Delhi High Court - Orders
Sunita Ahuja & Anr vs Divya Arora Ahuja on 15 September, 2023
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 234/2023
SUNITA AHUJA & ANR. ..... Appellants
Through: Mr. Prabhjit Jauhar, Ms. Gauri Rajput
and Ms. Ajunee Kaur, Advocates.
versus
DIVYA ARORA AHUJA ..... Respondent
Through: Appearance not given.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 15.09.2023 CM APPL. 47617/2023 (Exemption) Exemption granted, subject to just exceptions. Let requisite compliances be made within 01 week. The application stands disposed of.
FAO 234/2023 and CM APPL. 47616/2023, CM APPL. 47618/2023 By way of the present appeal filed under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 ('CPC'), the appellants, who are parents-in-law of the respondent impugn order dated 06.09.2023, whereby in a Civil Suit bearing Civ. DJ No. 716/2023, the learned Additional District Judge ('ADJ') has returned the plaint under Order VII Rule 10(1) of CPC, directing it to be presented before the learned Family Court.
2. Mr. Prabhjit Jauhar, learned counsel appearing for the appellants submits, that the plaint has been so returned on the ground that a suit filed by the parents-in-law against their daughter-in-law in relation to their property which she is occupying, is a dispute to be decided by This is a digitally signed order. FAO 234/2023 Page 1 of 3 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2023 at 21:07:28 the learned Family Court and a suit is not maintainable in view of section 7(1) Explanation (d) of the Family Courts Act, 1984.
3. It is argued that in doing so, the learned ADJ has relied upon the decision of a learned single Judge of this court in CMM No. 69/2020 titled Avneet Kaur vs. Sadhu Singh & Anr.1 expressing that the said judgement holds the field on the issue of maintainability of such suit.
4. Mr. Jauhar however contends that the decision of the learned single Judge in Avneet Kaur (supra) is per incuriam since it proceeds without noticing earlier decisions of Co-ordinate Benches of this court in Manita Khurana vs. Indra Khurana2 and Meena Kapoor vs Ayushi Rawal & Anr.3
5. Counsel contends that in fact, by reason of the conflicting views taken by the learned single Judge in Avneet Kaur (supra), the question of whether a suit for possession filed by the parents-in-law against a daughter in-law is to be tried exclusively by the Family Court has been referred to a larger Bench by another learned single Judge of this court vide judgment dated 01.06.2023 in CS(OS) No. 601/2022 titled Geeta Anand vs. Tanya Arjun & Anr., and that reference is still pending.
6. Mr. Jauhar contends that apart from the fact that the decision in Avneet Kaur (supra) is per incuriam, in a recent decision of the Supreme Court in Union Territory of Ladakh and Others vs. Jammu and Kashmir National Conference and Another4, the 1 291 (2022) DLT 697 2 SCC OnLine Del 225 3 2020 SCC OnLine Del 2481 4 2023 SCC OnLine SC 1140 This is a digitally signed order. FAO 234/2023 Page 2 of 3 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2023 at 21:07:28 Supreme Court has also clarified that in cases where an issue has been either referred to a larger Bench or a review petition is pending, it is not open to a subordinate court to await the outcome of such reference or review; and when faced with such conflicting judgments of co- equal strength, a subordinate court (in that case, the High Court) is required to follow the earlier judgment. The Supreme Court has made the following observations in that case :
"35. ... It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680 ..."
(emphasis supplied)
7. Mr. Jauhar contends that the same principle applies to the present case inasmuch as the learned ADJ ought to have followed the earlier consistent position of law enunciated by co-equal Benches of this court in Meena Kapoor (supra) and Manita Khurana (supra).
8. Upon a prima facie view of the matter, issue notice.
9. Learned counsel appears on behalf of the respondent on advance copy and accepts notice.
10. Since the present proceedings are an appeal, no response is required to be filed in the matter.
11. Re-notify on 18th October 2023.
ANUP JAIRAM BHAMBHANI, J SEPTEMBER 15, 2023/ak This is a digitally signed order. FAO 234/2023 Page 3 of 3 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2023 at 21:07:29