Himachal Pradesh High Court
Tejinder Singh vs Beverley Singh on 27 December, 2023
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao, Jyotsna Rewal Dua
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA .
FAO(FC) No.12 of 2023
Reserved on:15.12.2023
Pronounced on:27.12.2023
of
Tejinder Singh ......Appellant
Versus
Beverley Singh
rt ...Respondent
____________________________________________________ Coram:
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?
For the appellant : Mr.Rakeshwar Lall Sood, Sr. Advocate with Mr. Arjun Lall and Mr. Aakash Thakur, Advocates.
For the respondent : Mr. Neeraj Gupta, Sr. Advocate with Mr. Deepak Gupta and Ms. Rinki Kashmiri, Advocates.
M.S. Ramachandra Rao, Chief Justice.
This FAO is filed by the appellant herein challenging the order dt. 19.05.2023 passed by the District Judge (Family Court), Shimla dismissing CMP no.77-S/6 of 2023 filed by the appellant against the ::: Downloaded on - 27/12/2023 20:34:05 :::CIS 2 respondent under Order 39 Rules 1 & 2 C.P.C. in C.S. no.5 of 2023 .
filed by the appellant.
2) The appellant and the respondent got married on 18.03.2009 at New Delhi. It was registered at New Delhi under the Hindu Marriage of Act,1955 as per Marriage Registration Certificate Annexure P-3.
3) The parties lived together in two shared households being House rt no.3A, Sardar Patel Marg, New Delhi and at Knollswood Estate, Shimla (East).
4) Before the appellant had married the respondent, he was married on three previous occasions and had parted company with his three previous spouses. He has, through his first wife, a daughter called Piya Singh, who is said to be a divorcee and is permanently residing with him and allegedly dependent on him. From his 2 nd wife, who resides in England, the appellant has two daughters who are settled in London. He has no issues from his 3rd wife nor from the present respondent.
5) The respondent was also previously married in Goraya (Punjab), but her husband passed away and she has a son and a daughter from that marriage.::: Downloaded on - 27/12/2023 20:34:05 :::CIS 3
C.S. no.5 of 2023 filed on 28.4.2023 .
6) The Civil Suit no.5 of 2023 was filed by the appellant under the Family Courts Act, 1984 on 28.04.2023, for the following relief(s):-
"a. Grant a decree of permanent, perpetual and prohibitory injunction against the respondent and in favour of the of petitioner, restraining her from entering or approaching any place of residence of the petitioner, within 100 metres of such place of residence, particularly Knollswood Estate, rt Shimla East, Shimla-171002.
b. Grant a decree of permanent, perpetual and prohibitory injunction against the respondent restraining her from approaching or coming in contact within the petitioner, and from approaching him or coming within a distance of 1O metres.
c. Grant a decree of permanent, perpetual and prohibitory injunction against the respondent restraining her from removing any household articles, furniture, carpets, paintings, silverware, artifacts, electric and electronic gadgets from the house(s) of the petitioner.
d. Grant a decree of permanent, perpetual and prohibitory injunction against the respondent restraining her, her servants, agents or any other persons claiming through her or under her instructions, from interfering in any manner whatsoever, of the use, occupation, possession and enjoyment by the petitioner and any person claiming ::: Downloaded on - 27/12/2023 20:34:05 :::CIS 4 through or under him of his immovable and movable properties.
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e. Grant a decree of permanent, perpetual and prohibitory injunction against the respondent, restraining her from raising any demand against the petitioner, for providing her with any further personal exclusive residence.
f. Allow any other relief deemed fit by this learned Court, in of favour of the petitioner and against the respondent as may be deem fit and proper in the peculiar facts and circumstances attending to the present case.
rt g. Allow costs of the present petition in favour of the petitioner and against the respondent."
7) According to the appellant, he is a wealthy man having several properties in India at Delhi, Shimla, Dehradun, Solan etc and in United Kingdom. He also claimed to be giving a very high monthly allowance to the respondent. He also claimed that he had paid Rs.4 crores to her.
8) He claimed that on the respondent's insistence he had to sell certain properties and buy certain other properties in India and London, that he gave her substantial moneys from the sale of those properties also which she put in her personal Bank accounts. Details of all these transactions are set out in the plaint.
9) According to him, he had a complicated prostrate problem, which required surgeries at Shimla, Apollo Hospital & Medanta Hospital, ::: Downloaded on - 27/12/2023 20:34:05 :::CIS 5 New Delhi and also in PGI Hospital, Chandigarh and claimed that the respondent totally neglected him.
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10) He claimed that since he did not have any regular source of income to meet his living and other expenses, he had decided to rent out his house at Plot no.3A, Sardar Patel Marg, New Delhi and relocate to Chandigarh.
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11) But according to him, the respondent insisted and made him purchase a home in Dehradun for Rs.3.5 crores, and after the said rt purchase took place, she refused to reside with him in Dehradun, and insisted that the appellant should provide her residence for their living in Chandigarh only. He contended that she preferred to live in Chandigarh because her son was living in Goraya (Punjab), and so at the insistence of the respondent, he had taken on lease an Apartment in Sector 8C, Chandigarh, on a monthly rent of Rs.1,25,000/-. He also claimed that the respondent spent a lot of money in buying gadgets and furnishings.
12) According to the appellant, in the 1 st week of January, 2023, when he had leased property in 3A, Sardar Patel Marg, New Delhi, he transferred furniture, carpets, some paintings and personal household articles and belongings to the Chandigarh flat and his Shimla house and also to his other properties at Village Nihara in ::: Downloaded on - 27/12/2023 20:34:05 :::CIS 6 Tehsil Kandaghat of District Solan (H.P.), but he came to know that some of the furniture, carpets & personal belongings had been .
transported by the respondent, without the knowledge of the appellant, from his House 3, Sardar Patel Marg, New Delhi to her son's home in Goraya (Punjab) without his consent.
13) He alleged that the respondent threatened that she would make his of life unlivable, involve him in false criminal cases and ensure that he will rot in the Jail.
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14) On 26.01.2023, he alleged that the respondent had removed expensive silverware, certain important papers, title deeds of properties, bank transaction papers and papers relating to investments apart from her own FDRs to her home at Goraya (Punjab) where her son from the previous marriage lives.
15) He also alleged that on 10.02.2023, the respondent returned to the residence of the appellant at Knollswood, Shimla, and told him that she did not want to live with him and would rather see him die. He claimed that in view of the threats allegedly made by the respondent, he did not feel safe and felt that they could not live together under the same roof, and suggested to the respondent to stay in the apartment at Chandigarh.
::: Downloaded on - 27/12/2023 20:34:05 :::CIS 716) He claimed that on account of threats made to his life, property, personal liberty and health, he had no option but to shift the .
personal belongings of the respondent such as her cloths etc., to an outhouse adjoining the main house of the appellant at Knollswood Estate, Chhota Shimla, and is allegedly part of the composite Estate, so that he and the respondent can live independently from each of other.
17) He alleged that the respondent returned to Shimla on 18.04.2023 rt and when she was informed by him that she should stay in the outhouse adjoining the main house of the appellant in Knollswood Estate, she allegedly flew into a rage and demanded entry into the main house; and on being refused, she had allegedly attempted to physically intimidate the appellant and that he backed off. He alleged that she told him that she wished that he was dead and that she would have him arrested and then proceeded to hit herself and pulled her own hair.
18) He also claimed that the respondent rang up the Police Station at Chhota Shimla, that the police arrived on the scene, and the appellant was compelled to permit the respondent to enter the house and thereafter, she shifted her entire personal belongings from the out house to the main house.
