Delhi District Court
Vide This Judgement vs Manish Kapoor & Ors. Bearing No. Cs ... on 19 January, 2021
IN THE COURT OF MS. NEELAM SINGH,
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
MCA No.10 /20
Shilpi Kapoor v. Rajesh Kapoor
JUDGMENT
1. Vide this judgement, I shall dispose off the appeal preferred by the appellant/defendant for setting aside the order dt. 14.12.2020 passed by the court of Ms. Chitranshi Arora, Ld. Civil Judge02, South East, Saket in case titled as Rajesh Kapoor vs. Manish Kapoor & Ors. bearing No. CS 1167/20 whereby the application under Order XXXIX rule 1 and 2 r/w Section 151 CPC filed by the plaintiff has been allowed.
2. The factual matrix of the case is that respondent is the sole and absolute owner of the first floor of the suit property. Appellant had strained materital relations with the respondents. In order to bring an end in the differeces in their conjugal relations, appellant was gifted the third floor of the property by respondent vide gift deed dt. 22.10.2018. Appellant despite having a separate residence on the third floor is also occupying one room and kitchen at the first floor on the ground that she is suffering from osteoprosis and neck pain, she cannot shift at third floor and further more, it is the case of the appellant that first floor of the suit property is her matrimonial home and she has been residing there continuously and without any hindrance. It is also her case MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 1 of 29 that the kitchen on the third floor is not operational, however, respondent submits that the kitchen is operational. The main contention of the appellant is that vide order dt. 14.12.2020, appellant alongwith her children is directed to leave / vacate the first floor of the suit property and further restrained from entering / interfering with peaceful possession and enjoyment of property at first floor of E213, Amar Colony, Lajpat Nagar till the final disposal of the suit.
3. It is submitted by Ld. Counsel for appellant that the impugned order passed by Ld. Trial court is based on whims & fancies of the court and the same is not tenable in the eyes of law and the impugned order suffers from serious infirmity and the same is not in consonance with the settled principles of law. It is further submitted by Ld. Counsel for appellant that Ld. Trial court has failed to appreciate the fact that there was absolutely no dispute with regard to the fact that the appellants were in use, occupation and possession of one room with common use of kitchen and other facilitities on first floor of the property in question.
4. It is submitted that Ld. Trial court has exceeded its jurisdiction by passing the impugned order thereby granting relief to the plaintiff / respondent no. 1, which relief has not been sought in the prayer clause of the interim application by the respondent no. 1.
5. It is submitted that impugned order passed by Ld. trial MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 2 of 29 court is likely to cause great hardship and harassment to the appellants who have been suffering due to the illegalities of the respondents who in order to dispossess the appellants have filed the instant suit in collusion and connivance with each other.
6. It is submitted that Ld. Trial court appears to have passed the impugned orders on the wrong assumption that court can pass orders even beyond the relief prayed by the plaintiff in the interim application on alleged oral submissions of counsel of plaintiff.
7. It is further submitted by Ld. Counsel for appellant that Ld. trial court has passed the impugned order dt. 14.12.2020 without considering the fact that the repondent no. 1 had sought only prohibitory relief and not mandatory relief in interim applicatin which relief had been erroneously granted by the court.
8. It is submitted that the order passed by Ld. trial court suffers from infirmity as well as the same has caused grave injustice to the appellants including the minor children. It is submitted that Ld. trial court has failed to appreciate that the Hon'ble Supreme court of India as well as Hon'ble High courts have held in plethora of judgments that court cannot travel beyond the pleadings to grant relief which has not been prayed by the parties. It is submitted that impugned order passed by Ld. trial court suffers from infirmity in as much as there is no occasion or reason for the Court to pass the impugned order by surpassing the settled procedures of Civil law.
9. It is submitted that Ld. trial court has failed to MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 3 of 29 appreciate the fact that the respondent no. 1 & respondent no. 2 had been persistently pressurizing & threatening the appellants on many counts and had openly stated that they shall keep on filing one after another false and frivolous cases against the appellants so as to compel her to budge to their illegal demands.
