Punjab-Haryana High Court
Suresh Rani vs Soma Devi @ Pushpa Devi & Anr on 11 December, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1) RSA No.2491 of 2013(O&M)
Date of decision: 11.12.2013
Suresh Rani ......Appellant(s)
Versus
Soma Devi @ Pushpa Devi & anr. ......Respondent(s)
(2) RSA No.2651 of 2013(O&M)
Suresh Rani ......Appellant(s)
Versus
Soma Devi alias Pushpa Devi & anr. ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Pt. V.K.Sharma, Advocate for the appellant.
Mr. H.S. Bhullar, Advocate for the respondents.
Rakesh Kumar Garg, J.
This judgment shall dispose of two appeals i.e. RSA No.2491 and 2651 of 2013, which have arisen out of two civil suits filed between the parties and were clubbed and decided together vide one common judgment of the trial Court and appeals arisen out of the aforesaid judgment were also decided by one common judgment of the First Appellate Court.
Brief facts of the case are that plaintiff-respondent-Soma Devi sought mandatory injunction directing the defendant-appellant and proforma respondents to hand over the possession of the suit property and also for recovery of damages for use and occupation of the said property Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh by the defendants.
In the second suit, the plaintiff-respondent sought injunction restraining the appellant from unnecessarily harassing and threatening them and other family members by making false complaints except claiming her legal rights in due course of law and for mandatory injunction directing the appellant to vacate the demised premises.
The brief facts of the case, as put forth by the plaintiff- respondent are that the plaintiff was the owner of House No.673, Milk Colony Dhanas, Chandigarh, and was residing therein with her other family members. Defendant No.1 was married to Rakeshwar Singh, son of the plaintiff-respondent. However, he had gone abroad since long. The plaintiff, her husband and other family members took care of the defendants in the absence of Rakeshwar Singh on moral consideration as Rakeshwar Singh never bothered to provide any monetary help or visited them ever since the time he left India. Defendant-appellant Suresh Rani continued to live normal life in the demised property till recently. However, for the past some time, she had shown signs of improper and abnormal living. She started coming late to the house. In spite of repeated advises and persuasions, defendant-appellant did not mend herself but on the other hand started creating lot of problems for the other family members residing in the house. A number of complaints were made by the appellant-Suresh Rani to the police and other Authorities by stating therein false facts against the plaintiff-respondent, her husband, her daughters and her son etc. She also made complaints to the police on a number of times on the basis of which the plaintiff and her other family members were called resulting in a lot of harassment to them. In other words, appellant-Suresh Rani completely disturbed the normal living of the plaintiff-respondent and her ailing and aged husband and other family Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh members. It was further averred that because of the conduct of defendants-appellant, there was lot of tension between the family of the plaintiff-respondent and appellant-defendant. She had proclaimed that she will get the plaintiff and other family members arrested in some other criminal false case. Thus, in these circumstances, the defendants were told to leave the demised property and start living somewhere else but they were not listening to any reasoning. It was further averred that defendants were mere licensees of the plaintiff, which had been revoked by the plaintiff because of their omissions and commissions referred to above and as such the defendants have got no right to continue living in the demised premises which were in their use and occupation. Thus, from 15.12.2006, when they were requested to leave the rooms in question and they refused to do so, they were in unauthorized occupation of the same. Therefore, the plaintiff was entitled to mandatory injunction directing the appellant to leave the property in question and handing over the possession to her. It was further averred that on account of revocation of the licence, the defendants became liable to pay damages for use and occupation of the rooms w.e.f. 15.12.2006 and thus, necessity arose to file the present suit.
Upon notice, the defendant-appellant and proforma respondents appeared and filed written statement raising various preliminary objections regarding maintainability of the suit. It was further submitted that the suit property was allotted in the name of Soma Devi on the basis of dairy farm run by Rakeshwar Singh, husband of appellant and father of defendant-respondents No.2 and 3 in village Burail and in lieu of rehabilitation, the plot was allotted at Dhanas. Initially, the allotted plot was measuring 5 marlas and later this allotment was converted into 10 marla plot upon which the present house has been constructed and the Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh appellant kept on running the dairy business from the said premises. The plaintiff-respondent is having no right, title or interest directly in the property and the allotment was made in fiduciary capacity. It was further averred that the suit was not maintainable under the law as possession of the appellant on the premises is based on right, title or interest created in the property by virtue of her marriage with Rakeshwar Singh, the son of the plaintiff who was solely dependent on the dairy business. Rest of the allegations were categorically denied and dismissal of the suit was prayed for.
From the pleadings of the parties, the following issues were framed:
"1. Whether the plaintiff is entitled for decree for mandatory injunction directing the defendant to vacate one room set on the ground floor of H.No.673, Milk Colony, Dhanas and for permanent injunction restraining the defendant from unnecessary harassing and threatening the plaintiff?