::: Downloaded on - 27/12/2023 20:34:05 :::CIS 819) The appellant also claimed to have filed a police complaint against the respondent on 18.04.2023 with Police Station, Chhota Shimla, .
and claimed that he had informed the police about the danger to his life and health and insisted that he be provided security by deputing a lady officer at his residence at his cost.
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20) He complained that when he returned to his home that day, the respondent had locked him out of his own bedroom and refused to rt give him any entry and access to his medicines etc. He claimed that he had to call up the Police Station and thereafter, the Police Officers arrived on the scene, persuaded the respondent to relent and he was then allowed to enter his own bedroom at about 11.30 p.m. He stated that the respondent had forcibly occupied the house and constantly keeps on abusing and threatening him with dire consequences.
21) He claimed that the respondent is 12 years younger to him and is of a bigger build & taller to him and also physically much stronger than him.
22) He claimed that the assets of the respondent were of approximately Rs.14 crores in value, apart from which, she was having assured ::: Downloaded on - 27/12/2023 20:34:05 :::CIS 9 monthly income of Rs.5 lacs apart from interest income from certain investments made by her.
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23) He categorically admitted in Paras 21, 22 & 30 that he and the respondent were residing in Knollswood, Chhota Shimla-171002.
The application CMP no.77-S/6 of 2023 filed by appellant under Or.39,Rule 1 and 2 CPC in the C.S.No.5 of 2023 of
24) Alongwith this suit, the appellant had filed the application CMP no.77-S/6 of 2023 under Order 39 Rules 1 & 2 C.P.C., seeking the following relief:-
rt "a. Grant a temporary injunction in favour of the petitioner/applicant and against the respondent/non- applicant restraining her from approaching/entering the properties of the petitioner/applicant, within a distance of 100 meters.
b. Further, to grant a temporary injunction against the respondent restraining from maintaining a distance less than 10 meters from the respondent and from either speaking to him or from addressing any communication to him."
25) In the said application, he reiterated the contents of the plaint and contended that there is a constant and persistent abuse, threat to his life, personal liberty, mental & physical health as well as his property from the respondent; that they are deteriorating from day-::: Downloaded on - 27/12/2023 20:34:05 :::CIS 10
to-day on account of the torture committed by the respondent; that he had a prima facie case; that balance of convenience was in his .
favour and irreparable loss & injury would be caused to him, which cannot be adequately compensated in terms of money, if the temporary injunctions sought by him are not granted.
26) He claimed that he had already provided an independent and of separate residence to the respondent, which was a luxurious Penthouse no.1224, Sector 8C in Chandigarh, for which he was rt paying rental of Rs.1,25,000/- every month, and since the respondent was wealthy and had Rs.4 crores worth of FDRs., he may be granted the said relief.
Other events.
27) On 28.04.2023, the day when the appellant had filed the suit C.S. no.5/2023 before the District Judge ( Family Court), Shimla, the respondent had also filed a complaint under the Protection of Women from Domestic Violence Act, 2005 (in short "the DV Act") before the Chief Judicial Magistrate, Shimla, inter alia, seeking reliefs of Protection Order under Section 18, Residence Order under Section 19, Monetary Reliefs under Section 20 of the Act, Compensation Order under Section 22 of the Act etc. ::: Downloaded on - 27/12/2023 20:34:05 :::CIS 11
28) In the said complaint, she specifically asserted that she and the appellant had been residing in the shared household at Knollswood .
Estate, Chhota Shimla, during the summer months from April to mid October and in the shared household at Sardar Patel Marg, Chankayapuri, New Delhi during the winter months from mid October to March.
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29) She contended that without informing her, the appellant had rented out the shared residential house at 3A, Sardar Patel Marg, rt Chankayapuri, New Delhi, at a monthly rent of over Rs.11 lacs and curtly informed her that she could not reside in the same any more and she should make her own arrangement for her residence in New Delhi.
30) She claimed that she and the appellant were living in their shared household at Knollswood, Chhota Shimla and so on 18.04.2023, she came from Delhi at the said place to spend summer months, but the appellant refused to let her into the house and told her to make her own arrangements, stating that he would not permit her to stay in the house. She claimed that she managed to get into the house from the back garden, but was shocked to find that all the rooms had been locked by the appellant.
::: Downloaded on - 27/12/2023 20:34:05 :::CIS 1231) She stated that when she demanded that her bedroom be opened, the appellant told her that he would not allow her to reside in the main .
house, but she could live in the outhouse which was adjacent to the servant quarters and he had shifted all her belongings to the said outhouse.
32) She claimed that when she tried to open her bedroom, the appellant of became violent and used abusive language against her and he twisted her finger and hit her on her face & ear and so she made a rt complaint against the appellant to the Police Station, Chhota Shimla, on which the police came to the spot and recorded her statement.
33) After the police got her medically checked up, when she returned, she found the bedroom to be again locked and so she managed to enter the house through the backyard from an open window and managed to reach the appellant's bedroom.
34) After entering the appellant's bedroom, she locked the same from inside and though the appellant threatened her repeatedly, she did not open the bedroom door.
35) She claimed that the appellant had then called the police at 10.00 p.m. at night, who arrived at the spot, and asked the respondent to open the appellant's bedroom, and on the intervention of the police, ::: Downloaded on - 27/12/2023 20:34:05 :::CIS 13 the appellant opened the door of the bedroom and she also entered the same, but realized that her entire belongings, including bed and .
furniture, had been removed by the appellant.
36) She sought interim relief restraining the appellant from interfering in any manner with her right to reside in the shared household at Knollswood Estate, Chhota Shimla.
of Events after filing of complaint under the DV Act by respondent.
37) On 29.04.2023, the said complaint under the Protection of Women rt from Domestic Violence Act, was listed before the Additional Chief Judicial Magistrate, Court No.1, Shimla, H.P.
38) On that day, Shri Arjun Lall and Shri Sanjay Kumar, counsel for the appellant, filed Power of Attorney and waived service of notice and the matter was fixed on 12.05.2023 on the request of the counsel for the parties.
39) It appears that the temporary injunction application under Order 39 Rules 1 & 2 C.P.C. filed by the appellant-applicant, being CMP no.77-S/6 of 2023, was listed on 01.05.2023 by the District Judge (Family Court), Shimla, and she passed the following order:
"01.05.2023 Present: Sh. Arjun Lal Sood, Advocate for the applicant.
Office report seen. It be registered.::: Downloaded on - 27/12/2023 20:34:05 :::CIS 14
Heard record perused. It is alleged that the petitioner is being threatened to his life and to his mental and physical health as well as property by the respondent, due to the .
acrimonious relations having arisen in between the parties, on account of the proprietary disputes. In view of such facts and circumstances of the case, it would be appropriate to issue notice to the respondent for 15.05.2023. In the meanwhile the respondent is restrained from entering into the residential house of of the petitioner situated at Knollswood Estate, Shimla East, Shimla, Himachal Pradesh 171002. However, she is at liberty to live in cottage of aforesaid Knollswood Estate, let compliance rt of XXXIX Rule 3 CPC be also made. Dasti summons be issued as prayed, steps be taken within a week."
40) A reading of this order does not indicate that appellant's counsel ( who had also appeared on 29.4.2023 in the DV case filed by the respondent against the appellant) informed the District Judge (Family Court) about the filing of the said DV case by the respondent against the appellant and her apprehension of exclusion from the shared household at Knollswood Estate by the appellant specifically pleaded therein. It appears that such information was suppressed by the appellant's counsel from the District Judge (Family Court), Shimla.
