Delhi District Court
Shri Surya Chandra Mishra vs Smt. Sudha Mishra on 28 April, 2014
IN THE COURT OF SHRI A.S. JAYACHANDRA
ADDITIONAL DISTRICT JUDGE-01 (SHAHDARA)
KARKARDOOMA COURTS: DELHI.
C.S. No.39/2013
Unique I.D No. 02402C0210062011
Shri Surya Chandra Mishra
S/o Late Shri Deep Narayan Mishra,
R/o C-1/9-A, Yamuna Vihar,
Delhi
............... Plaintiff
Versus
Smt. Sudha Mishra
W/o Shri Sushil Mishra,
D/o Shri T. N. Shukla,
R/o C-1/9-A,
Yamuna Vihar, Delhi
......... Defendant
Date of Institution : 19/07/2011
Order reserved on : 25/03/2014
Order passed on : 28/04/2014
JUDGEMENT
1. The plaintiff above named prays for a mandatory injunction against the defendants to quit and deliver the vacant possession of a portion of the property bearing No. C-1/9-A, Yamuna Vihar, Delhi and further to restrain the defendant from in any manner creating interference or obstruction to the rights of the plaintiff in the suit property as well as restraining the defendant from parting withpossession of the said portion in her occupation. There is yet another prayer for mesne profits @ Rs.1 Lakh per month alongwith interest.
2. The plaintiff contends that he is the absolute owner in peaceful possession & enjoyment of the suit property having acquired the same under a Lease Deed executed by DDA dated 27.5.1982. After having acquired the land, he put up a construction and the conveyance deed dated 7.4.1995 also stands in his name. The defendant is his daughter-in-law having married his son at Kanpur on CS No.39/2013 Page no. 1 of 19 11.12.1996. After marriage, she was living at Kanpur, Lucknow, Allahabad and her children were born at Lucknow and Kanpur. Ever since the marriage, there was a strained relationship between the defendant and her husband. Defendant pursued her B.Ed and Law degree at Kanpur after the marriage. Defendant is alleged to have lodged false complaints u/s 498A of IPC r/w Sec.3 & 4 of Dowry Prohibition Act against her husband and father-in-law/plaintiff. Because of the bickerings between the defendant and her husband which also came down heavily on the relationship of the plaintiff and his son, the plaintiff had disowned his son in the year 2011 and the public notice was also published in 'Rashtriya Sahara' by which his son and the defendant are debarred to put up any claims on the self acquired property of the plaintiff.
3. It is also alleged in the plaint that the defendant alongwith her father demanded the plaintiff to relinquish the property in her favour and that they have threatened to forcibly occupy the property by filing criminal cases against the plaintiff and his family members. Consequent to such threats, plaintiff filed a complaint on 28.6.2011 with PS Bhajanpura and before the DCP-NE. It is also mentioned in the plaint that on 11.7.2011, defendant came to the suit property and tried to occupy the suit property. Police was called. However, it is also mentioned that defendant forcibly occupied one room, kitchen and bathroom in the ground floor without any right, title or interest. It is alleged that a complaint of illegal tresspass is filed by the plaintiff on 14.7.2011 against the defendant. Certain case laws are also mentioned in the plaint. The cause of action pleaded are on 28.6.2011, 11.7.2011 and 14.7.2011. Thus, the suit with the prayers aforesaid.
4. Summons were issued to the defendant. She appeared through the counsel and filed her written statement taking certain preliminary objections that the material facts have been concealed. It is stated that the suit is not maintainable in view of alternative remedies available under the Law. It is CS No.39/2013 Page no. 2 of 19 further stated that there is no cause of action to file the present suit as the answering defendant is the legally wedded wife of the son of the plaintiff. In reply on merits, it is averred that the suit property was purchased out of the joint family funds. It is submitted that it is the plaintiff and his son who used to harass her for dowry demands. The answering defendant is living separately from her husband due to marital discord in the suit property itself. Litigation for divorce against her husband is pending. It is averred that the room in occupation of defendant is not having any door. It is emphatically denied by the answering defendant that she forcibly occupied the suit property. It is denied that she was not residing in the suit property prior to 11.7.2011 or that she occupied the suit property with the aid of police. The defendant contends that the suit is under valued. She denied every allegation except the marriage with the son of the plaintiff on 11.12.1996 and denies that she was residing at Kanpur, Lucknow and Allahabad. She contends that except for appearing for the exams she remained in the matrimonial home i.e. the suit property. She prays for dismissal of the suit.