1(a) Whether the plaintiff is entitled to recovery of damage for the use and occupation of the demised premises by the defendant? OPP
2. Whether the plaintiff has not approached the court with clean hands? OPD
3. Whether the plaintiff has concealed the material facts from the Court? OPD
4. Whether the suit is not maintainable? OPD
5. Whether the present suit has not been properly valued? OPD Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh
6. Relief."
After hearing counsel for the parties, the Civil Judge (Junior Division), Chandigarh, vide judgment dated 22.11.2011 decreed both the suits in the following terms:
"After hearing both the counsels of both the parties, I am of the considered opinion that the house in dispute is owned and possessed by the plaintiff Soma Devi. The defendant admitted that the plaintiff gave the house in dispute for use and occupation to her as such it is presumed that the defendant was mere a licensee in the said house. The defendant failed to prove that she was having any concern with the house in dispute. She also failed to establish by documentary or oral evidence that her husband was running a dairy at Burail in lieu of which the said site was allotted to her husband Rakeshwar who being illiterate was got cheated by the plaintiff and the plaintiff Soma Devi allotted the site in dispute in her favour. The defendant did not produce any record maintained by her husband while running the dairy like payment of electricity, water charges payment of fodder, sale or purchase and keeping of buffaloes by Rakeshwar Singh. The defendant also failed to establish that from where her husband arranged the money for purchasing the buffaloes for the dairy. It is difficult to presume that a person of a very small age can arrange a Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh huge amount of his own and can run a dairy. Hence, the defendant failed to prove that he was having any concern with the plot rather it is presumed that she was mere licencee as such mandatory injunction is passed against the defendant to vacate one room set on the ground floor of House No.673, Milk Colony, Dhanas, U.T., Chandigarh which was temporarily given to defendant by the plaintiffs at the time of separation from other family members on her oral undertaking for maintaining peaceful atmosphere and until she makes alternative arrangement of accommodation.
The plaintiffs cannot avail the remedy of permanent injunction restraining the defendant from unnecessary harassing and threatening the plaintiffs and other family members by making false complaint as it is settled law that one cannot restrain anybody from making complaints to the police officials. The plaintiffs had separate remedy against defendant for which the defendant is making the false complaint as such the defendant cannot be restrained from making false complaint as only after the investigation of the complaint it is made out whether the complaint is false or not. Hence, no relief of permanent injunction is made out by the plaintiff restraining the defendant for making false complaints against Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh the defendant as such the said relief is dismissed.
The plaintiff has proved that the rate of rent of the demised premises in the said locality is more than Rs.3000/- per month. The defendant also admitted the fact that in the said locality where the house in dispute is situated the rate of rent is Rs.4000/- per month and they are in possession of house since December, 2006. As such the plaintiffs are entitled to the recovery of damages for the use and occupation of the one room set on the ground floor of the house in dispute at rate of Rs.3000/- per month from December, 2006. Hence these issues are decided are partly decided in favour of the defendant and partly against the plaintiff. Issue No.2 to 4.
The onus to prove these issues was upon the defendant. All these issues were neither argued nor pressed by the defendant. Hence, all these issues are proved in favour of the plaintiff and against the defendant.
Issue No.5.
The onus to prove this issue was upon the defendant.
The defendant has proved that the plaintiffs have not affixed the proper court fee upon the damages claimed by them at a rate of Rs.3000/- per month from December, 2006. Hence this Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh issue is proved in favour of the defendant and against the plaintiff and the plaintiff is directed to pay the ad valorem court fee within a period of two months.
In view of the above discussion, the suit of the plaintiff is partly decreed and decree of mandatory injunction is passed against the defendant directing the defendant to vacate one room set on the ground floor of House No.673, Milk Colony, Dhanas, U.T., Chandigarh. The defendant is directed to deliver the vacant possession of the said premises within 3 months and further suit for damages is also decreed against the defendant for use and occupation of the demised premises @ Rs.3000/- per month from December, 2006 till the date of vacation and the suit for permanent injunction restraining the defendant from unnecessary harassing and threatening the plaintiffs and other family members by making false complaints on the instigation of her parents, relatives and supporters in the greed of property and money, except claiming her legal rights if any in due course of law stands dismissed. The plaintiff is directed to make up the deficiency of court fee within 2 months from the date of order. The copy of this judgment be also kept in the connected similar case. Decree sheet be prepared accordingly. File Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh be consigned to the record room."