41) While granting the ex-parte ad-interim injunction on 1.5.2023 restraining the respondent from entering into the residential house of ::: Downloaded on - 27/12/2023 20:34:05 :::CIS 15 the appellant in Knollswood Estate, Chhota Shimla, the District Judge (Family Court), Shimla, had not given any reasons as .
mandated by Proviso to Order 39 Rule 3 C.P.C. The said proviso states that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court has to record reasons for its opinion that the object of grant of injunction of would be defeated by delay.
42) This provision was considered by the Supreme Court in Shiv rt Kumar Chadha vs. Municipal Corporation of Delhi & Ors.1, and it was held that when the statute itself requires reasons to be recorded, the said requirement is imperative and the Court cannot ignore the said requirement. The Supreme Court held that recording of reasons is not a mere formality for grant of ex-parte injunction, but that it was consistent with the principle that a party to a suit, who is being restrained from exercising a right, which such party claims to exercise under a statute or under common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. It held that exercise of power to grant ex-parte injunction without notice to the other side is an exception, and since they have far reaching effect, the Court 1 (1993) 3 SCC 161 ::: Downloaded on - 27/12/2023 20:34:05 :::CIS 16 has to record reasons before passing such order and compliance with the requirement of giving reasons, is not optional but .
obligatory.
43) In addition to the above defect, we may also point out that when the appellant in paras 21, 22 & 30 of the plaint specifically admitted that the respondent was also residing along with him in the of Knollswood Estate, Chhota Shimla on the date of filing of the suit i.e., 28.4.2023, such an ex-parte injunction could not have been rt granted against the appellant without notice to her. Obviously the District Judge( Family) Court had not noticed these admissions of the appellant in the plaint filed by him. This is the second error on the said order.
44) Moreover, in the said order dt. 01.05.2023 passed in the application under Order 39 Rules 1 & 2 C.P.C., the District Judge (Family Court), did not record the existence of prima facie case in favour of the appellant, or that there was balance of convenience in his favour, or that irreparable injury would be caused to him, if such ex-parte injunction was not granted on that day.
45) In Seema Arshad Zaheer and Ors. vs. Municipal Corpn. of Greater Mumbai and Ors2, the Supreme Court held:
2(2006) 5 SCC 282 ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 17 "The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the Plaintiff: (i) existence .
of a prima facie case as pleaded, necessitating protection of the Plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the Plaintiff's rights is compared with or weighed against the need for protection of the Defendant's rights or likely of infringement of the Defendant's rights, the balance of convenience titling in favour of the Plaintiff; and (iii) clear possibility of irreparable injury being caused to the rt Plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the Plaintiff's conduct is free from blame and he approaches the court with clean hands."
46) Thus, having secured such an exparte interim injunction order on 01.05.2023 from the District Judge (Family Court), Shimla, the appellant (who had admitted the residence of the respondent in Knollswood Estate, Chhota Shimla on the date of the filing of the suit, i.e. 28.04.2023) succeeded in keeping the respondent out of the said shared household in gross violation of the settled principle that a person in possession (like the respondent wife) cannot be dispossessed without due process of law (N. Umapathy vs. B.V. Muniyappa Ors.3) 3 (1997) 9 SCC 247 ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 18
47) Having suffered the interim injunction order on 01.05.2023 ex-parte, on 07.05.2023, the respondent filed an application C.M.A.No.527 of .
2023 before the District Judge (Family Court), Shimla to vacate the said order passed on 01.05.2023 by filing a detailed reply.
Written Statement of the respondent before the District Judge ( Family Court) Shimla in C.S.No.5 of 2023 of
48) She also filed a written statement in that Court denying the allegations in the plaint and contended that the suit is not rt maintainable and contrary to provisions of the DV Act. She contended that the appellant was the wrongdoer and oppressor during the marriage.
49) She contended that the suit is a counter-blast to her complaint filed under the DV Act against the appellant. She contended that the allegations of cruelty etc., leveled by the appellant were not true, and if they had been true, he would have earlier filed some complaint with the police. She stated that he wanted to take revenge on her for standing up for her rights.
50) She asserted that the appellant alone was dealing with his various properties and was exercising full control over them. She stated that in order to circumvent certain laws, he had even purchased lands/properties in name of his daughter Piya Singh and also his ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 19 managers Madan and Pawan and had obtained irrevocable powers of attorney from them in their favor.
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51) She alleged that he suppressed material facts and did not come to the court with clean hands.
52) She contended that the Main house of Knollswood estate, Chota Shimla consists of 7000 sq.ft with 6 big rooms with attached toilets, of two huge living and drawing rooms, conservatory, two study rooms, Gymnasium, temple and a glazed verandah with attached sitting rt rooms, Jacuzzi, steam room and a large kitchen and a pantry and an attic. Even the house No.3A, Sardar Patel Marg, Chankyapuri, New Delhi owned by him is of built up area 7500 sq.ft and has 6 bed rooms with attached toilets, dining room, two living rooms, one sitting room, gymnasium and two study rooms.
53) In contrast, the outhouse in Knollswood Estate comprises a hall and one bedroom which has a common wall with the servant quarters, no kitchen , that it is dilapidated, that doors and windows have gaps through which rats enter into it.
54) Compared to the main house which is the shared household of the respondent, the out house is extremely shabby.
55) She contended that he owns properties worth Rs.500 crores and has a monthly income of at least Rs.50 lakhs.
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 2056) She asserted that she and the appellant had been residing from April to mid-October in the shared household at Knollswood estate, Chotta .
Shimla and from mid-October to march at the shared household at Sardar Patel marg, New Delhi residence.
57) She alleged that the appellant's behavior was over bearing, dominating, abusive and aggressive and that was why his three of previous wives had divorced him.
58) She alleged that appellant had subjected her to persistent acts of rt domestic violence and had only been giving small amounts of money to her occasionally for her personal needs.
59) She contended that the shared matrimonial home at 3-A, Sardar Patel Chanakayapuri, New Delhi was let out by the appellant in December, 2022 for Rs.11 lacs per month rent only to oust the respondent from her home.
60) She stated that in 2021, he purportedly gave some lands in Kangra Distrcit to her, but on the very same day he had obtained an irrevocable Power of Attorney and an irrevocable Will in his own name from her in respect to the entire property.
61) She claimed that she took care of him at the time of his illness and hospitalization at PGI, Chandigarh and that none of his relatives visited him when he was in the hospital.
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 2162) She stated that on 18.4.2023, the appellant refused to let her into the main house at Knollswood estate and told her to make her own .
arrangements and he would not permit her to stay in that house. She stated that when she somehow managed to get into the house from the back garden, she found all doors locked. She contended that when she demanded that her bed room door be opened, the appellant of reiterated his wish not to let her stay in the house and asked her to live in the outhouse adjacent to the servant quarters and that he had rt shifted all her belongings to the said out house.
63) She alleged that when she tried to open her bed room, the appellant became violent, used abusive language against her, twisted her finger, and also hit her on the face and ear.
64) The respondent then sought help of police, who arrived on the spot from Police Station, Chota Shimla and recorded her statement.
Thereafter the police personnel took her for a medical checkup and for recording her statement at Police Station, Shimla (East).
65) She stated that from 18.4.2023 to 28.4.2023 she continued to stay in the main house of Knollswood Estate. Due to her police complaint, the appellant did not dare to physically assault her and so she filed complaint on 28.4.2023 under the DV Act seeking several reliefs.
She stated that she then left for Delhi to meet her family who had ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 22 come from London for sometime. When she returned from Delhi on 6.5.2023, she came to know that the appellant had obtained an ex-
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parte interim injunction order against her from the Court restraining her from entering the Knollswood Estate home.