5. Replication is filed by the plaintiff. He denied the under valuation of the suit and the preliminary objections. It is contended by the plaintiff that a mere say by the defendant that the suit property was purchased out of joint funds is not substantiated by the proper facts. The plaint averments are reiterated.
6. Based on the pleadings and after hearing the ld. counsel on either side, my ld. predecessor by an order dated 08.02.2012 had framed the following issues:-
Issues
1. Whether the plaintiff is entitled to decree for mandatory and permanent injunction as prayed for in respect of property bearing no. C-1/9A, Yamuna Vihar, Delhi-93? OPP
2. Whether the plaintiff is entitled to damages/mesne profits at the rate of rupees one lakh per month with effect from the date of CS No.39/2013 Page no. 3 of 19 filing of the suit till date the defendant removes her articles from the suit premises, alongwith interest at the rate of 18% per annum on the said amount ? OPP
3. Whether the plaint is undervalued for the purpose of court fee and pecuniary jurisdiction?OPP
4. Whether the suit in its present form without praying for possession of the suit premises is maintainable? OPD
5. Relief.
7. To vindicate their respective stands, plaintiff has examined himself and closed his side. On behalf of the defendant, she was examined as DW1 and evidence on the part of defendant is closed. Heard the arguments on either side.
8. During the course of arguments, the ld. counsel for plaintiff had vehemently argued that the suit property is the self acquired property of the plaintiff. It is also submitted that plaintiff under his sweat will and volition and further considering the marital discord between the son of the plaintiff and the defendant which culminated into certain litigation against the plaintiff, the son of the plaintiff was disowned and duly notified. It is also submitted that the evidence reveals that the defendant has been residing separately and that she in order to harass the plaintiff had forcibly entered into the suit property which amounts to tress pass. The ld. counsel further submits that the plaintiff is entitled for the reliefs prayed for. He relied on the following rulings:-