Appeals filed by the defendants against the aforesaid judgment and decree of the trial Court, were also dismissed by the Additional District Judge, Chandigarh, vide impugned judgment and decree dated 8.4.2013 observing as under:
19. After hearing rival contentions from both the sides, I have gone through the impugned judgment and decree as well as the evidence led by both the sides. I have gone through the cross-
examination of appellant Suresh wherein she admitted certain facts that the house in question is owned by plaintiff and her husband had gone to England on 26.7.1991. She also admitted that she is not paying anything to the plaintiff for use and occupation of the same and plaintiff is bearing all the charges of water and electricity charges for whole of the house. This fact has also come that relations between the parties are not cordial as she stated that she is not on speaking terms with plaintiff or other family members for the last 5-6 years. She also admitted that she had made complaints against plaintiff and other family members. So all these facts show that the relations between the parties are not cordial. Even this fact has also come that at the instance of complaint filed by Suresh Rani; proceedings u/s 107/51 Cr.P.C were initiated against his father in law and brother in law.
Saini Pushpinder2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh At this juncture, I appreciated the arguments of learned counsel for the plaintiff that when this fact is apparently proved on record that the relations between the parties are not cordial; then there was every reason with the plaintiff to revoke the license of the defendant.
20. Further, the perusal of the entire evidence on record reveals that she has not brought on record any evidence that her husband was doing dairy business; as she stated that she is not having any record about the sale, purchase or keeping of buffaloes by her husband. She even does not know the name of the owner of the land or house in which the buffaloes were kept at Burail.
At this juncture learned counsel for plaintiff raised point that the dairy business was not run by her husband but by plaintiffs as PW-1 in his cross- examination brought the dairy accounts regarding selling of milk and the same in written in his hand. He raised point that this also negates the version of defendant that her husband was running any dairy business.
21. So whatever, facts & circumstances have come on record; those reveals that the suit property is the property of plaintiff No.1 and the plaintiff No.1 has given the portion of the house in question to the defendants as a licensee for use Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh and occupation of the same. The defendant has failed to prove any right in the suit property. Moreover, the evidence on the file has also proved this fact that the relations between the parties were not cordial. So, there was every reason with the plaintiff to revoke the license. Further the learned trial Court has rightly observed that this averment of defendant that her husband was running dairy business is a false plea as a person of small age is unable to arrange huge amount to run the business and rightly came to conclusion that the defendant being licensee and when her license has been revoked w.e.f. 15.12.2006; then she is bound to hand over the portion in her possession to the plaintiff.
22. Further, the learned trial Court has also rightly granted the relief of damages as this fact is admitted by defendant in her cross-examination that the premises which are in her possession could fetch the rent to the tune of Rs.4000/- per month and awarded the damages @ Rs.3000/-
per month from December, 2006."
Aggrieved from the aforesaid judgments and decrees of the Courts below, the defendant-appellant has filed the instant appeal submitting that the following substantial questions of law arise in this appeal for consideration of this Court:
"(i) Whether the courts below erred in law in not Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh dismissing the Second/present suit being barred under the mandatory provisions of Order 2, Rule 2 of the Code of Civil Procedure, 1908 as amended up to date.
(ii) Whether the courts below were in manifest error in not drawing adverse inference against respondent for not stepping in the witness box under Section 114 of the Indian Evidence Act, 1882?
(iii) Whether both the courts below committed an error of law by not drawing inference that Mr. Rakeshwar Singh, husband of the appellant has not been heard for the last more than seven years and as such the appellant should have been regarded as the widow of the said son of the respondent under Section 108 of the Indian Evidence Act, 1882?
(iv) Whether both the courts below gravely erred in law in not considering the fact that the appellant is a dependent on the respondent under Section 19 of the Hindu Adoption and Maintenance Act, 1956?
(v) Whether the respondents being the plaintiffs are required to stand on their own legs and prove their case and cannot take advantage of the weakness of the defence, if any?
(vi) Whether a full time Government Employee in the service of the State of Haryana can do Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh private business that, too, without sanction from the competent Authority?
(vii) Whether both the courts below erred in law in not appreciating that the contradictions in the pleadings and evidence of the plaintiff-respondent cannot be reconciled in any manner?
(viii) Whether the courts below erred in law that appellant being the daughter-in-law of the respondent is being victimized inspite of her rendering services in the running of the dairy business?
(ix) Whether the courts below committed a serious error in law in altogether ignoring the salutary provisions of Section 17 of the Protection of Women from the Domestic Violence Act, 2005, which confers right on the appellant to reside in the shared household, whether she has any right, title or interest in the same or not?
(x) Whether the impugned judgments are based on wrong appreciation of law, misreading of evidence and documents and the same has resulted in miscarriage of justice?"
In support of his case, learned counsel for the appellant has vehemently argued that plaintiff-Soma Devi has not stepped into the witness box to support her case and therefore, in view of the law laid down in the judgment of the Hon'ble Supreme Court in Adivekka & ors. v. Hanamavva Kom Venkatesh 'D' by LRs 2007(2) RCR (Civil) 811 and judgment of this Court in Smt. Jangir Kaur & ors. v. Mohinder Singh & Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh ors., 2007(3) RCR (Civil) 610, non-examination of the party to the lis would lead to drawing of an adverse inference against her and the suit was liable to be dismissed.
