RSA 42/2016. Case: Anukriti Dubey Vs Partha Kansabanik and Ors.. High Court of Delhi (India)
| Case Number | RSA 42/2016 |
| Counsel | For Appellant: Indira Unninayar, Nina Bhalla and Narayan Krishan, Advocates and For Respondents: Manish Vashisht and Amit Kumar Thakur, Advocates |
| Judges | Ashutosh Kumar, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XII Rule 6; Constitution of India - Article 142; Hindu Adoptions and Maintenance Act, 1956 - Section 18; Protection of Women from Domestic Violence Act, 2005 - Sections 10, 12, 17, 18, 19, 20, 21, 2, 2(q), 2(s), 22, 26, 26(3), 26(1), 26(2), 36; Transfer of Property Act, 1882 - Section 106 |
| Judgement Date | March 23, 2016 |
| Court | High Court of Delhi (India) |
Judgment:
Ashutosh Kumar, J.
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Heard the counsel for the parties.
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The present second appeal arises out of judgment and order dated 30.01.2016 passed by the Additional District Judge-2, South West District, Dwarka Courts, Delhi in RCA No. 34/2015 whereby the judgment and decree of the Trial Court dated 30.09.2015 in CS(OS) No. 133/2015, allowing the suit of the respondent No. 1 under Order 12 Rule 6 of the CPC, thereby entitling respondent No. 1 to recover possession of the suit property from the appellant, was affirmed and upheld by the Appellate Court.
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The respondent No. 1 filed a suit bearing CS(OS) No. 133/2015 for a decree of possession and eviction in his favour and against the appellant/defendant No. 2 and respondent No. 2 (husband of the appellant) in respect of suit property No. F-71, DG(S) Apartments, Plot No. 6, Sector 22, Dwarka, New Delhi as well as for mesne profits. The case of the respondent No. 1/plaintiff before the Trial Court was that he is the landlord and absolute owner of the property referred to above (hereinafter called the suit property), where husband of the appellant was inducted as a tenant on a monthly rental of Rs. 15,500/-. A tripartite agreement was executed with respect to the suit property for a period of 11 months, commencing from 15.03.2014, which agreement/lease expired on 15.02.2015. The respondent No. 1/plaintiff, after the expiry of the lease deed, expressed his unwillingness to continue the tenancy of the husband of the appellant and wanted them (appellant and respondent No. 2) to vacate the suit property. Despite repeated requests and a legal notice dated 07.05.2015 to the husband of the appellant, a copy of which was sent to the appellant as well, the suit property was not vacated. Instead, the appellant sent a notice to respondent No. 1/plaintiff intimating him that the suit property would not be vacated because of matrimonial dispute between the appellant and her husband. A request also was made to continue the tenancy. The aforesaid notice was replied by the respondent no. 1/plaintiff in the negative.
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Hence the aforesaid suit for eviction, possession and recovery of mesne profits and damages.
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The husband of the appellant who was original defendant No. 1 in the suit, filed his written statement stating that the possession of the suit property could not be handed over to the plaintiff as it was in sole possession of the appellant (defendant no. 2) since September, 2014. It was also averred that all the dues till 14th of March, 2015, as agreed upon between the plaintiff and him vide email dated 10.02.2015 was paid. The plaintiff himself had given one month time to the respondent No. 2/defendant No. 1 for vacating the property.
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The appellant (defendant No. 2 in the original suit) contested the suit on the ground that she was a wife in distress who had been deserted by her husband/defendant No. 1, who had left the shared tenanted household i.e. suit property for which a complaint dated 14.09.2014 was made to the SHO, Sector 23 Dwarka police station. It was also stated by the appellant in her written statement that several civil and criminal litigations were pending between her and her husband, including a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005, which is pending adjudication before the Dwarka District Courts. In the aforesaid proceeding, the relief sought by the appellant/defendant No. 2 for restraining her husband from dispossessing her till she moved into the jointly owned flat in Greater Noida and/or direction to her husband to pay rent and other dues till she was able to shift and remove her belongings to her jointly owned flat at Noida and for protection of her belongings till then, was rejected on the ground that it was for the landlord, in the event of the expiration of the lease of agreement, to consent for a fresh lease or agreement for continuing with the tenancy. The Domestic Violence Court expressed its inability and unwillingness to grant such interim relief as against a landlord who was not a party in the aforesaid proceeding under the Domestic Violence Act.
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On the basis of the pleadings, the Trial Court vide judgment dated 30.09.2015, decreed the suit under Order 12 Rule 6 of the CPC holding that the appellant/defendant No. 2 who was the main contestant, admitted the existence of landlord-tenant relationship as also of the expiration/termination of the tenancy.
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The Trial Court took note of the fact that for a landlord to maintain a suit for possession, what was required to be proved was: (i) the relationship of landlord and tenant between the parties; (ii) termination of tenancy by lapse of time or a notice under Section 106 of the Transfer of Property Act and (iii) the suit property ought not to have been governed by the provision of Delhi Rent Control Act, 1958. Taking the pleadings of the parties which amounted to an admission of the tenancy at the rate of Rs. 15,500 per month, which expired and the unwillingness of the respondent No. 1/plaintiff to continue or extend the tenancy, the suit was decreed under Order 12 Rule 6 CPC.
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The appellant challenged the aforesaid judgment and decree of the Trial Court vide RCA No. 34/2015 on the ground that the suit of eviction and possession was misused, solely for the purposes of ousting the appellant/defendant No. 2 from the suit property which was the matrimonial home/shared household and thus she was divested of her Constitutional as well as statutory right of residence and shelter. The stand of the appellant before the Trial Court was that he was entitled to any one of the reliefs under Sections 19 to 21 of the Domestic Violence Act and such relief could be sought by her before any court as per Section 26(1) of the Domestic Violence Act. The appellant raised the issue that under Section 26(2) of the Domestic Violence Act, the relief sought by her to continue in the tenanted household ought to have been granted in addition to or along with any other relief.
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The appellant further contented that Section 26 (3) of the D.V. Act makes it very clear that the reliefs could be granted before any other civil or criminal courts. The Section is not restrictive but is wide enough not to limit the application of the same where "aggrieved person" and "respondent" are parties but includes any proceeding affecting either of them.
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The Trial Court, according to the appellant, wrongly interpreted the relief sought by her as one seeking to continue the tenancy. She never sought such relief but had only prayed for her being given temporary protection, respite and relief by way of directing her husband to make payment of rent and arrears till she was granted a residence right/alternate residence.
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The case of the appellant is that both the courts below did not take into account the law laid down by the Supreme Court in B.P. Achala Anand vs. S.Appi Reddy and Anr., 2005(3) SCC 313 which mandated that a Hindu wife is entitled to be maintained by her husband under the same roof and such rights of maintenance could not be defeated by taking it away through any other mechanism of law.
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