Delhi High Court - Orders
Shuchi Goel vs Shashi Goel & Ors on 7 July, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14863/2021, CM APPLs. 46900/2021, 29581/2022
SHUCHI GOEL ..... Petitioner
Through: Mr. Rizwan, Adv. with petitioner in
person.
Versus
SHASHI GOEL & ORS. ..... Respondents
Through: Ms. Ashu Arora, Adv. along with
respondent No.1 in person.
Ms. Stuti Gupta, Adv. alongwith
respondent no. 2 in person.
Mr. Anupam Srivastava, ASC with
Mr. Ujjwal Malhotra, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 07.07.2022
1. This writ petition had been preferred against an order dated 11 November 2021 in terms of which the application for stay as moved by the petitioner here in the appeal preferred before the Divisional Commissioner in terms of the provisions made in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 had come to be rejected.
2. Taking into account the submission that the appeal had been entertained and yet the application for stay had been refused, this Court on 22 December 2021 had passed the following order: -
"3. The present petition seeks to assail the order dated 11.11.2021 passed by the Divisional Commissioner while exercising its appellate jurisdiction rejected the petitioner's application for stay of the eviction order dated 25.02.2021 from property bearing house no. 261, Pocket D, Mayur Vihar, Delhi.Signature Not Verified Digitally Signed By:NEHA Signing Date:08.07.2022 16:45:17
4. Learned counsel for the petitioner submits the impugned order fails to appreciate the protection granted to the petitioner and his daughter vide order passed by the Metropolitan Mahila Court on 02.08.2021 in the proceedings initiated by the petitioner under the Domestic Violence Act.
5. Issue notice. Ms. Ashu Arora and Ms. Stuti Gupta accept notice on behalf of respondent nos. 1 & 2 respectively and while praying for time to file counter affidavit, they vehemently contend that once the petitioner is getting maintenance from respondent no.2/her estranged husband, which maintenance amount in terms of the order passed by the Metropolitan Magistrate, includes the amount payable to the petitioner for an alternate accommodation, there is no reason as to why she should continue to occupy the subject premises of which the respondent no.1 is the exclusive owner thereof.
6. However, after some arguments, learned counsel for the respondent no.2 submits that without prejudice to his rights and contentions, respondent no.2 is willing to provide an alternate rented accommodation to the petitioner in the vicinity of the subject premises to which she should immediately shift. She prays for, and is granted, ten days' time to enable the respondent no.2 to look for a suitable alternate accommodation for the petitioner, the details whereof will be shared with the learned counsel for the petitioner. It is expected that before the next date, the petitioner will consider the said proposal after visiting the properties suggested by the respondent no.2, as an alternate accommodation for the petitioner, so that the Court, can on the next date, pass appropriate orders directing the petitioner to shift to a suitable alternate accommodation.
7. In the light of the aforesaid, till the next date, the operation of the impugned order will remain stayed.
8. List on 18.01.2022, on which date both the parties will remain present in person."
3. It is pointed out by learned counsel appearing for the respondent that although a suitable alternative accommodation was identified and offered to the petitioner, she did not proceed further in accordance with the procedure as prescribed in the order of 22 December 2021 and thus the situation today remains the same. It was contended that since she refused to cooperate in the aforesaid exercise, the stalemate continues.
4. The Court notes that presently the Divisional Commissioner is yet to rule on the merits of the appeal. In view of the aforesaid, the ends of justice Signature Not Verified Digitally Signed By:NEHA Signing Date:08.07.2022 16:45:17 would warrant the Divisional Commissioner being called upon to decide the appeal itself on merits, in accordance with law and with due notice to all parties.
5. The Court while passing the aforesaid direction bears in mind the fact that the Divisional Commissioner being the fact finding authority in the first instance would be well suited to deal with the rival contentions of parties before the matter, if at all, comes to be placed before this Court for consideration of exercising its power of judicial review. Entertaining the writ petition at this stage and taking on the mantel of deciding the disputes inter partes would deprive parties of an opportunity to address submissions before the appellate authority.
6. Accordingly, the writ petition shall stand disposed of with a direction to the concerned Divisional Commissioner to take up the appeal which has been preferred and to endeavor to dispose of the same with expedition and not later than within two months from today. The Divisional Commissioner shall ensure that the proceedings are closed with expedition and without the grant of any unnecessary adjournments to either of the parties. All contentions of respective parties on merits are kept open.
7. The Court further provides that the interim protection granted to the petitioner here shall continue till the appeal is decided by the Divisional Commissioner. The Court further observes that the initial protection accorded by the Court was occasioned by its endeavour to consider whether an amicable solution could be arrived at. Consequently, the said order and the grant of interim protection shall not be viewed as an expression by this Court on the merits of the challenge laid in the appeal. It shall thus be open to the appellate authority to decide the appeal on its merits uninfluenced by Signature Not Verified Digitally Signed By:NEHA Signing Date:08.07.2022 16:45:17 the interim orders passed in this writ petition.
YASHWANT VARMA, J.
JULY 7, 2022 neha Signature Not Verified Digitally Signed By:NEHA Signing Date:08.07.2022 16:45:17