Delhi District Court
Sh. Prem Nath Sharma vs Ms. Chahna Khattar on 17 February, 2023
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IN THE COURT OF CIVIL JUDGE-01: SOUTH WEST
DISTRICT: DWARKA COURT: NEW DELHI
CS SCJ No. 192/23
Sh. Prem Nath Sharma ......... Plaintiff
Vs.
Ms. Chahna Khattar ........ Defendant
17.02.2023
Order on maintainability of plaint/suit: -
1. Plaintiff has instituted present suit against the defendant for
permanent injunction for restraining her from entering into the suit
property without permission of plaintiff.
2. It is averred that defendant is absolute owner and in
possession of "suit property" i.e property bearing no. B-22,
Vishwas Park, Uttam Nagar, New Delhi-110059 in which three
room set is in the possession of the son namely Sh. Satish Sharma
and his wife Smt. Usha Sharma and their son Sh. Aman Sharma
and the said three room set is in the occupation of Sh. Satish
Sharma, which is a part of property.
3. It is stated that defendant is granddaughter-in-law of the
plaintiff. After marriage pick up quarrel on petty issues with her
husband and would snowball the fight into a big issue and start
should loudly on her husband namely Sh. Aman Sharma. The
behaviour was tolerated by the family members but defendant did
not stop. It is stated she has vacated the premises of suit property
but on receiving the summon issued by this court, defendant has
forcibly entered into suit property and is not vacated the same.
Digitally signed
4. Ld. Counsel for defendant has raised objections to plaint ASHISH byKUMAR ASHISH
MEENA
KUMAR Date:
2023.02.17
CS No. 946/22 Jagjeet Singh & Ors Vs. Suresh Kumar & Ors. MEENA 15:19:59
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filed by the plaintiff. It is submitted that this Court is barred by
Section 7 of Family Court Act, 1984 to try the present suit.
5. Ld. Counsel for plaintiff submitted that this Court has
jurisdiction to try present suit. In support his argument, Ld.
Counsel has also placed his reliance on Madalsa Sood vs
Maunicka Makkar & Anr. 2021 LawSuit (Del) 2113 and Ravneet
Kaur vs Prithpal Singh Dhingra 2022 LawSuit (Del) 453.
6. Heard both the parties and perused plaint of plaintiffs.
7. On perusal of case file, it is admitted that defendant is grand-
daughter-in-law of plaintiff. Plaintiff has preferred this suit for
seeking injunction against defendant thereby seeking directions of
restraining defendant from interfering into the peaceful possession
of the suit property. Defendant has submited that this Court has no
jurisdiction due express bar provided in Section 7 (1) (d) of Family
Court Act, 1984, It is pertinent lay out Section 7 (1) (d) of the Act,
which states that:
"7. Jurisdiction. (1) Subject to the other provisions of this
Act, a Family Court shall--
(a) have and exercise all the jurisdiction exercisable by any
district court or any subordinate civil court under any law
for the time being in force in respect of suits and
proceedings of the nature referred to in the Explanation;
and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or, as the
case may be, such subordinate civil court for the area to
which the jurisdiction of the Family Court extends.
Explanation.--The suits and proceedings referred to in this
sub-section are suits and proceedings of the following
nature, namely:--
(a) a suit or proceeding between the parties to a marriage
for a decree of nullity of marriage (declaring the marriage
to be null and void or, as the case may be, annulling the ASHISH Digitally signed
by ASHISH
Jagjeet Singh & Ors Vs. Suresh Kumar & Ors. KUMAR Date:
KUMAR MEENA
CS No. 946/22
2023.02.17
MEENA 15:20:08 +05'30'
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marriage) or restitution of conjugal rights or judicial
separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity
of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage
with respect to the property of the parties or of either of
them;
(d) a suit or proceeding for an order or injunction in
circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the
legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of
the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family
Court shall also have and exercise--
(a) the jurisdiction exercisable by a Magistrate of the first
class under Chapter IX (relating to order for maintenance
of wife, children and parents) of the Code of Criminal
Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any
other enactment.
8. Present case revolves around Section 7 (1) (d) of the Act. It
is states that a suit or proceeding filed for relief of injunction in
circumstances arising out of a marital relationship would lie
exclusively before concerned Ld. Family Court. In this regard,
Hon'ble High Court of Delhi in Avneet Kaur vs Sadhu Singh &
Anr. (Supra) has dealt with similar case. Hon'ble High Court of
Delhi has held that:
"21. Unquestionably, round Clause (d) of explanation to
Section 7 (1) of the Family Courts Act. A mere glance at the
provision indicates that it has been worded in careful and
cautious terms. an order or injunction in circumstances
arising out of a marital relationship would lie exclusively
before the Family Court.
CS No. 946/22 Jagjeet Singh & Ors Vs. Suresh Kumar & Ors. ASHISH Digitally signed
by ASHISH
KUMAR KUMAR MEENA
Date: 2023.02.17
MEENA 15:20:17 +05'30'
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22. What has to be seen is whether the circumstances in
which the order or injunction is sought in the present case
arise out of a marital relationship. The test is not whether the
cause of action, forming the basis of the prayer injunction
arises out of a marital relationship or whether the marital
relationship is the reason for the grievance ventilated by the
plaintiff. All that has to be seen are the circumstances in
which the injunction is sought. Once the Court identifies the
circumstances, if those circumstances arise out of a marital
relationship, Clause (d) of the Explanation to Section 7(1) of
the Family Court Act would ipso facto be attracted.
