Civil Appeal No. 6448 of 2017 (Arising out of SLP (C) No. 24045 of 2016). Case: Vaishali Abhimanyu Joshi Vs Nanasaheb Gopal Joshi. Supreme Court (India)
| Case Number | Civil Appeal No. 6448 of 2017 (Arising out of SLP (C) No. 24045 of 2016) |
| Judges | A.K. Sikri and Ashok Bhushan, JJ. |
| Issue | Protection of Women from Domestic Violence Act, 2005 - Sections 2, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 26(1), 27, 28, 29; Provincial Small Cause Courts Act, 1887 - Sections 3, 5, 12, 15, 18, 19, 20, 21, 22, 26, 26(1), 26(2), 26A, 26B, 26C; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947; Bombay Government ... |
| Judgement Date | May 09, 2017 |
| Court | Supreme Court (India) |
Judgment:
Ashok Bhushan, J.
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Leave granted.
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This appeal raises an important question pertaining to interpretation of Section 26 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "Act, 2005") qua the Provincial Small Cause Courts Act, 1887 (hereinafter to referred to as "Act, 1887") as amended in the State of Maharashtra. The question is as to whether counter claim by the Appellant seeking right Under Section 19 of Act, 2005 can be entertained in a suit filed against her Under Section 26 of Act, 1887 seeking a mandatory injunction directing her to stop using the suit flat and to remove her belongings therefrom.
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This appeal has been filed challenging the judgment dated 7th July, 2016 of High Court of Judicature at Bombay in Writ Petition No. 1550 of 2016 by which the writ petition filed by the Appellant questioning the judgment and order of 5th Additional Judge, Small Causes Court dated 5th November, 2014 and order passed by the District Judge, Pune dated 17th December, 2015 was dismissed.
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Necessary facts of the case need to be noted for deciding the issue raised are:
The Appellant got married with one Abhimanyu who is son of the Respondent on 10.02.2000. The Appellant started residing in the suit flat No. 4, 45/4, Arati Society Shilavihar Colony, Paud Fata, Pune since 2004 alongwith her husband. The flat was allotted to the Respondent by the Society in the year 1971. On 13th June, 2011, the husband of Appellant left her at the suit flat and shifted to live with his parent at Mrutunjay Society. A daughter, namely, Ishwari was born from the wedlock of the Appellant and the Abhimanyu, who was about 9 years in the year 2014. The Respondent along with his wife had been residing in another flat nearby. The Appellant was treated with cruelty by her husband and other members of the family. A suit for divorce on the basis of cruelty being P.A. No. 23/2011 was filed by the Appellant against her husband. A notice was sent on behalf of the Respondent to the Appellant on 23.01.2013 revoking the gratuitous licence and asking the Appellant to stop the use and occupation of the suit flat. The Appellant replied the notice. The Respondent filed Suit No. 77/2013 in the Small Causes Court, Pune seeking for following reliefs:
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By an order of mandatory injunction the Defendant may be directed to stop the use and occupation of the suit flat and remove her belongings therefrom.
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The Defendant may be restrained by an order of perpetual prohibitory injunction from using/occupying the suit flat.
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The Defendant may be restrained by an order of perpetual prohibitory injunction from obstructing the Plaintiff and his family members to possess, use and occupy the suit flat.
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Interim orders in terms of Clause A, B, C above may be passed.
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Costs of the suit may be awarded to the Plaintiff from the Defendant.
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Any other just and other equitable orders in the interest of justice may please be passed.
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The Appellant filed a written statement in the suit pleading that she was residing in the suit flat since 26.01.2004 along with her husband and daughter. Her husband who was also residing along with her left her on 13.06.2011 to live with the Respondent, It. was pleaded that suit flat was intended to be used by the joint family as a joint family property and although the agreement of purchase of the suit flat bears the name of the Respondent, the suit flat has been used as joint family property. The allegation that Respondent is the sole owner of the flat was denied. In her written statement a counter claim was also laid by the Appellant. In the counter claim following reliefs have been claimed by the Appellant:
i. The suit & injunction application at Exh. 5 of the Plaintiff may kindly be dismissed with heavy costs.
ii. It may be declared that the suit flat is ' the shared household.
iii. The Plaintiff, his agents, representatives, relatives or anyone claiming through him may kindly be restrained by an injunction from dispossessing, disturbing the possession of the Defendant in any manner from the suit flat, as per Section 19 of D.V. Act.
iv. The Plaintiff, his agents, representatives, relatives or anyone claiming through him may kindly be restrained by an injunction from entering in the suit flat as per Section 19 of DV Act.
v. The Plaintiff, his agents, representatives, relatives or anyone claiming through him may kindly be restrained by an injunction from alienating, disposing off, encumbering the suit flat and/or creating any of third party right, title and interest in the suit flat, or renouncing the rights in the suit flat as per Section 19 of DV Act.
vi. Any other order in the interest of justice and equity may kindly be passed in favour of the Defendant and oblige.
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In the counter claim the Appellant prayed for an order of residence in suit flat Under Section 19 of the Act, 2005.
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The Respondent who was the Plaintiff in the suit has filed an application dated 14.07.2014 Under Section 9A (Maharashtra Amendment) of the Code of Civil Procedure, 1908. In the application, the Respondent claimed that declaration sought by the Appellant in the suit is not maintainable, hence, a preliminary issue Under Section 9A of Code of Civil Procedure be framed. The application was objected by the Appellant by filing objection on 16.08.2014. The Appellant claimed that since she has been subjected to domestic violence she is entitled for the reliefs sought by way of counter claim as provided in the Act, 2005. It was contended that the reliefs sought by way of counter claim are not barred as per Section 15 of Act, 1887. The trial court framed preliminary issue "as to whether the Court has jurisdiction to entertain the counter claim". Judge Small Causes Court by its judgment and order dated 05.11.2014 held that Court has no jurisdiction to entertain the counter claim. Revision was filed against the order passed by the Small Causes Court before the District Judge. The District Judge rejected the revision on 17.12.2015 which order was challenged by the Appellant by means of writ petition which has been dismissed by judgment dated 07.07.2016. The High Court has held that in view of the express language in Section 15 as also the Second Schedule of Act, 1887, the Small Causes Court constituted under Act, 1887 cannot entertain and try the counter claim. Aggrieved by the order of the High Court, the Appellant has come up in this appeal.
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We have heard Shri Nikhil Majithia, learned Counsel for the Appellant and Shri Vinay Navare, learned Counsel for the Respondent.
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Shri Nikhil Majithia, learned Counsel for the Appellant submitted that courts below erred in law in taking the view that counter claim of the Appellant is barred by the Act, 1887. He submits that Act, 2005 is a special Act which has been enacted to provide various remedies and the special Act shall have overriding effect over Act, 1887. He submits that courts below erred in law in not adverting to this aspect of the matter. Learned Counsel has further placed reliance on Section 3(c) of the Act, 1887. It is submitted that Section 3(c) itself saves applicability of local law or any special law and the Act, 2005 being a special law it will have to be given full effect and Section 3(c) itself carves out an exception. It is submitted that in the event of conflict...
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