Rajasthan High Court - Jaipur
Smt. Lalita Kanwar Wife Of Shri Jitendra ... vs Sumer Singh Khinchi Son Of Late Shri ... on 16 April, 2019
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 412/2019
Smt. Lalita Kanwar Wife Of Shri Jitendra Singh Khinchi, Aged
About 33 Years, By Caste Rajput, Resident Of House No. 104,
Laxman Colony, Shyam Nagar, Jaipur (Rajasthan).
----Petitioner
Versus
1. Sumer Singh Khinchi Son Of Late Shri Rampal Singh
Khinchi, Aged About 65 Years, By Caste Rajput, Resident
Of House No. 104, Laxman Colony, Shyam Nagar, Jaipur
(Rajasthan)
2. Smt. Ummed Kanwar Wife Of Shri Sumer Singh Khinchi,
Aged About 56 Years, By Caste Rajput, Resident Of House
No. 104, Laxman Colony, Shyam Nagar, Jaipur
(Rajasthan).
3. Jitendra Singh Khinchi Son Of Shri Sumer Singh Khinchi,
Aged About 35 Years, By Caste Rajput, At Present
Residing At Plot No. 64-B, Ashok Nagar, Purani Chungi,
Ajmer Road, Jaipur - Permanent Address - House No.
104, Laxman Colony, Shyam Nagar, Jaipur (Rajasthan).
----Respondents
For Petitioner(s) : Mr. Saransh Saini
For Respondent(s) : Mr. Dharamveer Tholia with
Mr. Himanshu Tholia
Mr. Prem Chand Dewanda
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Order
16/04/2019
1. Matter comes up on an application seeking vacation of
the ex-parte interim order dated 8th January, 2019.
2. Mr. Saransh Saini, learned counsel for the petitioner
resisting the application seeking vacation of the ex-parte interim order dated 8th January, 2019, contended that the order impugned (D.B. SAW/672/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 01:05:03 AM) (2 of 5) [CW-412/2019] made by Sub Divisional Officer, Jaipur (II), is without jurisdiction for a civil appeal was already filed which was, later on, withdrawn in view of the fact that the temporary injunction was declined. Learned counsel would further contend that a glance of Section 2(b)(j) defining the term "maintenance" and "Tribunal" read in the backdrop of mandate of Section 4, 5 and 6 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, Act of 2007), does not confer jurisdiction for eviction of the petitioner, who happens to be daughter in law of the respondent No. 1 and 2 (In-Laws).
3. Referring to opinion of Coordinate Bench of this Court in the case of Smt. Rashmi Saxena Vs. Suresh Prakash Saxena: 2017 (3) WLC (Raj.) 312, it is vehemently contended that Section 23 of the Act of 2007, is not attracted to the case at hand for a perusal of the language employed to Section 23 would reflect that transfer of property should have been after the commencement of Act of 2007 and subject to condition that transferee was to provid basic amenities and basic physical needs to the transferor and later on fails or refuses to do so.
4. It is emphatically contended that for there is no decree of divorce till date, made by the jurisdictional Court, dissolving the marriage of petitioner and respondent No. 3 (husband); therefore, the petitioner cannot be evicted from the premises though it happens to be a self acquired property of respondent No. 1 and 2 (In-Laws).
5. Per contra; Mr. Dharamveer Tholia, while supporting the impugned order dated 22nd November, 2018, contended that the Act of 2007, has been enacted to provide remedy of senior citizens/parents and it does confer the authority with the (D.B. SAW/672/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 01:05:03 AM) (3 of 5) [CW-412/2019] jurisdiction to make an order for eviction. Moreover, Act of 2007 being a beneficial legislation in a welfare state demands a liberal interpretation so as to achieve the legislative intent and purpose underlying.
