Delhi District Court
Ajay Singh S/O Late Sh. Virender Singh vs V on 16 February, 2023
IN THE COURT OF SPECIAL JUDGE (NDPS): NORTH
DISTRICT: ROHINI COURTS : DELHI
CRIMINAL APPEAL No. 91/2022 (DLNT01-005481-2022)
1. Ajay Singh S/o late Sh. Virender Singh
2. Renu Ahlawat W/o Sh. Ajay Ahlawat
Both R/o
H.No. 137/138, A-3, Sector-11,
Rohini, Delhi-10085 ...Appellants
V.
Divya
W/o Manish Ahlawat /D/o Sh. Jaipal Singh
R/o H. No.58, Barwala New Chaupal
Barwala, Delhi. ....Respondent.
Date of Institution : 20.06.2022
Judgment Reserved On : 11.01.2023
Judgment Passed On : 16.02.2023
JUDGEMENT
1 This is a criminal appeal preferred by the appellants (Respondents before the Ld. Trial Court) against the impugned order dated 18.06.2022 passed by the court of Ld. Metropolitan CA No. 91/2022 Page 1/13 Magistrate (M.M)- 01 (Mahila Court), North District, Rohini Courts, Delhi in a Complaint Case No. 717/2022 titled as Divya V. Manish Ahlawat & Ors', under Section 12 of the Protection of Women from Domestic Violence Act 2005 (hereinafter referred to as 'the D.V Act') whereby Ld.M.M has directed the SHO concerned to provide necessary police assistance to the complainant/respondent herein so that she can re-enter in her matrimonial house i.e H.No. A-3, 136-138, Sector-11, Rohini, Delhi ( hereinafter referred to as 'the property in question'). and Protection Officer to ensure the implementation of order dated 26.04.2022 and 09.05.2022.
2 The facts in brief of the appeal as pleaded are that complainant/respondent herein had filed an petition under Section 12 of the DV Act. During the proceedings of the said case, Ld. MM vide order dated 26.04.2012 passed an ex-parte order whereby the appellants herein have been restrained from dispossessing the complainant/respondent herein from the matrimonial home i.e H.No. A-3, 137/138, Sector-11, Rohini, Delhi-110085. Appellants/respondents (before the Ld. Trial Court) were also restrained from committing any act of domestic violence qua complainant. The SHO concerned too was directed to provide assistance.
2.1 It is further submitted in the appeal that appellant no.2 is the exclusive owner of the property-in-question having purchased the same by virtue of registered instruments. The son of the appellants CA No. 91/2022 Page 2/13 ( husband of respondent herein) nor the respondent herein have any right, title or interest in the property in question. Further, neither the appellant no.1/husband nor respondent herein(wife) are residing at the property in question. It is alleged that the respondent herein/wife and her family members are cheaters and wanted in criminal case FIR No.184/2020 under Section 420/406/34 IPC PS IP Estate . The appellants never received any notice from the Trial Court and they are not aware of the averments raised by the respondent herein/wife. The respondent herein/wife has not been residing in the property in question since 12.03.2022. On the said day without any reason she started creating rukus and extended threats to the appellants and even made one PCR call stating that she had consumed All Out liquid. Thereafter, on inquiry, no such poisonous substance was found to have been consumed by the respondent. The respondent also tried to trespass in the property in question for which complaint in writing was given to P.S Shahbad Dairy for which FIR No.0339/2022 under Section 454/380 IPC was registered against her.
2.3 During the course of the proceedings, respondent/wife filed an application which was allowed vide exparte order dated 26.04.2022 restraining the appellants from dispossessing the respondent from property in question. The appellants filed an appeal against the said order which was stayed by the by Ld. ASJ (North) Rohini vide order dated 28.04.2022. Thereafter, the respondent filed another application seeking directions for the SHO CA No. 91/2022 Page 3/13 concerned to implement the order dated 26.04.2022 and 09.05.2022 which was allowed and SHO concerned was directed to provide necessary police assistance to the complainant/respondent herein so that she can re-enter in her matrimonial house i.e H.No. A-3, 136- 138, Sector-11, Rohini, Delhi and Protection Officer to ensure the implementation of order dated 26.04.2022 and 09.05.2022
3. The said impugned order has been challenged by the appellant primarily on the following grounds:
(i) The impugned order has been passed by the Ld. MM in a capricious manner and Ld. MM has completely overlooked the fact that the respondent has not approached the court with clean hands and suppressed material facts.
(ii) The Ld. MM has passed the impugned order without following the principles of natural justice without giving an opportunity to the appellants to file their detailed reply and has passed the impugned order only on the report of SHO concerned.
(iii) Ld. MM has failed to appreciate the fact that respondent has concealed the factum of stay order dated 28.04.2022 whereby the operation of order dated 26.04.2022 had been stayed. The respondent also concealed the subsequent order dated 23.05.2022 CA No. 91/2022 Page 4/13 through which the said stay order was continued.
Further, respondents has also concealed the fact that she has already filed a contempt petition proceedings against the appellants before the Hon'ble High Court in which no interim relief has been granted to her.