10. It is submitted that respondent no. 1 and 2 have filed the main suit in collusion and connivance with each other to oust the appellants from the first floor premises in question and the said suit was filed at the behest of respondent no. 2, who had understandably supported the false case of the respondent no. 1.
11. It stated that no amount for subsistence / maintenance etc had been paid by either of the parties even though heavey reliance had been placed by the respondent no. 1 on certain documents whereby it was undertaken to do so. It is submitted that the appellants are even as on date residing on the first floor of the property in question, the same being the matrimonial home of the appellant no. 1 in which she had been having unhindered and continous stay ever since the marriage. It is argued that as on date when the suit was filed by the respondent no. 1 the appellants were admittedly in possession of one room with common use of kitchen and other facilities on the said floor.
12. It is argued that the appellant no. 1 had been suffering from early osteoporosis / arthritis for which she is undergoing orthopedic treatment and due to such medical condition she had been advised not to climb stairs. Furthermore, the appellant no. 1 is also having stiffness in the neck due to which she has tendency MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 4 of 29 of vomiting and vertigo.
13. It is further argued that Ld. Trial court has failed to appreciate that the respondent no. 1 in collusion and connivance with his son / respondent no. 2 had deliberately filed the suit containing malicious and defamatory allegations against the appellant no. 1 in order to brand her as unchaste and malign her reputation in the society and created bias in the minds of the court.
14. It is argued that Ld. Trial court has failed to appreciate that the kitchen on the first floor and the right to use, occupy and possess one room on the first floor of the property in question had remained unhindered and there had been no exclusivity of respondent no. 1 or anyone else.
15. It is argued that respondent was not entitled to any relief claimed by him and was particularly not entitled to any relief of interim injunction against the appellants, as claimed by him in his prayer clause, rather the entire suit as well as application being false, frivolous is liable to be dismissed.
16. It is further argued that due to persistent demands, illegal acts of torture and harassment that the appellant no. 1 was compelled out but her goods, articles and belongings as also possession had remained in the property in question, more so with respect to one room in first floor wherein certain clothes / goods have always remained. Moreover neither party had ever claimed any exclusive right to use, possess and occupy any of the floors, be it 1st or 3rd and the same had been accessible and for use and possession for each and every family members including MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 5 of 29 appellants and respondents.
17. It is further submitted that there had been absolutely no question of any forcible possession as the appellants had ever since been in continuous and uninterrupted lawful use, occupation and possession of one room on the first floor of the property in question with kitchen and other common facilities.
18. It is further argued that appellants no. 1 to 3 had categorically stated about the continuous and uninterrupted lawful use, occupation and possession of one room on the first floor of the property in question with kitchen and other common facilities and the said fact had never been denied by the respondent no. 1, who had opted not to file any replication to the written statement and insisted upon the disposal of his interim application on the basis of pleadings on record.
19. It is argued that Ld. Trial court had been in a great hurry to pass the order and get the same implemented by entertaining application under Order XXXIX rule 2A CPC of the respondent no. 1 on 15.12.2020 and fixing the hearing on the same for 18.12.2020, even through the appellants were not aware about the orders and it was only after email from the counsel of respondent no. 1, they came to know about the order. It is argued that the appellants have got a prima facie case in their favour and balance of convenience also lies in favour of the appellants and against the respondent no. 1 as per the pleadings of the case and documents of the appellants including ID proofs. It is submitted that the impugned orders have far reaching effects and shall cause MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 6 of 29 great heardship and prejudice to the appellants who have been in uninterrupted use and possession of one room with common use of kitchen and other facilities and because of the impugned order the appellants shall suffer irrepairable loss and injury which cannot be compensated in monetary terms. It is further argued by Ld. Counsel for appellant that court cannot grant relief to the respondent no. 1 in illegal and arbitrary manner.
