Final Order 14

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. PRIGYA GUPTA,
SCJ-cum-RC (NORTH EAST DISTRICT)
KARKARDOOMA COURTS, DELHI
Civil Suit No. 402/2024
CNR No. : DLNE03-000608-2024
Smt. Munni Devi
W/o Sh. Panna Lal
R/o 343, Gali No. 9,
Near Shani Dev Mandir,
Tukmir Pur Extension,
Karawal Nagar, Delhi-110094. ...... Plaintiff
Versus
1. Ms. Anju @ Chander Prabha
W/o Sh. Arvind
D/o Sh. Amar Singh
R/o B-134, Gali No. 2,
Sadatpur Extension,
Delhi-110094
2. The SHO
PS Khajuri Khas,
Delhi-110094 ..... Defendants
Date of Institution of the suit : 15/05/2019
Date of reserving Judgment : 25/02/2025
Date of pronouncement of Judgment : 10/03/2025
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J U D G M E N T
1. Vide this Judgment, I shall dispose of the present suit for
permanent and mandatory injunction filed by the plaintiff against the
defendants.
2. Brief facts of the present suit are that plaintiff is the absolute
legal owner and in physical possession of property bearing H.No. 343, Gali
No. 9, Tukhmir Pur Extension, Near Shani Dev Mandir, Karawal Nagar,
Delhi-110094, Khasra No. 485, measuring area 50 sq. yds., purchased by
her with the help of her husband, which is self acquired property of plaintiff
(hereinafter called the suit property), more specifically shown in blue
colour in site plan.
3. It is the case of the plaintiff that defendant no. 1 is the daughter-
in-law of the plaintiff and defendant no. 2, 3 and 4 are parents and brother
of the defendant no. 1. The marriage between defendant no. 1 and son of
the plaintiff namely Arvind was solemnized on 28.01.2007 in a simple
manner. After the marriage, behaviour and attitude of defendant no. 1 was
very cruel towards the plaintiff as well as her other family members as she
used to quarrel with them on petty issues and some times without any
rhyme and reason. She always used to demand share in the property of the
plaintiff. Defendant no. 2 to 4 were in habit of quarreling and threatening
the plaintiff and her family members to face dire consequences and they
always instigated defendant no. 1 against them.
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4. Plaintiff further averred that she and her family members tried
their best several times to make the defendants understand, but the
defendants did not mend their way and kept harassing, torturing, abusing
and quarreling with the plaintiff and her other family members. Aggrieved
with the same, plaintiff disowned defendant no. 1 and her husband from all
her movable and immovable properties and severed all her relations with
defendant no. 1 and her son in all manners and in this regard the plaintiff
published a public notice in Daily News Paper “Rashtriya Sahara” on
07.08.2012.
5. It is further alleged by plaintiff that thereafter, on 09.10.2012,
defendant no. 1 alongwith her husband shifted on a rented accommodation
at B-134, Gali No. 2, Sadatpur Extension, Delhi, with the help of defendant
no. 2 to 4 and she also took all her belongings, clothes, household articles,
etc. with her. Since then, defendant no. 1 and her husband have been
residing at the aforesaid rented premises. Even though she is residing
separately, defendant no. 1 with the collusion of defendant no. 2 to 4 had
been visiting the suit property and threatening the plaintiff and her family
members to implicate them in false case, if the plaintiff does not give share
in her property.
6. It is further alleged that on 27.04.2019, defendant no. 1 to 4
came at the suit property and tried to enter into the suit property forcibly
and started quarreling with the plaintiff and her family members on the
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issue of alleged share of defendant no. 1 in the suit property qua which
plaintiff gave a written complaint to the SHO, PS New Ashok Nagar, Delhi,
on 27.04.2019, vide DD No. 27-B, but the SHO concerned/ defendant no.
5 did not take any action against them. On 06.05.2019, defendant no. 1 to 4
again came at the suit property and tried to enter the suit property forcibly
and started quarreling with the plaintiff and her family members stating
that “
Agar bhudiya tune property main Anju ko hissa nahi diya to tujhe
jaan se mar denge, ya tere ghar me property dealer se kabja karwa denge”.
Seeing the conduct of the defendants, neighbours also gathered there and
the plaintiff made a call on 100 number, police came at the spot but SHO
concerned/defendant no. 5 did not take any action against them. Plaintiff
also gave a written complaint to the DCP, Distt. North-East, Seelampur,
Delhi, on 07.05.2019, but no action was taken against defendant no. 1 to 4.
Defendant no. 1 to 4 are still threatening the plaintiff to grab the suit
property and on the other hand, defendant no. 5 in collusion with defendant
no. 1 to 4 is not taking any legal action against them. Hence, the present
suit was filed by the plaintiff seeking the following reliefs :
i. Pass a decree for Permanent Injunction in favour of plaintiff and
against the defendant no. 1 to 4 thereby restraining them their
attorneys, assignees, successors in interests, agents, etc. from visiting
the suit property and creating any third party interest in the suit
property i.e. H.No. 343, Gali No. 9, Tukhmir Pur Extension, Near
Shani Dev Mandir, Karawal Nagar, Delhi-110094, Khasra No. 485,
measuring area 50 sq. yds., more specifically shown in blue colour
in site plan.
