Rajasthan High Court - Jodhpur
Deepak Kumar vs Smt. Phoolwanti Devi And Ors on 4 July, 2018
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1615 / 2016
Deepak Kumar
----Petitioner
Versus
Smt. Phoolwanti Devi & Ors
----Respondent
_____________________________________________________
For Petitioner(s) : Dr. Sachin Acharya, with Mr. Shridhar Mehta
For Respondent(s) : Mr. Rakesh Matoria
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order 04/07/2018 The instant writ petition under Article 227 of the Constitution of India has been preferred by the petitioner Deepak Kumar being aggrieved by the order dated 16.12.2015 passed by the SDM, Sri Ganganagar directing him to pay a sum of Rs.2500/- per month to the respondents Nos.1 and 2, being the old parents of the petitioner, and also to vacate the residential premises owned by the respondents within a period of two months.
Facts in brief are that the respondents herein, filed an application under Sections 4, 5 and 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, arraying the petitioner as well as his wife Smt. Manisha as party respondents, alleging inter alia that the petitioner being their only son was not taking their care and was rather harassing them and was threatening to alienate the house exclusively owned by the respondent No.1. The respondents further pleaded that they (2 of 5) [CW-1615/2016] purchased the house No.20 in Nehranagar, Sri Ganganangar a plot admeasuring 20' x 50' and gave the same to the petitioner Deepak Kumar, but he sold the same. The respondents prayed for a direction to the petitioner to make payment of maintenance to them and also to vacate the premises in question.
The petitioner and his wife, filed reply to the application claiming therein that the house in question, though was registered in the exclusive name of respondent Smt. Phoolwanti, the mother, but as a matter of fact, the petitioner and the respondents had jointly invested to buy the property. The petitioner further pleaded that the respondent Hari Prasad was involved in property dealing and was also running a furniture industry and that both the applicants were earning handsomely and were taxpayers. The petitioner denied having any substantial source of income. The petitioner and his wife further denied the allegations regarding them having been given a house in Nehranagar, Sri Ganganagar by the respondent Hari Prasad. In support of his plea regarding the respondents being taxpayers, the petitioner annexed income tax returns of Smt. Phoolwanti. He also annexed the certificate issued by the Punjab and Sindh Bank regarding Smt. Phoolwanti and Shri Hari Prasad having stood as guarantors in the OD limit of 23 lacs sanctioned in favour of Deepak Kumar in relation to the furniture industry.
The SDM considered the averments made by the parties in the pleadings and the affidavits and after providing them opportunity of hearing, he proceeded to pass the order dated 16.12.2015 directing the petitioner to make payment of a (3 of 5) [CW-1615/2016] sum of Rs.2500/- per month to the respondents by way of maintenance and also to vacate the house owned by the respondent No.1 within a period of two months. The said order passed by the SDM under the provisions of the Act of 2007 is assailed by the petitioner in this writ petition filed under Article 227 of the Constitution of India.
Dr. Sachin Acharya, with Mr. Shridhar Mehta, learned counsel representing the petitioner, vehemently urged that the respondents are well to do people and have substantial sources of income. The petitioner is running his only business of furniture in the basement of the disputed premises and there is no other place where he can go to earn livelihood and if he forced to vacate the premises, then he will be rendered jobless and his family would face starvation. However, Dr. Acharya did not contest seriously on the aspect of the maintenance of Rs.2500/- awarded by the SDM to the respondents. He further urged that as the respondent Smt. Phoolwanti is a taxpayer and since the second floor of the premises in question is sufficient for residence of the respondents, the petitioner should not be required to vacate the premises in question and the impugned order being unjust, should be struck down to this extent.
Per contra, Mr. Rakesh Matoria, learned counsel representing the private respondents, vehemently opposed the submissions advanced by Dr. Acharya and contended that the house in question is exclusively owned by the respondent Smt. Phoolwanti. The petitioner, being the only son of the respondents, started harassing and humiliating them. The (4 of 5) [CW-1615/2016] respondents had provided ground floor and basement of the house in question to the petitioner for running the furniture business. The petitioner coerced the respondents and made them to stand guarantor in a significant OD facility from the bank. They were unknowingly made to stand guarantor in the said OD facility and now the petitioner is threatening to get the house auctioned in the garb of clearing off the said OD limit. The respondents, who are in the eve of their lives, have no other source of livelihood other than renting out the house exclusively owned by them. He relied upon the Division Bench judgment of the Delhi High Court in Shadab Khairi & Anr. Vs. The State & Ors. (LPA No.783/2017) decided on 22.02.2018 and Single Bench judgment of Delhi High Court in Sachin & Anr. Vs. Jhabbu Lal & Anr. (RSA No.136/2016) decided on 24.11.2016 and urged that the SDM is competent to pass an order directing the eviction of a legal heir of a senior citizen from self-acquired property on the ground of ill treatment and non- maintenance. With these submissions, he craved dismissal of the instant writ petition.
I have given my thoughtful consideration to the arguments advanced at bar and gone through the material available on record. Indisputably, as per the sale deed placed on record with the reply by the respondents, the house in question is exclusively owned by the respondent Smt. Phoolwanti, who is registered owner thereof. The respondents while instituting the application under the Act of 2007, categorically asserted that the petitioner was not maintaining them and rather was harassing and ill-treating them in their own house, significant portion whereof (5 of 5) [CW-1615/2016] had been provided by the respondent No.1 to the petitioner for residence and for running his business. Thus, unquestionably, the respondent No.1 Smt. Phoolwanti has a right under the scheme of the Act of 2007 to get vacated the portion of her own house, which, the petitioner had simply been given permission to reside and to do business. As the petitioner has failed to perform a son's obligations towards the parents, he has no right to stay on in their house contrary to their wishes and to their detriment.
In this background and considering the ratio of the Division Bench judgment of the Delhi High Court in the case of Shadab Khairi (supra), this court is of the firm opinion that the impugned order dated 16.12.2015 (Annex.5) passed by the SDM, Sri Ganganagar is perfectly just and proper and does not suffer from any error apparent on the face of record warranting interference therein in exercise of the supervisory writ jurisdiction of this court. Hence, this court is not inclined to interfere therein by exercising the supervisory writ jurisdiction conferred upon it by Articles 226/227 of the Constitution of India. Hence, the writ petition as well as the stay petition are dismissed as being devoid of merit. No order as to costs. The SDM, Sri Ganganagar is directed to ensure that the order Annex.5 dated 16.12.2015 is enforced within a period of two months from today.
No order as to costs.
(SANDEEP MEHTA), J.
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