20. Ld. Counsel for appellant has relied upon the judgment of Appex court in Om Prakash & Ors. v. Ram Kumar & Ors. AIR 1991 Supreme Court 409 wherein it has been held that ".... the rule appears to be well established that the plaintiff cannot be given any relief contrary to his case on the admission of the defendant if it is going to cause prejudice and unjustice to the latter...."
21. Ld. Counsel for appellant further relied upon the judgment in Fertilizer Corporation of India Ltd. vs. Sarat Chandra Rath 1996 SCALE (6) 154: The relevant paragraphs are reproduced as under: "....there is also considerable force in the contention of Sh. V.R. Reddy, Ld. Addl.
Solicitor General, appearing for the appellants, that the Hon'ble High Court ought not have granted relief to the respondents which they have not even prayed for in as much as relief prayed for MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 7 of 29 in the writ petition was only with regard to adjustment of the personal pay against the incremental benefits. But as the case has been argued at length on the points decided by the Hon'ble High Court, we need not advert further on this aspect.
From the aforesaid discussions, it follows that para no. 5.3 of the office memorandum dt. 13.04.1991 which contained principle on the basis of which pay of the respondent was fixed in the lowest scale of the officers grade, is not invalid and the Hon'ble High Court fail in error in striking it down..."
22. Ld. Counsel for appellant has relied upon the judgment of Hon'ble Supreme Court in Dr. Shehla Burnay & Ors. vs. Syeed Ali Mausa Raza & Ors. in Civil Appeal No. 6409/2002 Relevant paragraphs of this judgment are as under: "....In Sheikh Abdul Kyum and Others v.
Mulla Alibhai and Others (AIR 1963 SC
309) it has been held by this court that it does not lie within the jurisdiction of a court to grant relief against defendant MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 8 of 29 against whom no relief have been claimed.
....."
"....Same propositions have been reiterated recently by a judgment of this court in Scotts Engineering, Bangalore v. Rajesh P. Surana and Others [ (2008 4 SCC 256]. In paragraph 10 at page 258 of the report this court found that even after the appellant was arrayed as defendant 6, the plaintiff did not care to amend the plaint except making the appellant as defendant
6. No relief was claimed against defendant
6. If we follow the said principle in the facts of this case we have to hold that no relief having been claimed against defendant 2, who is the predecessorintitle of the present appellant, no relief can be granted against the present appellant...."
"....In our view this point is sufficient to hold that the judgment of the Hon'ble High Court is not sustainable in law.
Apart from this, this court finds that the appellants had been in peaceful possessoin of the disputed property from July 1963 and their predecessorin interest was in possession of the same MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 9 of 29 property from 1950 till the property was transferred by her to Lateef Hassan Burney, predecessorintitle of the appellant. After such transfer the construction started on the property and the appellants have been residing there since 1964 and the suit came to be filed only in 1975. Even in that suit after impleading the original defendant no. 2, no relief has been claimed against him.
In view of the aforesaid admitted factual position and the legal questions discussed above, this court cannot affirm the views taken by the High court. The judgment of the High Court is set aside and that of the Trial court is affirmed. The appeal is allowed. There will be no order as to costs...."
23. Ld. Counsel for the appellant has further relied upon the judgment passed by Hon'ble Apex Court in Civil Appeal Nos. 579899 of 2008 titled Bachhaj Nahar v. Nilima Mandal & Anr., Para 17 of the judgment is reproduced as under:
".....17. In the absence of a claim by plaintiffs based on an easementary right, the first defendant did not have an MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 10 of 29 opportunity to demonstrate that the plaintiffs had no easementary right. In the absence of pleadings and an opporunity to the first defendand to deny such claim, the High Court could not have converted a suit for title into a suit for enforcement of an easementary right. The first appellate court haqd recorded a finding of fact that plaintiffs had not made out title. The High Court in second appeal did not disturb the said finding. As no question of law arose for consideration, the High Court ought to have dismissedthe second appeal. Even if the High Court felt that a case for easement was made out, at best liberty could have been reserved to the plaintiffs to file a separate suit for easment. But the High Court could not, in a second appeal, while rejecting the plea of the plaintiffs that they were owners of the suit property, grant the relief of injunction in regard to an easementary right by assuming that they had an easementary right to use the schedule property as a passage...."