66) She claimed that she was being paid very small amounts of money, and only after March, 2023, the appellant had deposited Rs.1 lac per of month in her account only to show that he was giving sufficient amount of money to her for her personal expenses.
rt
67) She stated that the respondent, in fact, took Rs.4.50 crores from her relatives by pressuring her and also physically intimidating her and transferred the said amount to his own account in Delhi.
68) She claimed that she was not aware about the flat in England, but she was taken to a lawyer by the appellant and was made to sign some papers. She stated that she came to know later that this was done in order to avoid investigation by the authorities in India, initiated by the appellant's brother Gurvinder Singh.
69) She claimed that the appellant had forced her to sell a flat which belonged to her in London since 1988, and made her purchase two small commercial flats in their place in order to derive rent therefrom.
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 2370) She claimed that all transactions were carried out by the appellant by transferring properties either through his close relatives or .
Managers and then by obtaining irrevocable General Power of Attorney as well as irrevocable Wills from them in his own favour in order to circumvent various laws and to avoid paying tax and to evade the inquiries initiated against him by the authorities.
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71) She claimed that whatever properties were transferred to her, they were still in complete control and management of the appellant, that rt she had no say whatsoever in those properties, and she was made to sign documents before authorities on the direction of the appellant.
72) Therefore, since the House No.3A, Sardar Patel Marg, New Delhi has been let out in December, 2022, the only other shared household available to her to stay is the Main House at Knollswood estate, Chota Shimla.
73) She stated that the outhouse being offered for her stay by the appellant had a common wall with servant quarters and it consists of only two rooms without kitchen and was in a shabby condition, and is unfit for residence by her, as it adjoins the servant quarters.
74) She stated that it is the responsibility of the appellant to ensure that she maintains her social standing and status and is able to live her life with dignity.
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 24The order dt. 19.05.2023 of the Family Court in the Or.39 .Rule 1 an2 CPC application of the appellant
75) On 19.05.2023, the Family Court dismissed the application CMP .
no.77-S/6 of 2023 filed under Order 39 Rules 1 and 2 C.P.C.
76) In the order dt. 19.05.2023, the Family Court considered these pleas and held that the appellant had not placed on record any complaint of of violence against the respondent prior to 18.04.2023.
77) After referring to the complaint made on 18.04.2023 by the rt appellant against the respondent in the Police Station of Chhota Shimla and also to the complaint filed by the respondent against the appellant under Section 12 of the Protection of Women from Domestic Violence Act on 28.04.2023, the Family Court held that the allegations and counter allegations made by parties are yet to be proved by both parties by leading evidence and in the circumstances, it cannot be said that the threat to physical and mental health of the appellant is so grave that the respondent cannot be allowed to live in the shared household at Knollswood Estate, Shimla.
78) It held that if there had been such a threat to his physical and mental health since the time of his marriage from the respondent in 2009, ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 25 appellant would have made a complaint to the police or to any other authority earlier.
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79) Regarding the allegations mutually levelled against each-other about transfers of properties, the Family Court recorded that Rs.4.50 crores had been transferred by the respondent to the account of the appellant through a cheque and disbelieved the plea of the appellant of that he transferred Rs.4 crores to the respondent.
80) It then also considered the settlement deeds made between the rt parties pertaining to certain properties in District Kangra, Himachal Pradesh, which contained a clause prohibiting the respondent from selling, mortgaging, exchanging, gifting, leasing or alienating the same without the consent of the appellant. It also considered the General Power of Attorney executed by the respondent in favour of the appellant and a Will dt. 31.08.2021 executed by her in favour of the appellant and gave a prima facie finding that it was the appellant who was managing his property as per his own will without any say of the respondent.
81) It also recorded that the appellant had already rented out the accommodation situated at 3A, Sardar Patel Marg, Chanakayapuri, New Delhi, where the respondent was living in the shared household with the appellant during winter.
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 2682) It then held that under Section 2(s) of the DV Act, the respondent was being deprived by the appellant of staying in her shared .
household at Knollswood Estate, Chhota Shimla from 18.04.2023 by shifting her belongings to the outhouse adjoining to the servant quarters.
83) It also held that there were no prolonged criminal or civil litigations of or divorce proceedings pending between the parties prior to 18.04.2023, when act of violence was reported to the police, and rt proceedings under the DV Act were initiated against the appellant.
84) It therefore concluded that the appellant had no prima facie case or balance of convenience and would not suffer any injury which cannot be compensated in terms of money, if the interim injunction, as sought, is not granted.
85) It also held that the respondent would suffer more injury, if such interim injunction is allowed in favour of the appellant, as it would restrain the respondent from prosecuting proceedings under the DV Act, which is not permissible under clause (b) of Section 41 of the Specific Relief act, 1963. It also held that the conduct of the appellant had been such as would disentitle him to the injunction as provided under clause (i) of Section 41 of the Specific Relief Act,1963.
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 2786) It however clarified while dismissing the interim injunction application that it's order would have no bearing on the merits of the .
main suit or on proceedings pending before the Additional Chief Judicial Magistrate, Shimla, under the DV Act.
The instant FAO (FC) 12 of 2023
87) Challenging the order dt.19.5.2023 of the District judge (Family of Court), Shimla dismissing the appellant's application CMP no.77- S/6 of 2023 under Order 39 Rules 1 & 2 C.P.C., the instant rt FAO(FC) no.12 of 2023 was filed on 19.05.2023, the date of pronouncement of the order by the Family Court.
88) The certified copy of the said order was not filed along with the said FAO. An application CMP.No.6282/2023 was filed on 23.5.2023 to grant leave to file the same later. This application is allowed in this order by us.
89) Curiously grounds for filing the FAO bear the date 18.5.2023, the day before the impugned order was pronounced by the District Judge (Family Court) , Shimla. The CMP no.5943 of 2023 seeking stay of the operation of the impugned order of 19.05.2023 was got attested before an Oath Commissioner on 18.05.2023. Another application CMP no.5944 of 2023 was also signed on 18.05.2023 before the Oath Commissioner seeking leave/permission of the ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 28 Court to prefer the appeal on the basis of gist of the impugned order of 19.05.2023, allegedly pronounced and heard ( but which in fact .
was to be pronounced the next day on 19.5.2023.)
90) If the actual impugned order was pronounced on 19.05.2023 by the District Judge (Family Court), Shimla, it is inexplicable and astounding as to how, on the previous day i.e., 18.5.2023, grounds of for filing the appeal and these applications were got prepared and attested before an Oath Commissioner and made ready for filing on rt 19.05.2023. It appears that the appellant/his counsel possessed unusual powers of clairvoyance and could anticipate a Court order even before it is pronounced and prepare grounds of appeal without knowing the contents of the order, a day before the actual order was passed.
91) Though counsel for the appellant contended that they were all prepared after reading the impugned order, the fact that they bear the date 18.5.2023 and are attested by an Oaths Commissioner also on that day, disprove his contention.
The interim order dt.19.5.2023 in the FAO No.12 of 2023
92) The record reveals that the appeal was taken up after the Court hours around 06.00 p.m. by a Division Bench of this Court and the following order was passed on 19.05.2023:-
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 29" Heard for some time. It is 6.20pm.
4. Without adjudicating the matter on merit and keeping .
all issues open, raised during oral arguments as well as in the appeal, matter is adjourned with direction that for the time being, till next date, implementation of impugned order dated 19.05.2023 is ordered to be kept in abeyance, with a direction to the parties to continue with the arrangement as ordered by of the Family Court, vide order dated 01.05.2023, passed at the time of filing the suit.
5. It has been informed that a matter, under Protection of rt Women from Domestic Violence Act (DV Act), in a complaint filed by the respondent, is pending adjudication before the Court of learned Additional Chief Judicial Magistrate (1), Shimla, H.P., and fixed for 20.05.2023 for passing order and for passing of interim order by this Court, the said Court may not be able to pass any appropriate order on merits in the said proceedings.