23. Explanation (d) in Section 7(1) of the Family Courts Act
does not, either expressly or by necessary implication,
require the parties to the lis to be husband and wife. Clearly,
in so opining, the learned SCJ has effectively re-written the
statutory provision. There is nothing in Clause (d) of the
explanation to Section 7 (1) of the Family Courts Act in which
indicates that the clause would apply only where the
litigation is between husband and wife. For clause to apply,
all that is required is that (i) there is a marital relationship,
(ii) the marital relationship has resulted in a certain set of
circumstances and (iii) the order or injunction which is
sought in the suit is sought in those circumstances.
24. Applying these tests to the case at hand, if one examines
the plaint, and the case set up by the respondents in the plaint,
it is clear that the circumstances in which injunction has been sought by them have arisen out of the marital relationship between the petitioner and Pardip. Had the petitioner not married Pardip, she would never had been the daughter-in-
ASHISH Digitally by ASHISH signed CS No. 946/22 Jagjeet Singh & Ors Vs. Suresh Kumar & Ors. KUMAR KUMAR MEENA Date: 2023.02.17 MEENA 15:20:25 +05'30' Page 5 of 7 law of the respondents, she would never had come to stay in the residence of the respondents, the respondents would never had given her any permissive licence to reside therein, and the entire chiaroscuro of events, which have been emphasised in the plaint by the plaintiffs, to highlight the alleged ignominy and persecution to which petitioner allegedly subjected the respondents, would not be in existence. The fact that the petitioner married the respondents' son was the foundation of the relationship that emerged between the petitioner and the respondents, and it was in the circumstances which arouse out of that relationship that the entire dispute between the respondents and the petitioner, as per the allegations contained in the plaint, filed by the respondents, arose.
25. The word "arising out of" have been held, by the Supreme Court in several decision, to be word of wide amplitude. One may refer, in this context, to the judgment of the Supreme Court in Renusagar Power Company Ltd. Vs General Electric Co. 1984 4 SCC 679, Dhanrajmal Govindram vs Shamji Kalidas AIR 1961 SC 1285, and Doypack Systems Ltd. v. Union of India. 1988 2 SCC 299 In State of Orissa v. State of Andhra Pradesh 2006 9 SCC 591, the Supreme Court held that the expression "arising out of" is wider in scope that the expression "arising under" but also matters "connected with" the instrument under consideration in that case.
26. Applying the understanding of the expression "arising out of" as contained in the afore cited decisions of the Supreme Court, it is clear that the circumstances in which the allegedly ASHISH Digitally by ASHISH signed CS No. 946/22 Jagjeet Singh & Ors Vs. Suresh Kumar & Ors. KUMAR KUMAR MEENA Date: 2023.02.17 MEENA 15:20:33 +05'30' Page 6 of 7 offending acts of the petitioner, against the respondents, from which the entire dispute in the suit filed by the respondents against the petitioner germinated, arose out of the marital relationship between the petitioner and the respondent.
27. I deem it necessary to emphasize, in this context, that Clause (d) of the explanation to Section 7 (1) of the Family Courts Act does not envisage a causal relationship, i.e., a relationship of cause and effect, between the marital relationship and the circumstances in which injunction was sought. All that is required is that the circumstances in which injunction was sought arose out of the marital relationship. A holistic reading of the case set up by the respondents against the plaintiff in suit 12114/2016 clearly indicates that the circumstances in which injunction was sought by the respondent against the petitioner did arise out of the marital relationship between the petitioner and Pardip, the son of the respondents.
28. That being so, in my view, the case squarely falls within Clause (d) of the explanation to Section 7 (1) of the Family Court Act."
9. By applying the law laid down by Hon'ble High Court of Delhi, present Court is not a competent Court to try the present suit as it is barred by Section 7 (1) (d) of The Family Court Act, 1984. In present case plaintiff is also seeking simpliciter injunction against his grand-daughter-in-law. Dispute has arisen out marital relationship. Further, Ld. Counsel for plaintiff has relied on Madalsa Sood vs Maunicka Makkar & Anr. 2021 LawSuit (Del) 2113 and Ravneet Kaur vs Prithpal Singh Dhingra 2022 LawSuit (Del) 453. In these cases, the plaintiff had sought a relief of ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA CS No. 946/22 Jagjeet Singh & Ors Vs. Suresh Kumar & Ors. Date: 2023.02.17 MEENA 15:20:41 +05'30' Page 7 of 7 eviction but the same case law does not empower Civil Court to try the present suit.
10. Further, Order 7 Rule 11 (d) lays down that plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. From above discussion, it is clear that entire dispute in the suit is filled by the plaintiff against defendant, for injunction simpliciter, arose out of marital relationship between the plaintiff and defendant. Therefore, present Court is expressly barred by Section 7(1)(d) of The Family Court Act, 1984 to try present suit. In view of above discussion and the law emphasised, the present plaint is thus rejected under order 7 Rule 11 CPC and application is disposed of accordingly.
11. File be consigned to Record Room after compliance with due formalities.
ANNOUNCED IN THE OPEN COURT
ON 17.02.2023
Digitally signed by
ASHISH ASHISH KUMAR MEENA
KUMAR MEENA Date: 2023.02.17
15:20:48 +05'30'
(ASHISH KUMAR MEENA)
CIVIL JUDGE-01, SOUTH WEST,
DWARKA COURTS, NEW DELHI.
17.02.2023
CS No. 946/22 Jagjeet Singh & Ors Vs. Suresh Kumar & Ors.