6. According to learned counsel for the respondents (In- laws), the writ application instituted by the petitioner is not maintainable in view of the statutory remedy of appeal provided under Section 16 of the Act of 2007. It is further pointed out that respondent No. 2, is a senior citizen of advanced age of 65 years and the premises from where the petitioner has been ordered to be evicted vide impugned order dated 22 nd November, 2018, is, his self acquired property. Further, the petitioner has left no stone unturned to harass the respondents for proceedings under domestic violence Act have also been instituted. It is further pointed out that son of the respondent No. 1 and 2 (husband of the petitioner), is residing separately in a rented residence for last one year. The petitioner (wife) is also in receipt of maintenance of Rs. 8,000/- (Rupees Eight Thousand). Thus, she has been rightly ordered to be evicted from the premises in the attendant factual matrix in view of serious discord in the family which is causing not only physical but also mental agony to the respondents.
7. Repelling plea of jurisdiction, learned counsel has relied upon the opinion of Division Bench of Bombay High Court in the case of Dattatrey Dhivaji Mane Vs. Lilabai Shivaji Mane & Ors.: Writ petition No. 10611/2018, decided on 26th June, 2018, Shadab Khairi & Anr. Vs. The State & Ors.: LPA 783/2017, decided on 22nd February, 2018, by Division Bench of Delhi High Court and another Division Bench opinion of Delhi High (D.B. SAW/672/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 01:05:03 AM) (4 of 5) [CW-412/2019] Court in the case of Sunny Paul Vs. State of NCT of Delhi & Ors.: LPA 205/2017, decided on 3rd October, 2018.
8. Heard and considered.
9. A glance of the language employed of Section 4, 5 and 6, of the Act of 2007 and opinion referred to and relied upon by learned counsel for the respondent No. 1 and 2, may not detain this Court for long to conclude that the Maintenance Tribunal constituted under Act of 2007, has power and jurisdiction to make an order of eviction. Act of 2007, has been given overriding effect as would be evident from a perusal of Section 3.
10. In the case of Shadab Khairi & Anr. (supra) while dealing with the question as to whether the Maintenance Tribunal has a jurisdiction to pass an order of eviction while answering it an affirmative reiterating the opinion in the case of Sunny Paul (supra), and on a survey of other opinions in the backdrop of statutory provisions of the Act of 2007, it has been observed that in the house of the parents, son whether married or unmarried has no legal right to live in that house and he can live in that house only at mercy of his parents, up to the time his parents allowed. Merely because the parents allowed residence so long relations were cordial does not mean that the parents were to be forced to bear the burden throughout their life. At this juncture, it will be profitable to take note of the text of para 20 and 21 in the case of Shadab Khairi & Anr. (supra), which reads thus:
"20. We do not agree. At the outset, we had elaborated on how beneficial legislation in a welfare State demands a liberal interpretation wide enough to achieve the legislative purpose and be responsive to some urgent social demand in a welfare State. The object for which the Act as well as the subject Rules, extracted hereinabove, were brought into force, namely, for the welfare of parents and (D.B. SAW/672/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 01:05:03 AM) (5 of 5) [CW-412/2019] senior citizens and for protection of their life and property, leave no manner of doubt that the Maintenance Tribunal constituted under the Act has the power and jurisdiction to render the order of eviction.
21. The issue framed hereinbefore is, therefore, decided against the appellants. Before parting, it would be incumbent for us to observe that the appellants have failed to show any rights to continue to occupy the subject property against the wishes of respondent No.3, especially when the latter has complained of ill-treatment and harassment at the hands of the former."
11. In the case of Dattatrey Dhivaji Mane (supra), reiterating the view as to ambit and scope of Section 2 of Act of 2007, in no uncertain terms observed that Section 4 of the Act of 2007, permits an application for eviction of child and grand child, if the condition set out in that provision with respect to other provisions was satisfied.
12. Further, this Court while exercising extraordinary jurisdiction under Article 226 and 227 of the Constitution of India may grant or refuse relief in furtherance of public interest and on consideration of justice, equity and good conscience.
13. Keeping in view the object and underlying legislative intent of the Act of 2007; the impugned order dated 22 nd November, 2018, cannot be construed to be without jurisdiction by any stretch of imagination.
14. For the reasons aforesaid, application under Article 226(3) succeeds, and is, hereby allowed.
15. In the result, interim order dated 8 th January, 2019, is hereby vacated.
(VEERENDR SINGH SIRADHANA),J Pooja/82 (D.B. SAW/672/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 01:05:03 AM) Powered by TCPDF (www.tcpdf.org)