1. Kavita Chaudhri Vs. Eveneet Singh & Anr. (202 (2013) DLT 548)
2. S. R. Batra & Anr. Vs. Taruna Batra ((2007) 3 SCC 169)
3. Shumita Didi Sandu Vs. Sanjay Singh Sandhu & Ors. (174 (2010) DLT 79 (DB))
4. Sardar Malkiat Singh VS. Kanwaljit Kaur and Ors. (168 (2010) DLT 521)
5. Neetu Mittal Vs. Kanta Mittal (2009 AIR(Del)
72) CS No.39/2013 Page no. 4 of 19
6. Raj Kumari Vs. Preeti Satija & Anr. (193 (2012) DLT 224)
7. Barun Kumar Nahar Vs. Parul Nahar (2013 (2) AD (Delhi) 517)
8. Sunil Madan Vs. Rachna Madan (D.D. 02/6/2012 Crl. MC No. 3071/2008)
9. Pamela Sharda Vs. Rama Sharda (2012 (3) AD (Delhi) 76)
10. Padmavati Mahajan Vs. Yogender Mahajan & Anr. 152 (2008) DLT 363
11. Gurcharan Singh Sohal Vs. Jasbir Kaur Sohal & Ors. (181 (2011) DLT 344)
12. Mulk Raj Khullar Vs. Anil Kapur & Ors.
(2013 (139) DRJ 303)
13. Joseph Severance & Ors. Vs. Benny Mathew & Ors. ((2005) 7 SCC 667)
9. On the other hand, the Ld. counsel appearing for the defendant submits that the reliefs in the suit cannot be granted for the reasons that the suit is hit by non-joinder of parties. She urges that the husband of the defendant is a necessary party since the entire dispute arises out of the bickerings in the matrimony. It is also urged that the defendant is entitled to continue in possession of the portion of the suit property since the right of residence is under the marriage laws. The right of residence is a sacramental right and if the defendant is allowed to be evicted, she would be helpless and will be put into distress. Certain photocopies of the documents were also produced by the defendant by the list of documents dated 25/02/2014 to submit that the plaintiff was aware of the divorce proceedings and that there is an order of the Ld. MM (Mahila Cout) restraining the plaintiff and his family members from dispossessing the defendant from one room and one bathroom, kitchen in the ground floor of the suit property. She relies on an unreported ruling of the Hon'ble DB of our High Court in Preeti Satija v. Raj Kumari (RFA (OS) 24/2012 DD 15/01/2014 to urge that the courts have to be cautious in their approach while entertaining and short CS No.39/2013 Page no. 5 of 19 circuiting suits for possession , which are in effect directed against the plaintiff's daughter-in-law, or else the right of residence in shared households would be a mere chimera, a teasing illusion which the law grandly promises, but is seldom, if ever, able to enforce. In fact, the strategy of "disowning" sons, through public notices or advertisement, is not to be taken lightly. She further submits that the suit property in question is a shared household and therefore, the defendant cannot be driven to the streets. She further relies on the ruling of the Bombay High Court in Archana Hemant Rai v. Urmila Bein (Crl. R A no. 590/2008 DD 25/08/2009) and Eveneet Singh v. Prashant Sundhari of our High Court in OS no. 1307/2010 dated 29/02/2011) to urge that the Domestic Violence Act is a secular legislation and the same cannot be restricted to the cases where the husband owns some property. In such cases, the parents-in-law would be the parties in the proceedings under Domestic Violence Act as held in the Bombay High Court's ruling. The Eveneet Singh case (Supra) is pressed in to service to urge that the claims of residence by a wife must start with a presumption in favour of the wife and the law leans in her favour to protect her shared household. Ld. counsel for the defendant further relied on Shivangouda Lingangouda v. Gangawwa Basappa (AIR 1967 Kant 143) to urge that the non-joinder of the parties would be fatal to the suit. There is no such issue rise with regard to the non-joinder of the parties. The husband of the defendant is not joined by the plaintiff. Considering the reliefs claimed in the suit, the non-joinder of the husband does not effect the rights of the parties litigating before this court. Therefore, the said ruling is of no help to decide the issues in this case.
10. The Ld. counsel for the defendant has also filed the detailed written submissions repeating the facts and the litigation between the parties. It is urged that suit is not maintainable under Section 41 (h) of the Specific Relief Act and that the suit is filed only as a counter blast after the defendant having approached the legal forum for redressal under the Domestic Violence Act. It is CS No.39/2013 Page no. 6 of 19 further submitted that the plaintiff has been resorting to character assassination and therefore the Ld. counsel submits that the suit of the plaintiff be dismissed.
11. In the light of the submissions made on the either side and after considering the evidence available on record, the issues are being answered as under:-
Issue no. 1
12. The eligibility of the plaintiff to seek the perpetual and mandatory injunctions is to be decided in this issue. The case of the plaintiff is that he is the absolute owner in peaceful possession and enjoyment of the property as averred by him at para no. 2 of the affidavit at Ex. PW1/A. He has also relied on the following documents in his examination in chief:-
i. Ex. PW1/1 - the perpetual lease deed executed by DDA in his favour concerning the suit property. ii. Ex. PW1/2- the conveyance deed dated 06/04/1995 executed by the DDA concerning the property.
iii. Ex. PW1/3 - site plan prepared by the DDA iv. Ex. PW1/4 - the occupancy certificate by DDA dated nil.
v. Ex. PW1/5 - the MCD tax paid receipt dated 16/06/2011 vi. Ex. PW1/6 - the public notice dated vii. Ex. PW1/7 and 8 - copy of the letters sent by post to SHO and DCP, viii. Ex. PW1/9 - acknowledgment of complaint dated 14/07/2011 ix. Mark A - the rent agreement executed by Smt. Manju Sharma as landlady in favour of Sh. Sushil Mishra dated 23/06/2011.