(iv) Ld. MM has also overlooked the factum of pendency of contempt petition before the Hon'ble High Court and as such Ld. MM had no power to try and entertain the application in question filed by the respondent.
(v) The Ld. MM further completely overlooked the fact that the respondent has illegally trespassed in the property of the appellants by breaking open the locks for which one FIR bearing No. 339/2022 under Section 454/380 IPC was got registered at P.S Shahbad Dairy. Further, it is overlooked by Ld. MM that the respondent is an accused of trespassing and is not co- operating with the investigation of the case. Through impugned order, Ld. MM has not only granted protection to the respondent/wife from police action, but has also extended protection from arrest.
(vi) The impugned order passed by Ld. MM is based upon conjectures and surmises which needs to be set aside as the same has been passed beyond its jurisdiction.
CA No. 91/2022 Page 5/134. Ld. Counsel for the appellant in support of the said grounds of the appeal, further argued the impugned has been passed in haste without following the principles of natural justice. It is further argued that the respondent is not residing at the matrimonial home as she left the same since 12.03.2022 and went to her parental house. She rather committed trespass in the property in question for which an FIR too has been got registered. Further, material facts have been concealed by the respondent and she has violated the restraint order dated 20.12.2022 of Ld. ADM passed in the proceedings instituted by the appellants under the Maintenance and Welfare of the Parents and Senior Citizens Act 2007 qua the very same property in question.
5. Per contra, Ld. Counsel for the respondent contended that the order passed by Ld. MM does not suffer from any legal infirmity which calls for interference. The respondent neither trespassed into the house nor violated any restrain order passed by Ld. ADM or concealed any material facts from the Hon'ble Court. She has all the rights to stay in the property in question being her Matrimonial Home . The institution of separate contempt proceedings against the appellant does not in manner takes away the jurisdiction of Ld MM under the DV Act .The reliance is also placed upon the following judgments;-
6. Heard and considered the record as well as contentions of the parties.
CA No. 91/2022 Page 6/137. The appeal of the appellants is primarily based upon two grounds. The first ground is that the principles of natural justice being not followed by the Ld. MM while passing the impugned order and the Ld. MM had no power to pass ex-parte order which has been done herein.
8. It is further the grievance of the appellants that the said order has been passed in great hurry, without giving any opportunity to the appellants for filing any reply.
9. Before appreciating the said legal issue raised on behalf of the appellants, the sequence of events which took place before the Ld. Trial Court consequent to the filing of the complaint under Section 12 of the D.V Act needs to be considered. The said petition accompanied with the application seeking ad-interim relief under Section 23 of the D.V Act was moved before the Ld. Trial Court. The Ld. Trial Court took cognizance of the same on 26.04.2022 thereby ordering issuance of the notice to the respondent no.1. Further, the record reflects that the notice was received by appellant no.1 herein only and the counsel for the respondents ( appellant herein ) appeared before the Ld. Trial Court on 18.06.2022.
10. The objection raised on behalf of the appellant is that the principles of natural justice were not followed and they were not heard nor the relevant record being considered while passing the impugned order. The said order itself reflects that the arguments were advanced on behalf of the respondents ( appellant herein ) CA No. 91/2022 Page 7/13 including the reliance was placed upon the order of this Court dated 28.04.2022 and 23.05.2022 passed in the connected criminal appeal No. 64/2022 between the parties. The impugned order does not in any manner reflects that any opportunity for filing any additional documents or reply etc was sought and the same being declined by the Ld. Trial Court. Therefore, the arguments of non-following of principles of natural justice or the order being passed in haste does not seem to be forthcoming from the record. Even otherwise the Ld MM while dealing with the application u/s 23 of DV Act is competent to pass the requisite interim relief order ex parte u/s 23(2) of the Act if the situation so warrants .
11. The next factual ground raised in the present appeal is the fact the respondent herein being not residing at the property in question since 12.03.2022. She left the said matrimonial home and is residing at her parental home as mentioned in the petition itself. She rather, on the pretext of the order of the court, committed trespass at the property in question and in this regard, the reliance is placed upon FIR No. 339/2022 dated 11.05.2022 registered against her. The reliance is also placed upon the order passed by Ld. ADM dated 20.12.2022 in the connected proceedings initiated under Maintenance and Welfare of Parents and Senior Citizen Act 2007. The restraint order has been passed against the respondents including the respondent herein restraining them from entering into the property in question which is exclusively owned by the appellants.
CA No. 91/2022 Page 8/1312. The issue herein is the basis/ material on which the impugned order has been passed by the Ld. M.M and whether the Ld. MM being competent to pass the order in a petition under Section 12 read with Section 23 of the D.V Act. Therefore, for appreciating the said issue, the material before the Ld. Trial Court while passing the said order needs to be looked into and the nature of reliefs sought therein. Admittedly, at the time of passing of the impugned order, the appellants herein had not filed any reply to the main petition or to the interim application and only placed reliance upon the orders of this Court dated 28.04.2022 and 23.05.2022 passed in the connected criminal appeal No. 64/2022 between the parties as well as upon the aforementioned FIR.