Learned counsel for the appellant has further raised an argument that second suit filed by the plaintiff-respondent was barred under Order 2 Rule 2 CPC as the second suit filed by her was in respect of the same cause of action as that of the previous suit and was not entitled to more than one relief which she has raised in the first case and therefore, the second suit could not have been filed without leave obtained from the Court. To support his case, learned counsel for the appellant has placed reliance upon M/s Virgo Industries (Eng.) P. Ltd. Versus M/s Venturetech Solutions P. Ltd. 2012(4) Civil Court Cases 0307. Further the argument has been raised on behalf of the appellant that in the instant case, in view of the provisions of Section 41(h) of the Specific Relief Act, as remedy of mandatory injunction was not available, the appellant could have sought possession of the suit property which was more efficacious and thus, in view of the aforesaid, the substantial questions of law, as raised, do arise in this appeal.
However, on the other hand, learned counsel representing the respondents has supported the impugned judgments and decrees of the Courts below and has argued that subject matter in both the suits was different and the parties were also different in both the suits though relief sought was the same and the parties were same. Counsel for the respondents has brought to the notice of this Court that in the first suit, the plaintiff-respondent had sought injunction to deliver possession after cancellation of the licenses and has sought damages for use and occupation of the demised premises whereas in the other suit, the plaintiff-respondent has sought injunction against the appellant and Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh proforma respondents No.2 and 3 restraining them not to harass the plaintiff-respondent by filing frivolous complaints and had sought mandatory injunction seeking possession of the suit property and thus, the appeals are liable to be dismissed.
I have heard learned counsel for the parties.
The argument raised on behalf of the appellant that non- examination of the plaintiff-respondent Soma Devi as witness is fatal to the suit, is liable to be rejected as her husband, who was also the plaintiff in the second suit, had duly stepped into witness box and had supported the pleaded case of the parties. Moreover, husband of the plaintiff, being a close relation was in the knowledge of the facts of the case and therefore, non-examination of the plaintiff-Soma Devi in the cases was not fatal at all. One of the plaintiffs has stepped into the witness box duly supporting their case. Moreover, both the suits were clubbed together and therefore, no adverse inference is to be drawn in the instant case.
The argument raised on behalf of the appellant on the basis of Order 2 Rule 2 CPC is again liable to be rejected as neither such argument has been pleaded nor has been raised before the trial Court and such an issue has been raised before the Appellate Authority only and thus, in view of judgment of Hon'ble the Supreme Court in Bachhaj Nahar v. Nilima Mandal & anr. (2008) 17 SCC 491, the appellant cannot be allowed to raise such an issue in the instant case. Even issue No.4 with regard to maintainability of the suit was not pressed by the appellant and the proforma respondents before the courts below.
At this stage, the judgment of Hon'ble the Supreme Court in Sant Lal Jain v. Avtar Singh 1985(1) RLR 736 be noticed, according to which, on termination of licence, suit for mandatory injunction directing the licensee to hand over the possession is maintainable and in view of the Saini Pushpinder 2013.12.18 15:28 I attest to the accuracy and integrity of this document High Court Chandigarh aforesaid judgment, the argument raised on behalf of the appellant that suit for mandatory injunction is not maintainable, is liable to be rejected.
Faced with this situation, counsel for the appellant has vehemently argued that the appellant was the owner of the suit property in dispute as the same was allotted on the basis of the Dairy farm owned by her husband. Since he was in Govt. job, it could not have been allotted to him and thus, the same was got allotted in the name of the plaintiff- respondent, who was in fiduciary capacity and in view of the aforesaid, suit itself was not maintainable. Again the aforesaid argument is liable to be rejected as the appellant has failed to produce any such evidence to support her plea.
No other point was argued.
No substantial question of law, as raised, arises in these appeals.
Dismissed.
December 11, 2013 (RAKESH KUMAR GARG)
ps JUDGE
Saini Pushpinder
2013.12.18 15:28
I attest to the accuracy and
integrity of this document
High Court Chandigarh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2651 of 2013(O&M) Date of decision: 11.12.2013 Suresh Rani ......Appellant(s) Versus Soma Devi alias Pushpa Devi & anr. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Pt. V.K.Sharma, Advocate for the appellant.
Mr. H.S. Bhullar, Advocate for the respondents. Rakesh Kumar Garg, J.
For orders, see RSA No.2491 of 2013 titled as "Suresh Rani Versus Soma Devi @ Pushpa Devi & anr.".
December 11, 2013 (RAKESH KUMAR GARG)
ps JUDGE
Saini Pushpinder
2013.12.18 15:28
I attest to the accuracy and
integrity of this document
High Court Chandigarh