13. It is testified by the plaintiff that his daughter-in-law was married on 11/10/1996 at Kanpur and that the defendant has been residing for the last ten years at Kanpur, Lucknow and Allahabad and at various places. It is further averred that the relationship of defendant and his son strained and defendant has CS No.39/2013 Page no. 7 of 19 filed cases under Section 498A of IPC r/w Section 3 and 4 of Dowry Prohibition Act against the plaintiff and his family members. Both the defendant and her husband misbehaved, abused and threatened the plaintiff and used to pick up quarrels on flimsy grounds. Both demanded separate property from the plaintiff and thus, he issued a public notice debarring his son and the defendant from all his movable and immovable properties. Thus, the plaintiff and the defendant shifted to a rented accommodation as found in Mark A. However the defendant with her father threatened the plaintiff that they would enter the suit property. The plaintiff complained to the authority at Ex. PW1/7 and 8. He further stated that the defendant on 11/07/2011 tried to break open the locks at the ground floor of the suit property and the police were called. The police were under influence of the defendant and they threatened the plaintiff that they would face the dire consequences if the defendant is not let into the suit property, though the defendant was not residing in the suit property as on that day. However the defendant forcibly occupied one room, kitchen and bathroom on the ground floor. The husband of the defendant is residing separately in a rented accommodation at C-11/179, Yamuna Vihar, Delhi. The defendant had intention to grab the property. The suit property is the self-acquired property of the plaintiff. He has lodged a complaint to the police also as at Ex. PW1/11 dated 14/07/2011. He also testifies that the defendant has no right, title or interest in the suit property. Her possession is either permissive and gratuitous licencee. The defendant could continue to reside only as per the sweet will of the plaintiff and she has no right in law. According to the plaintiff, defendant is in illegal occupation. The plaintiff further submits that he is entitled for the mandatory and permanent injunction as prayed for.
14. This witness was cross examined. It is elicited that he has some other properties at Delhi other than the suit property. On issue no. 1, the relevant cross examination is that he admits that a divorce proceeding is pending between his CS No.39/2013 Page no. 8 of 19 son and the defendant. It is also elicited that the at the time of marriage, his son was residing at B-3/48A, Yamuna Vihar, Delhi which is not the suit property. It is also elicited that his son and the defendant used to visit the suit property intermittently till the year 2010. He denies a suggestion that the suit property is the matrimonial home of the defendant. It is elicited that his son sold his house and purchased the property bearing no. GD-26 at Kalkaji alongwith his brother Satish Kumar. It is also elicited that PW-1 has not issued any notice to his son till 31/12/2010. It is also found in the cross examination that the daughter-in-law and his son removed their goods on 04/05/2011 and left the house of PW-1. He denies a suggestion that possession of the defendant after 04/05/2011 is independent on her own right. He does not have a photograph of his son and daughter-in-law leaving by 04/05/2011. He denies a suggestion that the defendant continuously residing in the suit property since the date of marriage. He further denies that the defendant has not forcibly entered the suit property on 11/07/2011 and that she and her children were already in possession even prior to that. He further denies that the suit property is a joint Hindu family property. He further denies that defendant is not liable to pay any damages. He further denies the suggestion that the suit property is not the self - acquired property of PW-1.
15. In order to counter his averments on issue no. 1, the defendant in her evidence as DW-1/A contended that the suit is filed with ulterior motives to further harass her. According to DW-1/A the affidavit, plaintiff is not the owner of the suit property and it was purchased from the joint Hindu family funds and income. The plaintiff has no right to seek possession by way of the injunctions DW-1 was respectful and obedient. There is no cause of action to the suit. She testifies that she had never willfully remained away from the matrimonial home. The notices disowning her husband is denied for want of knowledge. She further submits that her husband has filed a divorce petition against her and the same is pending adjudication. She is living separately in the suit property from her CS No.39/2013 Page no. 9 of 19 husband and she has made complaints to the National Commission for Women. According to her, she left for her parental home on 06/05/2011 for summer vacation and to attend the courts at Allahabad, leaving all her articles in the suit property. She has been living in the suit property. The plaintiff has concocted a story of tresspassing into the suit property by her allegedly on 11/07/2012. There was no question of breaking open the lock since the room in her possession was having no doors. She had relied on five documents namely :-
The complaint dated 29/04/2011, acknowledgment, railway ticket, copy of the FIR, the list of witnesses filed in the HMA case by her husband, the order sheets which are marked as DW1/1 to 6 respectively.