24. Ld. Counsel for the appellant has further relied upon the judgement titled as Samir Narain Bhojwani vs. M/s Aurora MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 11 of 29 Properties and Investments and Anr., of Hon'ble Apex Court in Civil Appeal No. 7079 of 2018 and Para 15 of the judgment is reproducued as under:
".....15. The single Judge thus directed the appellant, by a mandatory order, to hand over keys and possession of the said 8 flats to respondentNo. 1 alongwith 16 parking spaces, recording that he had moulded the reliefs originally sought by respondent No. 1 in the changed circumstances of the case and in order to shorten the litigation and do complete justice....."
The para 24 of the judgment is reproduced as under: "....that apart, the learned Singhle Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniable a mandatory order at an interlocutory stage. There is MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 12 of 29 marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This court in Dorab Cawasji Warden Versus Coomi Sorab Warden and Others has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paragraphs 16 and 17, after analysing the legal precedents on the point as notices in paragraphs 1115, the court went on to observe as follows:
"...16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last noncontested status which preceded the pending controvery until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 13 of 29 since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
17. being essentially an equitable relief the grant or refusl of an interlocutory mandatory injunction shall ultimately rest in the sound judicial MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 14 of 29 discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
Para 27 of the judgment is reproduced as under: "....In the actual scenario in which mandatory order has been passed against the appellant, in our opinion, is in excess of jurisdiction. Such a drastic order at an interlocutory stage ought to be eschewed. It cannot be countenanced...."
25. On the other hand, Ld. Counsel for respondent no. 1 has submitted that relief granted vide order dt. 14.12.2020 is ancillary to primary relief and the courts are empowered to mould the relief prayed for under Order VII rule 7 CPC. It is submitted that prayer of respondent was to restrain appellants from entering in their peaceful possession of 1st Floor. It is further submitted that MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 15 of 29 courts cannot pass ineffective injunctions and thus directed appellants to vacate only to give complete meaning to the relief prayed by respondent.
26. It is further submitted that appellant has admitted that the trial court granted a relief whereby defendant no. 24 are restrained from interfering in peaceful possession of plaintiff. It is submitted that mandatory injunction granted to give meaning to relief prayed by respondent. It is submitted that prohibitory injunction was never prayed. Respondents prayed for restraining appellant from interfering in their possession. Ld. Trial court granted mandatory injunction to give effect to this prayer.
27. It is further submitted by Ld. Counsel for respondent no. 1 that relief cannot be denied on the ground of incorrect articulation and relief prayed for, can also be implied from averments made in pleadings. It is submitted that merely because the prayer clause of application under Order XXXIX rule 1 and 2 CPC filed by respondent no. 1 is defective, cannot be a ground to deny a relief which is clearly discernible from the pleadings of respondent no. 1. Even if the relief of mandatory injunction is not specifically worded in the prayer clause, it cannot be the sole ground to deny such relief.
28. It is further submitted that respondent no. 1 has pleaded that appellants are trespassing in his exclusive property and are therefore interfering with his exclusive possession making them liable to be evicted therefrom. Therefore, it is clearly discernible from the averments of respondent no. 1 in the plaint MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 16 of 29 that the actual relief prayed by respondent no. 1 is restoration of complete possession of First Floor of suit property which can only be effected by way of a mandatory injunction against the appellants.