6. It is clarified that proceedings under DV Act are independent proceedings which are to be decided by the Magistrate independently on the basis of material placed on record and in accordance with relevant law and, thus, it is observed that passing of aforesaid order shall not come in the way of Magistrate for passing any appropriate order, in accordance with law, in the proceedings pending before him by considering the material placed before him on its own merit and Magistrate shall pass appropriate order independently without being influenced by the order passed by this Court in ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 30 the present case, order dated 01.05.2023 passed by the Family Court at the initial stage of the Civil Suit in reference in present proceedings and also order dated 19.05.2023, impugned in the .
present appeal."
93) Even the Division Bench failed to notice that the appellant himself admitted that the respondent had been residing with him in the main house at Knollswood Estate, Chota Shimla on the date of filing of of the suit i.e.,28.5.2023.
94) Also once the application under Or.39 Rule 1 and 2 has been rt dismissed by the District Judge ( Family Court), there is no question of it's implementation being kept in abeyance. A fresh temporary injunction should have been sought again in this FAO in this Court by the appellant by filing an application.
95) But strangely the appellant sought, by filing CMP.No.5943/2023 (attested on 18.5.2023 before the Oaths Commissioner), stay of the order dt.19.5.2023 of the District Judge (Family Court) and for a direction to the parties to maintain status quo as existing immediately prior to the passing of the impugned order till the disposal of the appeal.
96) Thus he indirectly wanted the revival of the interim injunction dt.1.5.2023 granted by the said Court, but it having merged in the ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 31 final order dt.19.5.2023 of the said Court, it was no longer in existence and could not have been brought to life.
.
CMP.No.7242/2023 filed by respondent to vacate the interim order dt.19.5.2023 in the FAO (FC) 12/2023.
97) CMP no.7242 of 2023 is filed by the respondent on 13.06.2023 to of vacate the said order passed on 19.05.2023.
Affidavit of appellant giving detailed of pending cases between the parties rt
98) Counsel for the appellant-accused filed an affidavit on 15.12.2023 stating the various litigations on various forums being pursued by the parties. They are as under:-
i. The Civil Suit 5 of 2023 filed by the appellant on 28.04.2023, out of which, this appeal arises;
ii. Complaint no.20 of 2023 filed on 28.04.2023 by the respondent against the appellant which is pending before the ACJM-1, Shimla;
iii. Civil Suit no.29 of 2023 filed by the respondent on 16.05.2023 against the appellant and the appellant's daughter Piya Singh for permanent injunction in this High Court;
iv. The instant FAO(FC) no.12 of 2023; ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 32 v. Criminal Appeal no.92 of 2023 wherein the respondent
had challenged an order dt. 25.05.2023 passed by the .
ACJM-1, Shimla, which is currently transferred to the Sessions Judge, Shimla;
vi. Cr. Petition no.1635 of 2023 filed by the appellant on 05.06.2023 before the Sessions Judge, Shimla for recalling of of Cr. Appeal no.92 of 2023 from the Court of Additional Sessions Judge-1, Shimla to his own Court, which was rt allowed on 04.07.2023;
vii. Cr.MMO no.784 of 2023 filed by the respondent on 28.07.2023 against the order of Sessions Judge, Shimla whereby he had recalled Cr. Appeal no.92 of 2023 to his own Court for disposal, which was dismissed on 22.09.2023;
viii. Petition filed under Hindu Adoption and Maintenance Act, 1956, being HIDU ADP no.2 of 2023 by the respondent on 31.07.2023 in the Court of the Principal Judge, Family Court, Patiala House, New Delhi under Section 18 of the said statue read with Section 7(1) (f) of the Family Court Act, in which that Court had ordered payment of Rs.1,25,000/- per month as maintenance to the respondent;
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 33ix. LPA no.209 of 2023 filed by the appellant against the respondent, challenging order dt. 21.07.2023 passed by the .
Single Judge of this High Court stating that this Court had jurisdiction in the matter of adjudicating Civil Suit no.29 of 2023;
x. DV Complaint no.33 of 2023 filed by the daughter of the of appellant Piya Singjh on 21.08.2023 against the respondent and also the appellant, pending before the rt ACJM-1, Shimla;
xi. Action initiated by the Municipal Corporation, Shimla, on the complaint of the respondent-wife made on 21.08.2023 against the appellant alleging that unauthorized additions and alterations were being done by the appellant in his property;
xii. Criminal Complaint no.53 of 2023 filed on 14.09.2023 by the appellant against the respondent under Section 156(3) of Cr.P.C., seeking directions to the police to register a criminal case against the respondent-wife for theft etc., pending before the ACJM-1, Shimla;
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 34xiii. HMA no.248 of 2023 filed by the appellant under Section 13 of Hindu Marriage Act, 1956 before the Family Court, .
Shimla, seeking divorce from the respondent;
xiv. SLP (Civil) Diary no.39005 of 2023 filed by respondent on 20.09.2023 against orders dt. 19.05.2023 and 28.08.2023, passed by this High Court in FAO(FC) no.12 of 2023, of which was disposed of on 10.10.2023, directing this Court to decide either the said FAO expeditiously or the interim rt application therein, while refusing to interfere with the said orders;
xv. Transfer Petition (Civil) no.2997 of 2023 filed in the Supreme Court on 01.11.2023 filed by the appellant for transfer of the Hindu ADP Case no.2 of 2023 to the Family Court at Shimla; & xvi. Civil Suit filed on 29.11.2023 by the appellant for recovery of Rs.5,19,79,838/- from the respondent in this Court, which is not yet numbered.
Contentions of counsel for the appellant
99) Sri R.L.Sood, Senior Counsel for the appellant emphasized the pleas in the plaint filed by the appellant in C.S. no.5 of 2023 about the alleged greed of the respondent, abusive and threatening ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 35 behavior of the respondent and stated that the health and safety of the appellant, who is an old man, would be seriously in jeopardy in .
case this Court has to hold in favour of the respondent and grave and irreparable loss would be caused to the appellant.
100) He placed reliance on the decisions of the Supreme Court in Jaidev Rajnikant Shroff vs. Poonam Jaidev Shroff4 to contend the of respondent, in the facts and circumstances of the case, has no right to insist on a particular accommodation in the occupation of her rt husband to reside in; and it is open to the husband, in such a circumstances, to provide similar, though not identical, premises.
101) He also placed reliance on the decisions of the Supreme Court in Satish Chander Ahuja vs. Sneha Ahuja5, and sought to contend that the decision dt. 25.05.2023 of the DV Court, though challenged in Cr. Appeal no.92 of 2023 by the respondent, has persuasive value and can be looked into by this Court though it is not binding on this Court.
102) He also claimed that since the respondent had been awarded interim maintenance of Rs.1.25 lacs per month by the Family Court, New Delhi, on 15.09.2023, there is no necessity for the appellant to provide any household for the residence since the right of 4 (2022) 1 SCC 683 5 (2021) 1 SCC 414 ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 36 maintenance includes the right of residence as well as per provisions of the Hindu Adoption and Maintenance Act, 1956.
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103) He contended that the appellant is willing to pay the rent of any house which the respondent chooses to take on rent in Shimla, but the Court should not allow her to stay in the Knollswood residence at Shimla with him.
of Contentions of counsel for respondent
104) Sri Neeraj Gupta, Senior Counsel appearing for the respondent rt refuted the said contentions and pointed out that the instant appeal is against an interim order passed under Order 39 Rule 1 & 2 C.P.C.;
that its scope is limited and the respondent had refuted in all respects the case set-up by the appellant. He also stated that a deep inquiry into the merits is not warranted at this stage and both parties need to prove their respective allegations against each-other in the trial.