16. The Ld. counsel appearing for the plaintiff vehemently submits that the documents namely the lease deed, the conveyance deed, the tax paid receipt produced by the plaintiff establishes that the suit property is the self-acquired properties of the plaintiff. Though the defendant had heavily argued that the suit property is purchased from the hotch pot of the funds of the Joint Hindu Family property, the defendant has not produced any documents to establish her contentions that the suit property is the joint Hindu family property. Thus, from the documentary evidence produced by the parties, it becomes very clear that the property is in the personal name and is alloted exclusively in the name of Sh. Surya Chand Mishra by the DDA as per the perpetual lease and conveyance deed. The defendant had failed to establish that the property is in the nature of joint hindu family belonging.
17. After holding that the property as the exclusive and absolute estate of the plaintiff, it is to be seen whether the plaintiff is entitled for the injunction sought against the defendant mandatory in nature directing her to quit and deliver the vacant possession of the portion in her occupation in the suit schedule property. The Ld. counsel for the plaintiff relied on several rulings right from the CS No.39/2013 Page no. 10 of 19 rulings from the Hon'ble Supreme court in SR Batra (Supra). In S R Batra, the Hon'ble Supreme Court while dealing with the provisions of Domestic Violence Act and the expression "Shared household" as found in the Act had held as under:-
"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 taken 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 2, mother of Amit Batra. Hence it cannot be called a "shared household."
18. In the instant case, the suit property is not in the name of the husband of the defendant. It is in the name of the plaintiff. After following S R Batra's dictum, several rulings relied by the Ld. counsel at Kavita Chaudhary(Supra) held that Section 2(s) of the Domestic Violence Act is to be understood as that the right of residence which a wife undoubtedly has does not mean a right to reside in a particular property. It may mean a right to reside in a commensurate property but it cannot translate into a right to reside in a particular property. In this case, the defendant has not produced any documents to show that she alongwith her husband had ever resided in the suit property to claim it as a shared household. It was expected of the defendant to have produced some documents like the ration card, voter ID card, the separate telephone lines bills either in her own name or that of her husband from the date of marriage showing the address of the suit schedule property till the date of the misunderstandings that have crept in between her and her husband. In the absence of such CS No.39/2013 Page no. 11 of 19 documentary evidence, it becomes very difficult to hold that the suit schedule property is the 'shared household' in which the defendant had consolidated her rights to reside out of the matrimonial tie with the son of the plaintiff.
19. The same principle has been reiterated time and again in Sumita Didi (Supra) wherein it held that a husband having no share in the property of his parents and the property being not a joint family property, the same cannot be held as the shared household or matrimonial home. In Sardar Malkiat (Supra), S R Bata (supra) was relied on and the plaintiff was given a decree of possession. The plaintiff therein was the father-in-law. In Neetu Mittal (Supra), it is held that if the property is self-acquired of the parents, the son whether married or unmarried has no legal right to live in except with the permission of the parents. In Raj Kumari v. Preeti Satija of the single Judge, it was held that a daughter-in-law cannot seek a right to reside in the property of her mother-in- law. The Ld. counsel for the plaintiff has also relied on the rulings in Prem Prakash Dabral v. Sikha Dabral (RSA no. 190/2011 dated 22/01/2014) and Sushma Sharma v. Bimla Devi (RSA no. 279/2013 dated 11/02/2014) also to urge the same points. Therefore, the law is settled that in a matrimonial dispute, the either of warring parties cannot insist or claim a right of residence in the self- acquired and exclusive properties of the In-laws, especially the estranged wife.