13. As far as the orders of this Court are concerned, the judgment dated 21.09.2022 is already passed thereby upholding the order of Ld. Trial Court whereby they were restrained from dispossessing the respondent ( complainant before the Ld. Trial Court) from the matrimonial home H.No. A-3, 136-138, Sector-11, Rohini, Delhi without due process of law. Prior to that there was no finding given by this court and it had only stayed the impugned order till the regular hearing . This order only has been carried forward by the Ld. Trial Court through the present impugned order. Further till that time, the only available material before the Ld. Trial Court was the main petition as well as the documents relied upon by the respondent ( complainant) wherein a categorical averment has been made that the property in question bearing H.No. A-3, 136-138, CA No. 91/2022 Page 9/13 Sector-11, Rohini, Delhi, is her matrimonial home/shared household. The Trial Court record further reflects that till date appellants herein as well as the respondent no.1 (before the Ld. Trial Court) preferred not to file any reply denying the said fact of any right, title claim of the complainant/respondent herein and the said property being not the matrimonial home.
13.1 Rather, the present appeal is too conspicuously silent in this regard and there is a constructive admission. In case, the appellants want to assert their rights over the property in question being the exclusive owners, the onus is upon them to show that it is not the matrimonial home/shared household and respondent herein having not resided at any point of time at the said property or it being not shared household as envisaged under Section 2(s) of the D.V Act. No separate residential address of Manish Ahlawat (Respondent no.1 before the Ld. Trial Cout) has been filed till date. Thereby reflecting that the property in question continues to be the share household / the matrimonial home .
14. The last limb of the arguments advanced on behalf of the appellants is the concealment of the material facts by the respondents before the Ld. Trial Court. In this regard, the reliance is placed upon the contempt petition preferred before the Hon'ble High Court in this regard wherein the said same issue has been raised with the similar relief. As far as the issue of concealment of material fact is concerned, impugned order itself records the submissions of appellants in this regard and the said fact being CA No. 91/2022 Page 10/13 considered by the Ld. Trial Court. Even otherwise, the respondent herein has filed on record the order in the said Contempt Petition dated 15.06.2022 and it appears that the said contempt petition is only seeking criminal prosecution for the contempt of the order of Ld. MM dated 26.04.2022. In no manner, the present relief given in the impugned orders could be said to be within the scope of contempt petition.
15. The reliance has also been placed upon the order of Ld. ADM dated 20.12.2022 whereby the restraint order has been passed against the respondent from entering into the premises H.No. A-3, 136-138, Sector-11, Rohini, Delhi owned by the appellants. As far as the said order is concerned, it is a subsequent event happened after passing of the impugned order. The said order cannot be considered in the present appeal being a subsequent event. The respondent has already challenged the said order in W.P (C) No. 1094/2023 before the Hon'ble High Court of Delhi and order dated 30.01.2023 has clarified that the said order shall not affect the adjudication of any other proceedings pending between the parties. Therefore, the said order of Ld. ADM is no longer relevant in the present proceedings.
16. On merits, it is the case of the appellants that the respondent/wife has suppressed the material facts from the Ld. MM while getting the interim relief qua the shared household . The respondent herein is not residing at the shared household since 12.03.2022 ,being residing at her parental home. Even in this regard, CA No. 91/2022 Page 11/13 the FIR has been got registered by appellant no.2 i.e father-in-law of respondent herein which again corroborates the fact of she being not in possession nor having any right or interest in the said property-in- question.
16.1 The said contention of the appellants regarding material facts being suppressed qua the possession of shared household having being lost by the respondent/petitioner ( before the Ld. MM), has to be seen in the light of the material available with the Ld. MM at the time of passing of the impugned order. It is apparent from the Trial Court Record (TCR) that at that point of time, the Ld MM was having the petition under Section 12 of D.V Act, application under Section 23 of D.V seeking interim relief apart from the documents relied upon by the petitioner for proving her case. As far as the contention of the appellants that the respondent herein/petitioner being not in possession of said household, is not reflected from any of the pleadings of the petitioner (respondent herein) available with the Ld. MM either in the petition, interim application, affidavit or the documents relied thereof. Rather, it is the case of the petitioner (respondent herein) that she is residing at the said shared household since marriage. Para-(e), (z) and (bb) of the main petition have the specific pleadings in this regard. Apart from that the petitioner also placed reliance upon the MLC prepared at Dr. BSA Hospital, Rohini, of the petitioner herself with respect to the some incident of assault etc dated 12.03.2022. Apart from that, she also placed reliance upon one Zomato Food order summary receipt dated CA No. 91/2022 Page 12/13 18.04.2022. These materials were only available with the Ld. MM at the time when the said order was passed and therefore, it cannot be said that there was any illegality or infirmity in the impugned order.
17. In view of the above-discussed reasons and observations, I am of the considered opinion that there is no legal infirmity in the impugned order which calls for any interference and hence, the same is upheld. The appeal is accordingly dismissed. No order as to the costs .
TCR be sent back with a copy of this order.
Appeal file be consigned to Record Room.
Announced in the Open Court (GAGANDEEP SINGH)
On 16.02.2023 Special Judge (NDPS):
North, Rohini Courts, Delhi
CA No. 91/2022 Page 13/13