105) He stated that the foundation of the appeal would be the plaint filed in the suit and that several of the arguments addressed by the appellant's counsel were beyond the pleadings in the plaint.
106) He stated that the argument raised by the counsel for the appellant about alleged land grabbing, greedy intent of the respondent-wife do not find any mention in the plaint, and the plaint only refers to ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 37 events which happened on 18.04.2023 and removal of certain furniture by the respondent.
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107) He also stated that between the date of marriage of the parties on 18.03.2009 till 18.04.2023, the appellant had not filed any complaint or proceeding against the respondent making any allegations of misbehavior, cruelty, ill-treatment etc. and all these of contentions are suddenly being urged in this appeal for the first time and they cannot be looked into.
rt
108) It is stated that the question to be considered in this appeal is the right of the respondent to reside in the shared household with dignity and honour, commensurate to her status as the wife of the appellant; and since the plaintiff-appellant himself admitted at more than one place in the plaint that the Knollswood home at Shimla is a shared household and specifically admitted that the respondent is living with him therein on the date of filing of the suit, he could not have sought relief of temporary injunction restraining the respondent-defendant from entering the premises, and he could only have sought eviction or a mandatory injunction to evict the respondent.
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 38109) He placed reliance on Section 2(s) of the DV Act, which provides for the right of a wife to live in a shared household with the husband .
and prayed that the appeal be dismissed.
110) He contended that because the appellant had rented out the other shared household of the parties at House no.3A, Sardar Patel Marg, Chanakayapuri, New Delhi, the only alternative shared household of available to her for residence was Knollswood Estate, Chhota Shimla, Himachal Pradesh and so the order passed by this Court on rt 19.05.2023, should be vacated because it would defeat the right of the respondent to claim relief of residence under Section 17 of the DV Act.
111) He stated that in view of Section 26 of the DV Act, there is no bar to the respondent to claim relief in the Civil Court or in the Criminal Court, as the relief which can be sought under the DV Act is in addition to what a person can claim in a civil suit or before a Civil Court or in a proceeding before a Criminal Court.
112) He stated that the conduct of the appellant is such that he is disentitled to equitable relief.
113) He contended that the outhouse of the Knollswood Estate, Chota Shimla which is offered by the appellant for the stay of the respondent as an alternate residence (which is said to be located ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 39 within the premises of Knollswood Estate, Chhota Shimla) adjoins the servant quarters; that its structure was in a bad and unlivable .
condition, that it has only two small shabby rooms without a kitchen, and it is open to the appellant to shift to the said outhouse, if he considers it suitable to occupy.
114) Senior Counsel placed reliance on the judgment of the Supreme of Court in Prabha Tyagi vs. Kamlesh Devi6 and contended that the effect of granting a temporary injunction pending this FAO/ the suit rt restraining her from entering the shared household in the instant case would defeat a right conferred on her by Section 17 of the DV Act.
Consideration by the Court.
115) We have noted the contentions of both sides.
116) The admitted facts are that the respondent is as on date the legally wedded wife of the appellant since 18.03.2009.
117) In Para-2 of the plaint, the appellant had admitted that the parties were living not only at House no.3A, Sardar Patel Marg, New Delhi, but also at Knollswood Estate, Shimla East, Himachal Pradesh. He has also admitted in Para-17 of the plaint that he had rented out premises House no.3A, Sardar Patel Marg, New Delhi.
6(2022) 8 SCC 90 ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 40
118) The appellant had admitted in Para-21 that he had shifted the personal belongings of the respondent from the main house in .
Knollswood Estate, Chhota Shimla, to an outhouse, so that he can live independently of her, but after the incident alleged to have occurred on 18.04.2023, he had permitted the respondent to enter the house and she had again shifted back her personal belongings of to the main house from the outhouse.
119) In Para-22 of the plaint also, he again admitted that the respondent rt was inside the said house in Knollswood Estate, Chhota Shimla.
120) This is also reiterated in Para-30 of the plaint, where it is specifically asserted by the appellant that he and the respondent are currently residing in Knollswood, Chhota Shimla.
121) Once the appellant admitted the joint possession of the respondent of the Main house at Knollswood Estate on the date of filing of the suit i.e., 28.4.2023, prima facie he cannot seek relief of an interim injunction pending suit to restrain her from entering the same. Such an interim relief cannot be granted at all to exclude the respondent in settled possession of the said premises.
122) The Supreme Court in Mangat Mal (Dead) and Another vs. Punni Devi (Dead) and Others7 has held that right of maintenance of a 7 (1995) 6 SCC 88 ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 41 Hindu wife encompasses the provision for residence, and that maintenance is given so that lady can live in the manner more or .
less to which she was accustomed; and, therefore, includes provisions for food and clothing and the like and take into account the basic need of a roof over the head. It held that provision for residence may be made either by giving a lump sum in money or of property in lieu thereof. It may also be made by providing for the course of the lady's life, a residence and money for other necessary rt expenditure.
123) In B.P. Acahla Anand vs. S Appi Reddy and Another8, the Supreme Court emphasized the right of residence of a wife and after considering several decisions held that a Hindu Wife is entitled to be maintained by her husband and is entitled to remain under his roof and protection; she is also entitled to a separate residence, if by a reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. It reiterated that right to residence is a part and parcel of the wife's right to maintenance and such a right to maintenance cannot be defeated by the husband executing a Will to defeat such a right.
8(2005) 3 SCC 313 ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 42 It reiterated that the said right had come to be statutorily recognized in the Hindu Adoption and Maintenance Act, 1956 .
and Section 18 of the said Act provides for maintenance of the wife and such maintenance is defined in clause (b) of Section 3 of the said statute as to include therein provision for residence amongst other things, and that for the purpose of maintenance, of the "term wife"' includes the divorced wife.
It quoted in Para-14, a passage from the Book "The Due rt Process of Law" by Lord Denning (London, Butterworths, 1980, at Page 212) that a wife is no longer her husband's chattel, and the husband can no longer turn her out of the matrimonial home; and she has as much right as he to stay there even though the house does stand in his name.
It declared that in India, the right to maintenance arises out of the status as a wife; that maintenance of wife by the husband is a personal obligation upon him arising from the existence of the relations.
The Court declared that the right comes to an end with the wife losing her status as a wife consequent upon decree of divorce and the right to occupy the house as part of right to ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 43 maintenance also comes to an end in such an event, though the status of a divorced wife stands on a different footing.
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124) In tune with these legal principles, Parliament had enacted the Protection of Women from Domestic Violence Act, 2005( for short "the DV Act") which came into force on 26.10.2006.
125) Section 2(f) defines a "domestic relationship" and includes a of relationship created by marriage or even a relationship in the nature of marriage. rt
126) Section 2(s) of the said Act states as under:-
" (s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household."
127) Inter-alia, Section 17 provides for a right of residence to every woman in a domestic relationship irrespective of whether she has ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 44 any right, title or beneficial interest in it and protects such woman from eviction or exclusion from the shared household save in .
accordance with the procedure established by law.
128) In Prabha Tyagi ( 6 Supra), the Supreme Court declared that the definition of "shared household" in Section 2(s) of the DV Act is an inclusive definition; that Section 17 thereof confers a right on every of woman in a domestic relationship to reside in the shared household irrespective of whether she has any right, title or beneficial interest rt in the same; that this a vital and significant right; and sub-Section (2) of Section 17 protects an aggrieved person from being evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
The Supreme Court held that such a right is a significant right of every woman in a domestic relationship; a woman cannot be excluded from the shared household even if she has not actually resided therein and that is why the expression "shall not be evicted or excluded from the shared household", has been intentionally used in sub-Section (2) of Section 17 of the DV Act.