20. The Ld. counsel for the defendant however vehemently submits that the law is ever changing and she relies on Preeti Satija v. Raj Kumari, the ruling of the Hon'ble D B dated 15/01/2014. The ruling of the single judge is relied by the plaintiff whereas in the D B ruling relied by the defendant. It is held that "the introduction of remedy of right to residence is revolutionary and path breaking step, taken to further the objects of the Act, and any attempt at restricting the scope of the remedy would reduce the effectiveness of the Act itself. Therefore, it would be contrary to the scheme and the objects of the Act to restrict its application to only such cases where the husband owns some property CS No.39/2013 Page no. 12 of 19 or has a share in it, as the mother-in-law can also be a respondent in the proceedings under the Domestic Violence Act and remedies available under the same Act would necessarily need to be enforced against her. At para no. 15 of the ruling of the D B, it is held that the definition of 'shared household' emphasizes the factum of domestic relationship and no investigation into the ownership of the said household is necessary, as per the definition. Even if an inquiry is made out the aspect of ownership of the household, the definition casts a wide enough net. It couched in inclusive terms and is not in any way. Therefore the Ld. counsel for the defendant submits that the common tactics of the In-laws to disown their son through public notices is unknown to law as held in the said ruling at para no. 23 only to defeat the rights of the women in the shared household. Therefore, in view of the above ruling, the other rulings of the Hon'ble High Court be ignored to render justice. She submits that in view of the above clear dictum of the Hon'ble D B in Preeti Satija, the plaintiff is non- suited. On the other hand, the Ld. counsel for the plaintiff strenuously argues that if the ruling in Preeti Satija (supra) is followed, the same would be in violation of the rulings rendered by the Hon'ble Supreme Court in S R Batra and that of the division bench in Sumita Didi Sandhu of our Hon'ble High Court. In the above conflicting situation, it is to be noted that the ruling of S R Batra is not overturned by the Hon'ble Supreme Court and the same cannot be ignored. Further more, in Preeti Satija, the matter is remitted back to the Ld. Single Judge. Hence, the settled position of law as found in S R Batra holds the field.
21. As far as the maintainability of mandatory injunction without a suit for recovery, the ruling in Barun Kumar Nahar of our own High Court comes to the fore. It was held therein that the relief of interlocutory mandatory injunction are granted generally to preserve or restore the status quo of the last non-contested status which preceded depending controversy until the final hearing.
CS No.39/2013 Page no. 13 of 19
22. In Padmawati Mahajan (supra), our Hon'ble High Court had held that the grant of mandatory injunction is permissible and maintainable by following the ruling in Joseph Serverence v. Binni Mathew (2005 (7) SCC
667) and Delhi Gate Services Pvt. Ltd. v. Kaltax India Ltd. (AIR 1962 P & H
370). In view of the above, the grant of mandatory injunction to vacate or quit and deliver the possession is maintainable. It was also held so in Gurucharan Singh (Supra). The contention of the defendant that the defendant cannot be evicted by mandatory injunction thus finds no force in law especially in the context of defendant having not established her own right in the property. No doubt, the Ld. counsel for the defendant relied on B. P. Achala Anand v. S Appi Reddy of the Hon'ble Supreme Court in Appeal no. 4250/2000 dated 11/02/2005 to urge that the law should be interpreted and re-casted to meet the harmonious human relations cannot be followed since factual matrix, differs from the facts on hand to override the ruling of S R Batra.
23. She also relied on Nidhi Kumar Gandhi v. State in Crl. M C 452/2008 DD 12/01/2009. In the said ruling, the Ld. ACMM had issued interim orders in favour of the estranged wife to visit the matrimonial home wherein she had the possession of one room. The said order was overruled by the Sessions Court. Against this order, a petition under Section 482 was filed before the Hon'ble High Court. It was held that the petition under Section 482 Cr.P. C. is maintainable. It was also held that the Ld. ASJ was not justified in applying the principle laid down by the Hon'ble Supreme Court in S R Batra without any evidence and at an interlocutory stage. This ruling is not helpful to the defendant since the matter is being dealt after recording the evidence on either side. In the instant case, there is no pleading that the suit property is the shared household of the defendant. There is no counter claim to declare the property as such. There is no documentary evidence to establish that the defendant resided in the suit property ever since the date of marriage till the marital contretemps forced her CS No.39/2013 Page no. 14 of 19 husband taking a separate residence at Mark A.