29. It is further submitted by Ld. Counsel for respondent that relief granted vide order dt. 14.12.2020, even if not specifically prayed for, could have been granted for it because no prejudice would come to appellants. It is submitted that it is settled that under Order VII Rule 7, courts can grant a relief not specifically prayed for it no prejudice is caused to the other party. It is submitted that in the present case appellant no. 1 is the owner / occupier of third floor of the suit property, so much, she has claimed the third floor as her materimonial home in Domestic Violence Petition filed by her against respondent no. 1 and 2. It is submitted that furthermore, FIR dt. 01.08.2020 by respondent no. 1 shows 3rd floor as address of the appellant.
30. It is further submitted that courts ought not reject the claim on hypertechnical grounds and ingredients of interim injunction satisfied by respondent. It is submitted that respondent is exclusive owner of 1st floor. Appellants have equal and alternative accommodation in the same property, just on a different floor i.e. 3Rd floor which is fully habitable and also has its independent, fully functioning kitchen. No residence order in favour of appellants w.r.t. 1st floor has been passed. Appellants have admitted 3rd floor as matrimonial home / residence in DV petition and in FIR dt. 01.08.2020. Respondent is on bail in false MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 17 of 29 POCSO case filed by appellants and thus, residing together poses constant threat of another false case and respondent is a senior citizen and is being harassed in his own exclusive property.
31. It is further submitted that appellant is already in possession of equal alternate accommodation in the same property with all amenities. Ld. Trial court directed mere shifting of floor and not actual property, hence, no incovenience to the appellant. It is further submitted that respondent, a senior citizen, is under continuous threat of another false case against him. His reputation and liberty is at risk. Respondent is restricted in a single room in his own exclusive property and there is a continuous breach of his right to enjoy his property.
32. Ld. Counsel for the respondent has relied upon the judgement in UP State Brassware Corporation Ltd v. Uday Narain Pandey, (22006) 1 SCC 479. Para 37 and 38 of the judgement is reproduced as under:
"37 It is one thing to say that the court interprets a provision of a statute and lays down a law, but it is another thing to say that the courts although exercise plenary jurisdiction will have no discretionary powr at all in the matter of moulting the relief or otherwise give any such relief, as the parties may be found to be entitled to inequity and justice. If that be so, the courts's function as court of justice MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 18 of 29 would be totally impaired. Discretionary jurisdiction in a court need not always be conferred by a statute.
38 Order 7 Rule 7 of Code of Civil Procedure confers power upon the court to mould relief in a given situation. Thge provisions of the Code of Civil Procedure are applicable to the proceedings under the Indisturial Disputes Act. Section 11A of the Industrial Disputes Act empoweres the Labour Court, the Tribunal and the National Tribunal to give appropriate relief in case of discharge or dismissal of workmen."
33. Ld. Counsel for the respondent has also relied upon the judgement in Raj Engcon Projects (India) Ltd v. Sahara India Finance Corpn. Ltd, 2007 SCC Online Cal 311. Para 18 of the judgment is reproduced as under:
"...18 The law is equally settled that although a particular relief has not been prayed for by a party in an application, the court can based on materials on record, mould the relief and grant appropriate respite to the party, which the court thinks MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 19 of 29 fit. At this juncture, it will not be out of place to refer to the following observations of the Supreme Court in the case of UP State Brassware 40 of the judgement:
It is one thing to say that the court interprets a provision of a statute and lays down a law, but it is another thing to say that the courts although exercise plenary jurisdiction will have no discretionary powr at all in the matter of moulting the relief or otherwise give any such relief, as the parties may be found to be entitled to inequity and justice. If that be so, the courts's function as court of justice would be totally impaired. Discretionary jurisdiction in a court need not always be conferred by a statute".