129) Thus it cannot be disputed that the respondent has a statutorily recognized right to reside in the shared household in main house at ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 45 Knollswood Estate more so when existence of marital relationship is admitted by the appellant and her presence on the date of filing of .
the suit has been admitted by the appellant in several places in the plaint itself as set out above.
130) The question is whether such a right conferred on her can be allowed to be defeated by the appellant by recourse to a Civil Court of and seek and obtain an interim relief to defeat it. Prima facie, we think not, at pre-trial stage when the allegations made against each rt other are yet to be proved.
131) From a reading of the plaint, it appears that prior to 18.4.2023, no complaints had been lodged to any authority/forum by the appellant against the respondent from the time the parties had got married in March,2009.
132) The trigger for the litigation appears to be the incident on 18.04.2023 at main house at Knollswood estate, Chota Shimla and each party accuses the other of trying to exclude the other from the said house by force. They also dispute the version pleaded by the other party and the manner in which the said incident occurred.
These have to be proved by them in their evidence during trial.
133) On the same day, both parties are said to have made complaints against each-other with the Police Station, Chhota Shimla (East).
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 46134) On 28.4.2023, the date of filing of the suit C.S.No.5/2023 by the appellant against the respondent, the respondent had also lodged a .
complaint against the appellant being Complaint no.20 of 2023, seeking protection from being ousted from the shared household.
135) This complaint was taken up on 29.04.2023, on which counsel Shri of Arjun Lall and Shri Sanjay Kumar, counsel for the appellant, filed Power of Attorney and the matter was adjourned to 12 th of May, 2023.
rt
136) However, the Order 39 Rule 1 & 2 CPC application filed by the appellant, being CMP no.77-S/6 of 2023 (in C.S. no.5 of 2023) was taken up on 01.05.2023.
137) The very same counsel for the appellant mentioned above (who appeared in the Complaint no.20 of 2023 on 29.04.2023 and represented the appellant therein ) also represented the appellant in this application under Or.39 Rule 1 and 2 CPC, but they do not appear to have apprised the Family Court of the filing of the said complaint under the DV Act by the respondent against the appellant.
138) Though Senior Counsel for the appellant asserts otherwise, the same is not backed by any material. There is no mention of this fact in the order dt.1.5.2023 passed by the District Judge (Family Court) in this ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 47 application under Or.39 Rule 1 and 2 CPC while granting exparte ad interim injunction against the respondent prohibiting her from .
entering the main house at Knollswood.
139) So it has to be taken that the appellant suppressed the factum of the respondent filing DV Complaint No.20 of 2023 seeking protection of her share household in the main house of Knollswood estate, of Chota Shimla and other reliefs. Such conduct disentitles him to equitable relief such as injunctive relief.
rt
140) As we have pointed out earlier since the Family Court was passing an ex-parte injunction, it was also duty bound to follow proviso to Order 39 Rule 3 C.P.C., as held in the decision of Shiv Kumar Chadha (supra-1). This vitiates the said interim order.
141) It has also not chosen to advert to the existence of prima facie case in favour of the appellant or existence of balance of convenience in his favour or that irreparable injury would be caused to him, if such ex-parte injunction was not granted on that day. The decision in Seema Arshad Zaheer and Ors ( 2 supra) has already been referred to. This too vitiates the said interim order.
142) More importantly, it had omitted to take note of the admission at more than one place in the plaint filed by the appellant himself that ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 48 the respondent was living alongwith him in the Knollswood Estate, Chota Shimla.
143) Taking advantage of these infirmities in the said order passed on .
01.05.2023, the appellant succeeded in excluding the respondent from the said premises.
144) We are of the prima facie view that in the facts & circumstances of of the case, due process of law has not been followed for excluding the respondent from the shared household and that her possession rt should be maintained in the light of the admitted legal position that a wife is entitled to residence in the shared household.
145) No doubt, the maintainability of the instant FAO has been declared by this Court in an order passed on 28.08.2023 and challenge thereto by the respondent as also the order dt.19.5.2023 of this Court before the Supreme Court was not successful in SLP (Civil) Diary no.39005 of 2023 dt. 10.10.2023. The Supreme Court passed the following order:-
"Delay condoned.
Having heard the learned senior counsel for the petitioner though, at this stage, we see no reason to interfere with the impugned order considering the fact that the appeal is still pending before the High Court and what is assailed is an ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 49 interim order, we however, request the High Court to consider the appeal pending before it as expeditiously as possible.
.
However, if the appeal cannot be disposed of on its merits within a short period of time, the High Court may also hear the parties and consider as to whether any other interim arrangement is required to be made in the matter.
Petition(s) stands disposed of along with the pending of application(s), if any."
146) The said order means that at that stage the Supreme Court did not rt think it fit to go into the correctness of the orders dt. 19.05.2023 and 28.08.2023, but did not preclude this Court from going into the correctness of either of them in this appeal.
147) The preparation on 18.5.2023 itself (a day before the impugned order was passed on 19.5.2023 by the District Judge (Family Court) of (i) grounds of appeal in this FAO (without seeing the contents of the yet to be pronounced order) (ii) the CMP no.5943 of 2023 seeking stay of the operation of the impugned order of 19.05.2023 (not yet passed) (iii) CMP no.5944 of 2023 seeking leave/permission of the Court to prefer the appeal on the basis of gist of the impugned order of 19.05.2023 allegedly claimed as pronounced and heard ( but which in fact was to be pronounced the next day on 19.5.2023.), [CMP no.5943 of 2023 and CMP no.5944 ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 50 of 2023 were got attested before an Oaths Commissioner on 18.5.2023] shows the dubious and desperate attempt by the .
appellant to somehow or the other ensure that the respondent continues to be excluded from the shared household at Knollswood Estate, Chota Shimla. We strongly deprecate this sharp practice of the appellant.
of
148) In our prima facie view, asking the respondent to live in the outhouse of Knollswood Estate, Chhota Shimla and not the main rt house while the appellant lives in the main house, would prima facie affect the dignity & honour of the respondent in the light of the pleas raised by the respondent regarding the condition of the said building and more particularly in the light of the proceedings initiated by the Municipal Corporation, Shimla in respect of certain construction activity being undertaken by the appellant therein, which might make the stay of the respondent therein risky. So the appellant cannot insist on the respondent's staying in the outhouse of Knollswood Estate, prima facie.
149) Counsel for the appellant sought to place reliance on the order dt.
25.05.2023 of the Additional Chief Judicial Magistrate, Shimla adverse to the respondent and certain findings recorded therein, and ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 51 sought to persuade us to hold in favour of the appellant on the basis of the said order.
.
150) The said order is admittedly under challenge in Cr. Appeal no.92 of 2023 and final order passed therein has not been brought to the notice of this Court. Since it has not attained finality, we refrain from relying on it.
of
151) The Supreme Court had an occasion to consider the affect of orders passed by a Criminal Court under the DV Act, 2005 on civil rt proceedings in Satish Chander Ahuja (5 supra ) cited by the counsel for the appellant. It laid down at Para 166, the following principles:
"166.1 The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject- matter of order interim or final passed in proceedings under DV Act, 2005.
166.2 The judgment or order of criminal court granting an interim or final relief under Section 19 of DV Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.::: Downloaded on - 27/12/2023 20:34:06 :::CIS 52
166.3 A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.
.
