Calcutta High Court (Appellete Side)
Alingan Enclave Private Ltd. & Another vs Smt. Gitika Ghosh & Others on 13 April, 2017
Author: Nishita Mhatre
Bench: Nishita Mhatre
1
03 13.04.2017
rpan Ct. No.01
MAT No. 1955 of 2016
with
CAN No. 11191 of 2016 [Stay]
Alingan Enclave Private Ltd. & Another
Vs.
Smt. Gitika Ghosh & Others
Mr. Partha Sarathi Sengupta,
Mr. Somopriya Chowdhury,
Mr. Avishek Bhandari
... for the Appellants.
Mr. Ranjan Kali,
Mr. Saptarshi Basu,
Mr. Diganta Das
... for Respondent No.1.
Mr. Shyamal Sarkar, Mr. Shankar Sen Sarkar, Mr. Saptarshi Mukherjee, Mr. Uttam Sharma ... for Respondent No.2.
Mr. Jaharlal De, Mr. Shyamal Kumar Dey .... for the State.
The Appeal is directed against the decision of the learned Single Judge in writ petition no.13803(W) of 2016.
The writ petition was filed by Respondent No.1 contending that her complaints with respect to persons interfering with the ingress and egress to her property and about the safety of her life and her right to stay in possession of certain premises were being jeopardised because of the inaction on the part of the police to protect these rights.
2
The litigation is a fall out of a matrimonial dispute between Respondent No.1 and Respondent No.2. Their marriage failed and ended in a divorce by the judgment and decree dated 5th August, 2016 in FA 187 of 2012.
There is no dispute that Respondent No.1 continued to live in the matrimonial home during the pendency of the matrimonial litigation. This was on the basis of certain orders passed by the Trial Court and by this Court. After the dismissal of the matrimonial suit, in the appeal filed by Respondent No.2, an order was passed on 22nd June, 2012 modifying earlier order passed by this Court on 14th December, 2007. By this order passed in June, 2012 the Respondent no.2 was directed to provide a reasonable accommodation for his wife / Respondent No.1 in the area of her residence during the pendency of the appeal. The costs and expenses for the same would be borne by the husband. Such alternate accommodation offered by the husband was directed to be selected by the wife and with further direction that she should shift from her present accommodation in the petrol pump premises.
This order continued during the pendency of the appeal, which as mentioned earlier, was disposed of in August, 2016.
A Special Leave Petition (SLP) has been filed by Respondent no.1 before the Supreme Court challenging the decree of divorce. That SLP is pending before the Court.
It appears that while these proceedings were pending before this Court, the Respondent No.1 filed C.R. Case No.860 of 2009 under the Protection of Women from Domestic Violence Act, 2005 and obtained an ex parte order on 21st April, 2010 restraining Respondent No.2 from dispossessing her or disturbing her peaceful possession.
3
It appears that the suit property was sold to the Appellants by Respondent No.2 in the year 2013. A Title Suit No.405 of 2013 was filed by the Appellants to evict Respondent no.1. That suit has been decreed. The Appellants have also filed Title E.C. No.9 of 2014 which is pending before the executing court.
It is while these proceedings were pending that Respondent No.1 approached this Court contending that she was in danger of losing her possession of the suit property and her safety was at stake.
The learned Single Judge, while disposing of the writ petition, observed that since Respondent no.1 was in occupation of the suit property, she could not be evicted from there, except in accordance with law.
The contention of the Appellants that Respondent no.1 had suppressed material facts which would disentitle her to the relief was considered by the learned judge and he observed that "Suppression, if at all, is not of any material fact that would disentitle her to limited relief."
Mr. Sengupta the learned Counsel appearing for the Appellants submits that when the learned Judge had observed that there was suppression of facts on the part of Respondent no.1, she did not deserve any relief as writ jurisdiction can be invoked only at the instance of a person who approaches the Court with clean hands. He submits that the order of 22nd June, 2012 was not disclosed by Respondent No.1 and, therefore, she was not entitled to any relief in the writ petition. According to the learned Counsel when the Division Bench had directed that she should shift from her present accommodation i.e., the suit property to the alternate accommodation provided by her 4 husband / Respondent No.2, Respondent No.1 cannot continue to live in the suit premises.
Mr. Sengupta has relied on the judgment of a learned Single Judge of this Court in the case of Prabir Kumar Ghosh & Others Vs. Jharna Ghosh & Another in CRR 1301 of 2015, reported in (2015) 4 Cal LT 664 to contend that even if there is an order in her favour under the Domestic Violence Act, it is but a temporary order passed ex parte and can have no effect after the decree of divorce.
Mr. Kali the learned Counsel appearing for Respondent No.1 has contended that in view of the order passed by the Judicial Magistrate, 6th Court, Paschim Medinipur on 21st April, 2010 the possession of Respondent No.1 cannot be disturbed nor can she be evicted from the premises. He has relied on the judgments of the Supreme Court in Inderjit Singh Grewal Vs. State of Punjab and Another, reported in (2011) 12 SCC 588 and Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori and another, reported in 2014 (10) SCC 736 in support of his submissions.
The controversy before us is only whether Respondent No.1 was entitled to relief to the extent that her occupation of the suit premises should not be disturbed without due process of law. We are not required to ascertain any other issues nor whether the judgments cited at the Bar are applicable in the present case.
After perusing the impugned order we do not find any reason to interfere with the same. The observations made by the learned Judge regarding suppression of facts must be read to be confined only in order to decide whether relief regarding inaction on the part of the police should be granted to Respondent No.1 . They cannot be read to 5 mean that Respondent No.1 is entitled to continue in the suit premises as that aspect will have to be considered by the executing court.
In view thereof, the appeal is disposed of by observing that the executing court will decide the execution application uninfluenced by any remarks made by the learned Judge in respect of suppression of facts. We agree with the observation of the learned Judge that Respondent No.1 cannot be evicted from the suit premises without following due process of law and her peaceful possession cannot be disturbed either by the police or any other person while the execution case is pending. It is but natural that the executing court will consider the arguments and orders passed by this Court and by other Courts from time to time in their true perspective.
The appeal is disposed of.
In view of the disposal of the appeal, the application for stay, has become infructuous and the same is also disposed of.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities as expeditiously as possible.
(Nishita Mhatre, A.C.J.) (Tapabrata Chakraborty, J.)