Delhi District Court
Sunil Talwar & Ors vs State & Ors Ca No.54630/16 (97/16) on 2 February, 2019
Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16)
IN THE COURT OF SH. MANISH YADUVANSHI, ADDL.
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.A. No. 54630/16 (97/16)
IN THE MATTER OF:
1. Sunil Talwar,
S/o Late Sh Chander Bhan Talwar
2. Smt. Anita Talwar,
W/o Sh Sunil Talwar,
(Both R/o M69, 2nd Floor,
Kirti Nagar, New Delhi110015). ....... Appellants
Versus
1. State.
2. Smt. Tanvi Dhawan,
W/o Sh Saurabh Talwar,
D/o Sh V.K Dhawan,
R/o G31, 2nd Floor,
Naraina Vihar, New Delhi. ...... Respondents
Result: Petition Dismissed. Page 1 of 12
Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16)
Date of Institution : 29.11.2016
Date of arguments : 02.02.2019
Date of Judgment : 02.02.2019
JUDGMENT
1. This appeal by appellant no. 1 (Respondent No. 2) and appellant no. 2 (Respondent no. 3) who are fatherinlaw and motherinlaw respectively of the complainantrespondent, assails the order of ld. Trial Court dated 5.10.2016 by which they have been summoned on the respondent's application under Section 12 of the Protection of Women from Domestic Violence Act (herein after called as the D.V Act).
2. The additional respondent no. 1 (Husband) was summoned upon institution of application under Section 12 of the D.V Act on the first day of institution i.e. 26.2.2016 and order was also passed regarding summoning of other respondents post perusal of the Domestic Incident Report (DIR).
3. Respondent no. 4 (Sisterinlaw) was not summoned as she is Result: Petition Dismissed. Page 2 of 12 Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16) residing separately from complainantrespondent.
4. On the day of order impugned, the ld. Trial Court noted the following before summoning the appellants viz:
"DIR perused.
Respondents no. 2 & 3 be also summoned on filing of PF/RC as they lived in the shared household and were sharing domestic relationship with the complainant."
5. The appeal challenges the above part of the order stating that the DIR is very cryptic and summoning could not have been ordered on its basis.
6. TCR was called for. The Court has heard ld counsel for the parties and has perused the record carefully.
7. During the course of arguments, the attention of the arguing counsel was drawn to the fact that the appeal under Section 29 of the D.V Act challenges an order of summoning only which is not an order within the sweep of expression 'order' in Section 29 of the Act. Ld. Counsel for appellant then prayed that the appeal may be treated as a Criminal Revision Petition under Section 397 Cr.P.C.
Result: Petition Dismissed. Page 3 of 12Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16)
8. In Charu Chawla Vs R.K Anand & Anr. 2018 (3) LRC 483 Del., it is held that, "interlocutory orders which deal only with procedure and which did not affect the rights of a party will certainly not fall within the sweep of expression 'order' in Section 29 of the Act. It was held that order to be appealable, has to affect or have a material reflection on the rights of the parties. Thus, what is meant is that the revision petition can be brought in this Court against such orders passed under the D.V Act which do not affect or have a material reflection on the right of parties."
9. Further, the Appeal can be converted into a Revision Petition and viceversa in view of the following judgments on the issue:
In the judgment titled News Television India Ltd Vs Special Director of Enforcement passed by Hon'ble High Court of Delhi in Crl. A. No. 305/2007 on 6.5.2009, one of the plea was taken that the appeal was fit to be converted into a Revision to over come hurdle of limitation. The appeal was against the judgment of Appellate Authority and passed under FEMA, 1999. The Result: Petition Dismissed. Page 4 of 12 Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16) Hon'ble High Court of Delhi considered the plea as to whether the appeal by the appellant before First Appellate Authority which was admittedly barred by limitation could have been entertained by condoning the delay as prayed for or in the alternative to have converted the appeal in a revision.
Since the Hon'ble High Court of Delhi held that the limitation prescribed in FERA was no more applicable to the appeal of the appellant and which fact was not considered for condoning the delay by the Appellate Authority, the Hon'ble High Court of Delhi held that the order was unsustainable. The matter was remanded back to the Appellate Authority to consider the plea of limitation in the light of Section 19 of FEMA.
Consequently, no discussion was made regarding the conversion of appeal into revision but at the same time, the judgment of Hon'ble Madhya Pradesh High Court is referred to in case News Result: Petition Dismissed. Page 5 of 12 Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16) Television India Ltd (Supra) in case titled Om Prakash vs Dwarka Prasad AIR 2005 M.P 240. It was held therein that, "To meet the ends of justice, revision can be converted into appeal or appeal can be converted into revision while exercising the discretion and if the following norms are fulfilled, then normally order of conversion of revision into appeal or appeal into revision should be passed:
i) When revision is converted into second appeal, then before passing the order of conversion, it is to be considered whether substantial question of law arises in the said case, if no substantial question of law arises in the case, revision can not be converted into second appeal.
ii) Revision can be converted into appeal if same is filed within time and there is no impediment of limitation. Limitation must be construed from the date of filing of the revision petition or appeal. If the revision or appeal so filed was within Result: Petition Dismissed. Page 6 of 12 Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16) limitation, for conversion into appeal or revision, it is to be examined that the appeal or revision, as the case may be, so filed, on the date of institution was within the limitation and if so, said permission can be granted.
iii) There is no period of limitation for applying such conversion, but while exercising the powers of conversion, the Court would keep in mind whether appeal or revision, as the case may be, had been instituted within the period prescribed for such proceedings."