34. Ld. Counsel for the defendant has also relied upon the judgement Magna Publishers Co. Ltd v. Shilpa S. Shetty, (2007) 12 SCC 792. Para 5 to 10 of the judgment is reproduced as under:
"5 Before the Division Bench, the stand was that the interim jurisdiction granted was beyound the prayer made in the notice of motion.MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 20 of 29
The High Court noted that in notice of motion, the prayer was in the following terms:
That pending the hearing and final disposal of the suit, this Hon'ble Courtbe pleased to issue an order and injunction rstraining the defendants from in any way or manner carrying out defamatory allegations and imputations in future against the plaintiff.
6 The Division Bench was of the
further view that the learned Single
Judge had not granted interim
protectionbeyond what was prayed
andwas covered by the prayer.
7 The other stand before the
DivisionBenchwas that moment
justification is pleaded, there can be no interim protection. This plea was aloso rejected stating that a person cannot be defamed by allowing such rejected stating that a person cannot bedefamed by allowing such publications in future.
Justification shall be required tobe established at the time of hearing of the MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 21 of 29 suit by leading evidence.
8 There were certain other stands relating to lack of pleadings about the reputation and character. The Division Bench found that also to be without substance. The appeal was accordingly dismissed.
9 Ld. Counsel for the appellant reiterated the stand takenbefore the Division Bench. Mr. Bhattacharya, Learned counsel for the respondentsupported the order.
10. We find that the matter relates to an interim ordeer and while granting leave, the prayer for grant of interim relief was refused. In other words, interim order passed by the learned Single Judge as upheld by the Division Bench continues to be operative.
Therefore, without expressing any opinion on the merits of the case, we think it proper to dispose of the appeal without intereference. We, however, request the High Court to explore the possibility of early disposalof suit No. 36 of 2011."
MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 22 of 2935. Ld. Counsel for the respondent has also relied upon the judgement Zahira HabibullahSheikh v. State of Gujarat (2004) 5 SCC 353. Para 9 of the judgment is reproduced as under:
"9 Firstly, the plea that there was no "specific prayer" for transfer outside the State is totally false and misleading. Every prayer need not always be by a separate application, unless such prayer is the only relief sought or that the proceedings filed had no other claim by way of relief. ThIf the basis of the grievance has been sufficiently disclosed openly and the relief sought is one among others specified as incidental or ancillary to the mainrelief and the court had the power to grant it, the fact that thre is no formal or specific application which, if at all, may be relevant for purposesof determining the court fee to be paid obnly, does not in any way undermine the powers of the court to accord relief, so long as the request in this regard has been indisputably made and was also MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 23 of 29 respondedn to by the parties before the court. In fact, from p. 123 onwards of the paper book in Crl. Appeals Nos. 446 49 of 2004, severalgrounds to justify the retrial outside Gujarat have been indicated. The submissions made in this regard are found recorded in the judgement itself and to claim to the contrary is sheet traversty of trugh, mean as well as meaningless. Secondly, the plea that issue of transfer was neither raised nor argued by all parties is of no consequence. It is not necessary that all parties should raise or argue it and no one was restrained from arguing it. So far as the question of argument is concerned, it is really shocking that false statement has been made that the point was not permitted to be argued ( at P. 5, para B) by a person whose presence and credibility to make such statement itself has not been substantiated In the said paragraph it has been ealier stated that prayer for transfer outside the State was "opposed by the State". If the former plea does not amount to false MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 24 of 29 statement, probably nothing would. The averment that the point was "not permitted to be argued", shows the extent of falsehood to which the applicant State has gone and demonstrates the deterioration and falling standars in preparation and filing of papers in Court. Though we could have proceededagaisnt the person on more thanonecount, we only pity him for offering himself to be a scapegoat apparenbtly for reasons best knownt to him, which at any rate could not be genuine or ethical whatsoever. The stand that there was no opportunity granted to the State is furtehr falsifided in view of what is stated in para 25 of the judgement (P. 388 of SCALE; P. 180, para 23 of SCC). Even that apart, opportunity before courts are to be sought and availed of and there is no need to invite them to do so and grievance, if any, could be made in this regard only when sought for but rejected by the Court."MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 25 of 29
36. Ld. Counsel for the respondent has also relied upon the judgement Rajiv Tandon v. Rashmi Tandon 2019 SCC Online Del7336. Para 60 of the judgment reads as under:
"...Accordingly, a decree of permanent injunction is passedin favour of the plaintiffs and againzst the defendant restraining the defendant, her agents, servants, etc from entering the suit property or occupying the suit property or causing any nuisance or interference in any manner with the possession of the plaintiffs. A decree of mandatory injunction is also passedin favour of the plaintiffsand against the defendant directing the defendant, her agents, associates, etc to remove any article from the suit property i.e. one room on the ground of the suit property as shown in thesite plan. No costs..."