166.4 In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be of addressed and decided on the basis of evidence, which is led by the parties in the suit." ( emphasis supplied)
152) One of the principles laid down is that the Civil Court is to rt determine issues in civil proceedings on the basis of evidence, which has been led by the parties before the Civil Court. So though the judgment or order of a Criminal Court granting an interim or final relief under Section 19 of DV Act are "relevant" within the meaning of Section 43 of the Evidence Act,1872, and they can be referred to and looked into by the Civil Court, but the decision of the Criminal Court in the DV case does not bind the Civil Court or this Court.
153) In the absence of a pleading by the parties on the lines which was raised in the said DV case, it would not be permissible for this Court to take note of what happened there, and ignore the mandate of law that the Civil Court has to determine the issues in civil proceedings on the basis of evidence which has been led by the parties before the ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 53 Civil Court, since such evidence can only be led on the basis of the pleadings raised in the Civil Court.
154) The Additional Chief Judicial Magistrate expressed a view that the .
offer of the appellant of alternative accommodation made to the respondent is a reasonable offer which was required to be accepted by the respondent on the basis of the judgment in Jaidev Rajnikant of Shroff (4 supra).
155) Having regard to our prima facie findings that respondent has a right rt of residence in the shared household at Knollswood Estate, Chota Shimla as per law, that the conduct of the appellant is dubious and it disentitles him to equitable relief, and when there does not appear to have been any complaints made by each party against the other from 18.3.2009 to 18.4.2023, this is not a fit case to apply the ratio of the judgment in Jaidev Rajnikant Shroff (4 supra) at this stage.
156) The observations in Jaidev Rajnikant Shroff 's case (4 supra), have to be understood in the light of the facts & circumstances mentioned therein i.e, that final orders had been passed by the Family Court in that case. It cannot be applied at an interim stage where there are disputed questions of fact yet to be proved.
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 54157) So the threat to physical and mental health of the appellant cannot be said to be so grave that the respondent cannot be allowed to live .
in the shared household at Knollswood Estate at Shimla.
158) The fact that the relationship between the parties is strained does not automatically mean that it is the wife ( respondent) who should be made to leave the shared household and live in an outhouse, while of the husband (appellant), who is also accused by the wife of ill-
treatment, enjoys the luxurious life style in the main house at rt Knollswood Estate, Chhota Shimla prima facie.
159) Since the appellant is a very wealthy man from what is admitted by himself in the plaint, nothing prevents him, at this stage, from moving out of the shared household at Knollswood Estate, Chota Shimla and live elsewhere, if he wishes to avoid living with the respondent.
160) The Family Court also recorded that the appellant had received Rs.4.50 crores of money from the respondent and the plea of the appellant about sale of properties made by him allegedly at the instance of the respondent and the respondent receiving substantial amount from him, needs to be established.
161) Though the appellant has raised pleas of certain transfers of properties and money having been made in favor of the ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 55 respondent, these are not uncommon between a married couple in order to draw even a prima facie conclusion that the .
respondent had married the appellant only for his wealth, which fact is seriously disputed by the respondent, and which allegation is not made in the plaint.
162) The Family Court had referred to some of the documents placed of on record, such as Settlement deeds, General Power of Attorney and Will executed by the respondent in favour of the appellant rt and had recorded a prima facie finding that it was the appellant who was managing the property, though technically there was a transfer in the name of the wife, which finding is not controverted in the contentions raised by the counsel for the appellant.
163) The plea of the counsel for the appellant that he is paying Rs.1,25,000/- pm from 15.9.2023 to the appellant as maintenance on account of an order passed Hindu ADP.No.2 of 2023 by the Principal Judge, Family Court , Patiala House, New Delhi and so the respondent need not be given any residence by him, cannot be accepted, considering the admitted financial position of the appellant and his conduct noted in this order. The concept of maintenance no doubt covers residence, but that does ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 56 not mean that providing one to the wife absolves the husband of giving the other.
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164) After considering the material on record we are of the opinion that there are no grounds to interfere with the order dt.19.5.2023 passed by the District Judge (Family Court), Shimla vacating the temporary ex parte injunction granted to the appellant and of dismissing the application under or.39 Rule 1 and 2 CPC.
165) In S. Prabhavathi vs. Rohini Kilaru & Anr.9, a learned Single rt Judge of the Andhra Pradesh High Court held that restitutionary law has many branches, that restitutionary claims can also be founded on Section 151 CPC to do complete justice between the parties and not necessarily only on Section 144 CPC alone; that such power can be exercised even in interlocutory matters and when a party to the proceeding in the guise of an ex-parte order gets an undue advantage to which he was not entitled to when the case was not filed, and that it is the duty of the Court to place the parties in the position which they would have occupied but for the order of the Court.
166) In Cheni Chenchaiah vs. Shaik Ali Saheb & Others10, it was held that where possession has been taken forcibly by a party 9 Manu/AP/0576/2006 = 2006(5) Andhra Law Times 264) 10 (1993) 2 ALT 517 ::: Downloaded on - 27/12/2023 20:34:06 :::CIS 57 during pendency of proceedings, the Court would be justified to do justice and put back the parties in the same position in which .
they were, but for the order of the trial Court by invoking the inherent jurisdiction.
167) Similar view was also taken in Kavita Trehan & Another vs. Balsara Hygience Products Ltd.11 by the Supreme Court. It of reiterated that the law of restoration of loss or damage caused pursuant to judicial orders, is based on the principle that an act of rt Court does no injury to any of the suitors. It upheld the view of the Delhi High Court that a party who has received benefit under erroneous order of the court must restore to the other party what the latter lost as a result of the said order on the same being reversed or set aside. It declared :
"22. The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144....
23.... Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be undone to the extent possible."11
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168) So in exercise of the powers conferred on this Court under Section 151 CPC we direct the appellant to put the respondent forthwith in .
possession of the main house at Knollswood Estate, Chhota Shimla.
169) Having regard to the conduct of the appellant, which we have adverted to, we are of the opinion that the choice given by the appellant to the respondent to live anywhere else in Shimla cannot be of considered at this stage, and he himself can avail the said choice by living anywhere else he wants.
170) rt For all the aforesaid reasons the FAO is dismissed; CMP no.7242 of 2023 is allowed and the interim order dt. 19.05.2023 is vacated; and order dt. 19.05.2023 of the District Judge, Family Court, Shimla is upheld; the appellant shall put the respondent forthwith in possession of the main house at Knollswood Estate, Chhota Shimla.
171) Consequently,
(i) CMP no.5943 of 2023 filed by the appellant to stay the operation of the order dt. 19.05.2023 passed by the District Judge, Family Court, Shimla is dismissed.
(ii) CMP no.5944 of 2023 filed by the appellant on 19.05.2023 to entertain the appeal in the absence of the impugned order is allowed since the appeal was already entertained and the copy of the order was placed on record subsequently.
::: Downloaded on - 27/12/2023 20:34:06 :::CIS 59(iii) CMP no.5945 of 2023, an application for leave/exemption from filing legible copies of photographs etc., is allowed as not opposed.
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(iv) CMP no.6282 of 2023 to place on record the certified copy of the impugned order dt. 19.05.2023, is allowed.
(v) CMP no.6501 of 2023 filed by the appellant to of prosecute the respondent for filing false affidavit, is dismissed.
(vi) CMP no.6502 of 2023 filed by the appellant to place rt on record certain additional grounds of appeal, is allowed.
(vii) CMP no.7359 of 2023 is dismissed.
(viii) The appellant shall pay costs of Rs.25,000/- to the respondent in 4 weeks.
It is made clear that all the conclusions/observations recorded in this order are prima facie in nature and the suit shall be decided independently without being influenced by these conclusions/ observations.
(M.S. Ramachandra Rao)
Chief Justice
(Jyotsna Rewal Dua)
December 27, 2023 Judge
(yashwant)
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of
rt
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