10. Accordingly, the present appeal is not against an order affecting the rights of the appellant but against a procedural order of summoning only.
11. Thus as prayed, the Appeal shall be treated as a Revision Petition.
12.While exercising the revisional jurisdiction, the parameters of scrutinizing an order in Revision are different than the parameters of scrutinizing an order in Appeal. The Court has to look for any impropriety, illegality or error of finding.
Result: Petition Dismissed. Page 7 of 12Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16)
13. The sole piece of material brought forth by the appellants in this regard is the DIR.
14.Perusal of DIR reveals that in the DIR (Form I) in Column No. 5 a) & b), the Protection Officer has reported that, "Note: In the present case complainant Tanvi Dhawan, who was married to respondent no. 1 i.e. Saurabh Talwar on 27 th April 2015 have resided with respondent no. 1 to 3 at shared house till 28th Nov. 2015."
15. On the next page of the DIR in the Column of 'Incidents of Domestic Violence', no incident is shown attributable to respondents no. 2 & 3 till 28.11.2015.
16. Ld. Counsel for appellant highlighted on this anomaly submitting that the Column has been left blank but here ld counsel ignored that in the same Column Incident of Domestic Violence is reported against respondents at Sr. No. 2, 3 & 4.
17. Next, the appellant urged that on the same page of DIR in Column of 'Verbal and Emotional Abuse', the Protection Officer noted, "demanded money for transplant of kidney of respondent no.1". It was urged that none would demand money for such transplant until a Donor is available.
Result: Petition Dismissed. Page 8 of 12Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16)
18. Here also, what is ignored by ld counsel for appellant is that this aspect is depending on evidence to be adduced.
19. Next, the appellant urged that in the DIR at Page 21 of the TCR, the Protection Officer has noted that, "threatened to withdraw the present case." It is urged that as on the date of DIR, the appellants were still to be summoned. Here also, ld counsel for appellants seem to have ignored the fact that their son had been summoned much prior to it and had entered appearance in the Trial Court on 19.4.2016. The DIR was filed subsequently.
20.In the same context, attention of this Court is lastly drawn to the date Column in the DIR which is 19.4.2015. It is urged that the date of marriage is 27.4.2015. This point is well taken but it appears that there is wrong noting of the date in Date Column of the DIR which is ostensibly a result of inadvertence only.
21. So far as respondent is concerned, this Court had been putting a query regarding specific pleadings qua matrimonial house. It is recorded in earlier order dated 27.2.2018. Today also, the same query was put to ld counsel which is appropriately responded. There are two applications under Section 23 of the Result: Petition Dismissed. Page 9 of 12 Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16) D.V Act. The First was filed when the complaint was dismissed as withdrawn. The second was filed subsequently. This application repeatedly refers to House No. M--69, 2nd and 3rd Floor, Kirti Nagar, New Delhi as 'shared household/joint family household/residence of respondents'. The appellants' counsel pointed out that in Prayer Clause (d) the complainant prayed for an order restoring the possession of only one bedroom (with attached washroom) in the shared household. It was urged that when the complainant resided only in one bedroom, how can it be deduced that the appellant would commit acts of domestic violence. Judgment in V.P. Anuradha Vs S. Sugantha @ Suganthi & Ors 2015 Crl. L.J. 3478 has been cited.
22. Here also, ld counsel for appellants seems to have ignored the fact that in the same prayer Clause (d), the complainant referred to the shared household by its Municipal Number i.e. House No. M--69, 2nd and 3rd Floor, Kirti Nagar, New Delhi. This building has various floors and as per the pleadings in the above noted application, the shared household is as above.
23. Ld counsel for appellant contended that in the Petition under Result: Petition Dismissed. Page 10 of 12 Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16) Section 12 of the D.V Act, the complainant has disclosed 5 addresses of respondents no. 1, 2 & 3. At the same time, it is observed that the main address disclosed in the Memo of Parties is House No. M69, 2nd Floor, Kirti Nagar, New Delhi whereas the remaining addresses are shown as 'other addresses' of respondents no. 1, 2 & 3. Sufficient pleadings are therefore, found in the petition regarding shared household. It is also in the application that it is in this household that the respondent committed acts of domestic violence. Moreover, the DIR also shows that the address of shared household is as above only. The DIR reveals that the complainant resided in this household till 28.11.2015. Arguments to the effect that it is not the sole property of the Husband but of the appellants requires evidence for judicial determination. Hence, the judgment in V.P. Anuradha (Supra) shall have no application at the present stage of proceedings in the Trial Court.
24. Suffice is to say that the above pleadings coupled with the DIR reveals that the Ld. Trial Court is justified in ordering summoning of the appellants which was accordingly ordered by way of impugned order. The Court finds no impropriety, Result: Petition Dismissed. Page 11 of 12 Sunil Talwar & Ors Vs State & Ors CA No.54630/16 (97/16) illegality or error of finding in the order impugned.
25. Consequently, the revision petition stands dismissed.
26. Let copy of this judgment be sent to the Ld. Trial Court/its successor Court for intimation alongwith Trial Court record.
27.Appellants are directed to appear before the Ld. Trial Court on 14.2.2019 for further proceedings.
28. File of revision petition be consigned to record room after all necessary compliances.
ANNOUNCED IN THE OPEN ( MANISH YADUVANSHI ) COURT ON : 02.02.2019. ASJ05 (West), THC, Delhi.
Digitally
signed by
MANISH
MANISH YADUVANSHI
YADUVANSHI Date:
2019.02.06
16:37:56
+0530
Result: Petition Dismissed. Page 12 of 12