37. Heard. Considered. Record perused carefully.
38. There are certain undisputed facts in this case that respondent is the absolute owner of the suit property in question. In order to bring harmony among his son and daughter in law, he has executed a gift deed in favour of the appellant pertaining to the third floor of the suit property. During the hearing, parties have MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 26 of 29 submitted pertaining to the settlement in this case wherein the appellant has submitted and is recorded as under vide order dt. 07.01.2021: "...It is submitted by Ms. Shilpi Kapoor that if the house at third floor be furnishing including bathroom and kitchen and the payment of Rs. 31,000/ per month towards the household and personal expenses alongwith tution and school fees of both her daughters be paid, then, she would withdraw the present appeal and she would shift on the third floor as and when it be furnished. Respondent no. 1 is ready to comply all these conditions. Husband of Ms. Shilpi Arora is not present today.
No, to come up for recording the statements of all the parties on 13.01.2021..."
39. On 13.01.2021, the appellant submitted before the court that her matter be adjudicated upon the merit and she is not bound by the submissions made on 07.01.2021.
40. I have gone through the impugned order passed by Ld. Civil court. The main disputed fact in this case is that as per the case of the appellant, she is residing at the first floor of the suit property since the date of her marriage without any disturbance and in a peaceful manner and her possession is unintrrupted. On the other hand, the case of the respondent is that she has left the premises at first floor on a number of occasions and she is not continuously residing at the premises in question. It is also the case of the respondent that she on various occasions has mentioned the third floor as her matrimonial home and the first MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 27 of 29 floor cannot be her matrimonial home.
41. I have gone through the order of Ld. Civil Judge and it appears that she has given her finding keeping in view that the appellant is not residing in the suit property in question and therefore, appellant was directed to vacate the premises immediately and even on the very next date contempt petition was also entertained by the Ld. Civil judge. It remains the disputed fact whether the appellants are residing at the suit property at first floor continuously since the day of her marriage till date.
42. In these circumstances, I am of this considered opinion that let a Local Commissioner be appointed by the Ld.Trial court to ascertain the facts of the continuous living of the appellant in the suit property and the court may also consider various documents ascertaining / denying these facts and thereafter, to pass fresh orders in the application u/O 39 rule 1 and 2 CPC and for these reasons, the impugned order dt. 14.12.2020 is hereby set aside with directions to the Ld. Trial court to pass fresh orders after ascertaining the fact as to where the appellant is continuously residing after her marriage. While disposing the application u/O 39 Rule 1 and 2 CPC, Ld. Civil judge shall not be influenced by this order in any manner. The appeal is allowed to this effect and disposed off accordingly. Copy of this order be sent to Ld. Trial court with a request to look afresh the application of the plaintiff u/o 39 Rule 1 and 2 CPC and to proceed further as per law. Trial court record be sent back immediately.
Parties are directed to appear before Ld. Trial court on MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 28 of 29 11.02.2021.
43. Appeal file be consigned to Record Rooms after due compliance.
Announced in the open Court (Neelam Singh) on 19.01.2021 Addl. District Judge 02 (SouthEast) Saket Courts, New Delhi MCA No.10/20 Shilpi Kapoor & Ors. v. Rajesh Kapoor & Anr. Page 29 of 29