24. In the context of there being no evidence to hold the property as belonging to the joint family of her husband and further there being no evidence to hold that the property as the 'matrimonial home' or the 'shared household' of the defendant for the purposes of Domestic Violation Act, it becomes very difficult to hold that the defendant has a right to continue in possession of the portion in her occupation in the suit scheduled property. For the aforesaid reasons, this court is of the opinion that the suit of the plaintiff in so far as seeking the injunctions should succeed. Thus the issue no.1 is answered in favour of the plaintiff.
Issue no. 2:
25. By this issue, the plaintiff is seeking the mesne profits/ damages @ Rs. One Lakh per month w.e.f. date of filing of the suit alongiwth interest thereon. In the present case, in order to vindicate his claim, the plaintiff in his examination in chief had not stated anything with regard to the rents that the room may fetch in the open market. The claim of the plaintiff in the suit is for Rs. One Lakh per month. In the examination in chief of DW-1, she had stated that she is in occupation of a room. The plaintiff only wanted to establish the rate of market rents through the cross examination of DW-1. A suggestion was put to the effect that the banks in the area pay the rents to the landlords at Rs. 1 to 1.5 lacs for which the DW-1 had clearly stated that she does not have any information. It is highly usurious to assume that a room with a bathroom fetches rent of Rs. One Lakh per month howsoever the locality may be posh. Further more, the suit property is situated at Yamuna Vihar. Plaintiff's adjuration in the plaint is worth repetition to note that the nature of possession by the defendant is permissive/gratutous. In the absence of any evidence and further considering the status of the estranged wife, it would be unfair to ask the defendant to pay the mesne profits as claimed by the defendant. Suffice it to say that the plaintiff had CS No.39/2013 Page no. 15 of 19 miserably filed to establish that the portion in occupation of the defendant would fetch the rents at Rs. One Lakh per annum. Therefore, this issue is held against the plaintiff and in the negative.
Issue no. 3
26. By this issue, this court has to find out whether the suit is under valued for the purposes of pecuniary jurisdiction. The suit is valued for the purposes of court fees and jurisdiction at Rs.3.1 lacs. The relief of permanent injunction is valued at Rs.200/-. The plaintiff has also sought for the mesne profits at Rs. One Lakh per month. As far as the contention of the defendant is concerned, the suit is under valued. The defendant contends that without filing the suit for recovery based on the value of the property or the annual rent, the suit would be not maintainable. As per Section 41 of the Specific Relief Act, the defendant contended that alternate remedy is suit for mandatory injunction. As regards the valuation, the defendant contends that the suit is under valued. The Ld. counsel for the plaintiff has relied on Padmawati Mahajan (Supra) which clearly holds that a suit for mandatory injunction is maintainable for seeking possession of the property. The relief of injunction is allowed to be valued under Section 7 (iv) (d) of The Court Fees Act, 1870. The plaintiff is at liberty in all such cases to state the amount at which he values the reliefs sought. The defendant is unable to establish under what provision of the Court Fee Act, the suit is under valued. The plaintiff has also valued the suit for the relief of mandatory injunction at Rs.3.1 lacs and he has paid the court fees accordingly. Considering the valuation, which is allowed by law at the whim of the plaintiff under the provisions of Section 7 of the Court Fees Act, it becomes very difficult to hold that the suit of the plaintiff is under valued. In these circumstances, this issue is held in favour of the plaintiff and against the defendant.
