. 2 or electricity meter in the suit property is installed in CS No.810/17 Page 10 of 13 Ram Prakash Sharma Vs. Ambika Jain & Anr.
the name of the defendant no. 2, does not make him owner of the suit property. Since, the suit property is owned by the plaintiff, who is father in law of the defendant no.1, she cannot claim right of residence in the said property. Even otherwise, Section 17 of the Domestic Violance Act protects an aggrieved woman from dispossession from the shared household except in accordance with the procedure established by the law. The plaintiff herein has approached this Court with a suit for possession and thus has availed the procedure established by law. Section 17 of the Domestic Violence, 2005 Act therefore has no application in the present suit where possession is being asked from defendant no. 1 in accordance with the procedure established by the law.
14. So far granting of relief under Section 26 of the Domestic Violence Act, 2005 is concerned, no such prayer has been made by the defendant no.1 in the present suit. Even otherwise, defendant no. 1 has already filed an application under Section 12 of the Domestic Violence Act, 2005 seeking Residence Order, which is a summary and more effective remedy available to her. Having chosen her remedy under Section 12 of the Domestic Violence Act, 2005, defendant no. 1 now cannot claim any relief before this Court under Section 26 of the Domestic Violence Act, 2005.
15. The defendant no. 2 has admitted that he is tenant of the plaintiff. Defendant no. 1 is residing in the suit property in the capacity of family member of the tenant i.e. defendant no. 2.
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Defendant no. 1 has alleged that there is a connivance between the plaintiff and defendant no. 2 in order to throw her out of the suit property. Even if I assume that there is some connivance between the plaintiff and defendant no. 2, and defendant no. 2 is not the tenant of the plaintiff, he then at the best have been residing in the suit property with permission of the plaintiff thereby relegating himself to the status of a gratituous licensee. It is not the case of the defendants that defendant no. 2 has some right, title or interest in the suit property which is akin to ownership. Hence, the plea of connivance raised by the defendant no. 1 is not of much help to her.
16. Defendant no. 2 having admitted the tenancy in his favour, can safely be presumed to be the tenant of plaintiff. Defendant no. 1 has admitted that there has been an arrangement between plaintiff and defendant no. 2 regarding payment of rent. Her claim but is that this arrangement was made for the purpose of tax savings. Even if it is assumed to be so, the defendant no. 2 can then also at the best be called a gratituous licensee liable to hand over possession as & when sought by the licensor.
17. Defendant no. 2 has not only admitted the tenancy but also the fact that he is in arrears of rent w.e.f. September, 2016. The notice of termination of tenancy has also been admitted by the defendants. In such a scenario, nothing remains in the present suit that requires trial and adjudication. The plaintiff being owner of the suit property is entitled to possession against defendant no. 1 and 2, no matter if he CS No.810/17 Page 12 of 13 Ram Prakash Sharma Vs. Ambika Jain & Anr.
is lessor or licensor. Since defendant no. 2 has admitted the tenancy and arrears of rent also, plaintiff is entitled to the relief regarding arrears of rent as well.
18. In view of aforesaid discussion, the application under Order XII Rule 6 CPC is allowed to the following extent:
(i) Defendants are directed to hand over peaceful and vacant possession of the suit property to the plaintiff within a period of three months from today, failing which plaintiff shall be entitled to execute the decree as per law.
ii) Defendant no. 2 is directed to pay arrears of rent @Rs.20,000/ per month starting from September, 2016 till handing over of the possession to the plaintiff alongwith future interest @6% per annum to be calculated on monthly basis in accordance with the amount due in that month.
19. Suit is partly decreed accordingly and decree sheet be prepared after payment of deficient court fees, if any. Application stands disposed off. Digitally signed JYOTI by JYOTI KLER Date:
KLER 2018.11.01
10:25:35 +0530
Announced in the open (JYOTI KLER)
Court on 31.10.2018 ADJ05 (SOUTH DISTRICT)
(Order contains 13 pages) SAKET COURTS, NEW DELHI
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