Issue no. 4
27. At the cost of repetition, this court has to answer whether the suit in the CS No.39/2013 Page no. 16 of 19 present form is maintainable or not without seeking the prayer of possession of the suit premises. No doubt that the suit is not for seeking possession, but for a mandatory injunction against the defendant to remove all her belongings from the suit property. It is already held in Padamawati Mahajan (supra) by our Hon'ble High Court as under:-
" I may however note, two objections which were raised in the written statement but with regard to which no issues were framed. The first contention in the written statement is with regard to maintainability of the suit for mandatory injunction and the second contention is with regard to the Court Fees. I have quoted in detail the cross examination of the defendant no. 1. In his cross examination, he has admitted that he had shifted to the property in question in his capacity as a son of his parents and then had voluntarily stated that he was also a partner in his Partnership Firm. His claim as a benami owner has been rejected. Occupation of the defendant no. 1 therefore was a permissive occupation or maximum as that of gratuitous licensee. The defendant no. 1 does not have any right in law to reside in the property contrary to the wishes and desire of the plaintiff. The suit for mandatory injunction is therefore maintainable in view of the decision of the Supreme Court in Joseph Serverence v. Benny Mathew reported in VII (2005) SLT 394= IV (2005) CLT 1 (SC)= (2005) 7 SCC 667 and decision in Delhi Gate Services Pvt. Ltd. v. Caltex (India) Ltd., reported in AIR 1962 Pand H 370."
28. Thus, in view of the ruling mentioned above, the suit of the plaintiff seeking mandatory injunction without the main prayer for recovery possession of the property is maintainable especially in the circumstances where the defendant is alleged to have occupied only a portion of the property.
Relief
29. Under this issue, this court has to consider the reliefs urged in the plaint. The plaintiff has sought for a decree of mandatory injunction in favour of the CS No.39/2013 Page no. 17 of 19 plaintiff directing the defendant to vacate the premises in her occupation and a decree of permanent injunction restraining the defendant from creating interference or o obstructions to the rights of the plaintiff in the suit property. The plaintiff has also sought for damages / mesne profits @ Rs. One Lakh per month alongwith interest. For the reasons mentioned while answering issue no.1, the plaintiff is entitled for the injunctions as sought for. As regards the mesne profits, it should be kept in mind that the plaintiff has alleged that defendant has occupied only a portion of the property in the ground floor consisting of one room with one kitchen and bathroom. There has been no evidence to establish that the premises in the occupation of the defendant would fetch the rents at the market at the value of Rs. One Lakh per month. The court cannot be oblivious of the fact that the defendant is none other than the daughter-in-law of the plaintiff. Whatever may be the reasons for her entry into the home of her In-laws, the same sprouted out of the matrimonial tie with the son of the plaintiff. In the context of plaintiff disowning / debarring his son for the domestic bickerings, the daughter-in-law who would be obligated to live with her husband who has taken shelter for the time being at the house of her father-in-law cannot be treated as a person having no relationships with the plaintiff. Even token sum of damages/mesne profits if ordered against the 'woman' defendant on maintenance having children to support would be hard hitting and inhuman. Considering this aspect of the matter and the special circumstances peculiar to this case, this court of the opinion that no amount of damages / mesne profits can be ordered against the defendant for two reasons:- a) that there being no evidence led by the plaintiff; b) that the defendant having been in only a small portion of the entire ground floor of the suit property consisting of one room, kitchen and bathroom for her mere existence. In these circumstances, the relief of mesne profits against the defendant is declined. Consequently, the suit is being disposed off with the following order:-
CS No.39/2013 Page no. 18 of 19
ORDER
The suit of the plaintiff is partly decreed.
The defendant is directed under a
mandatory injunction to quit and deliver the
vacant possession of one room, kitchen and
bathroom in her possession in the suit property
bearing no. C-1/9-A, Yamuna Vihar, Delhi in
favour of the plaintiff within three months from
today.
The defendant is further restrained from
interfering in the peaceful possession and
enjoyment of the above property by the plaintiff.
There shall be no order as to costs.
Decree be drawn accordingly.
File be consigned to record room.
Pronounced in the open court ( A.S. JAYACHANDRA)
on 28/04/2014 Addl. District Judge-01 (Shahdara),
Karkardooma Courts Complex:Delhi
(This Judgement contains 19 pages)
CS No.39/2013 Page no. 19 of 19