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ii. Pass a decree for Mandatory Injunction in favour of the plaintiff and
against the defendant no. 5/SHO PS Karawal Nagar, Delhi, thereby
directing him to take appropriate legal action against the defendant
no. 1 to 4, if they further visit the suit property i.e. property bearing
H.No. 343, Gali No. 9, Tukhmir Pur Extension, Near Shani Dev
Mandir, Karawal Nagar, Delhi-110094, Khasra No. 485, measuring
area 50 sq. yds., more specifically shown in blue colour in site plan,
in the interest of justice.
iii.
Any other relief which this court deems fit and proper.
7. Vide order dated 15/05/2019, summons of the suit and notice of the
application were directed to be served upon the defendants and defendant
no. 1 to 4 appeared with Ld. Counsel.
8. It is pertinent to mention here that initially the present suit was
filed by the plaintiff against Ms. Anju @ Chander Prabha (defendant no. 1),
Sh. Amar Singh (defendant no. 2), Smt. Kamla Devi (defendant no. 3), Sh.
Sonu (defendant no. 4) and The SHO, P.S. Khajuri Khas (defendant no.5).
However, on 15/10/2019, joint statement of the defendant no. 2, 3 and 4
was recorded vide which they undertook not to enter in the suit property i.e.
H. No. 343, Gali No. 9, Near Shani Dev Mandir, Tukmir Pur Extension,
Karawal Nagar, Delhi-94 and that they did not have any interest in the said
suit property. Thus vide order dated 15/10/2019, the suit of the plaintiff was
recorded as satisfied qua defendant no. 2, 3 and 4 and they were dropped
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from the array of the parties on the statement of the plaintiff. Thereafter,
plaintiff filed amended memo of parties.
9. In the written statement filed by the defendant no. 1, she denied
the case of the plaintiff and took the defence submitting that the present suit
is not maintainable in the eyes of law; the suit of the plaintiff is without any
cause of action; the suit of the plaintiff is not maintainable as the same
suffers from mis-joinders/non-joinders of the necessary parties; the plaintiff
has no locus standi to file the present suit; the suit is barred by law of
limitation. Rejoinder to the written statement of defendant no. 1 was filed
on behalf of plaintiff denying the averments made in the written statement
and reiterating the facts of the plaint.
10. From the pleadings of the parties, following issues were framed
vide order dated 17/01/2020 and matter was listed for PE:-
(i) Whether the suit of the plaintiff is not maintainable in its present
form? OPD-1.
(ii) Whether the plaintiff has filed the present suit without any cause of
action? OPD-1.
(iii) Whether the suit of the plaintiff is not maintainable for mis-joinder
and non-joinder of necessary parties? OPD-1.
(iv) Whether the plaintiff has no locus standi to claim for the relief of
injunction? OPD-1.
(v) Whether the suit of the plaintiff is barred by limitation? OPD-1.
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(vi) Whether the suit of the plaintiff is not maintainable due to
concealment of facts? OPD-1.
(vii) Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for in prayer clause A? OPP.
(viii) Whether the plaintiff is entitled to the relief of mandatory
injunction as prayed for in prayer clause B? OPP.
11. In order to prove her case, the plaintiff examined herself as PW-1
vide her affidavit Ex. PW1/A wherein she re-iterated and reaffirmed the
contents of the plaint and relied upon the following documents:-
i. Copy of Aadhar Card of plaintiff as Ex.PW1/1 (OSR).
ii. Copy of General Power of Attorney as Ex.PW1/2 (OSR),
iii. Copy of Agreement for Sale as Ex.PW1/3 (OSR),
iv. Copy of Receipt dated 14.04.1997 as Ex.PW1/4 (OSR),
v. Site plan as Ex.PW1/5.
vi. Daily Newspaper Rashtriya Sahara dt. 07.08.2012 as Ex.PW1/6
(OSR),
vii. Complaints dated 27.04.2019 as Ex.PW1/7 and PW1/8 (OSR).
viii. Complaint dt. 07.05.2019 as Ex.PW1/9 (OSR).
12. Plaintiff also examined Smt. Shakuntala Devi as PW2 vide her
affidavit of evidence Ex. PW2/A. She relied upon the following
documents:-
a) Copy of Rent Agreement dated 11/08/2012 – Mark-A.
b) Copy of Rent Agreement dated 01/04/2019 – Mark-B.
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c) Copy of Rent Agreement dated 15/03/2019 – Mark-C.
d) Copy of Rent Agreement dated 15/02/2021 – Ex. PW2/1 (OSR).
e) Copy of Rent Agreement dated 17/02/2022 – Ex. PW2/2 (OSR).
f) Copy of Rent Agreement dated 12/06/2023 – Ex. PW2/3 (OSR).
PW1 and PW2 were duly cross-examined by the Ld. Counsel for
the defendant no. 1. Thereafter, vide order dated 08/05/2024, PE was
closed and matter was listed for DE.
13. In D.E, defendant no. 1 examined herself as DW1 and tendered her
affidavit of evidence as Ex. DW1/1 and she relied upon copy of her Aadhar
Card as Ex. DW1/A (OSR). She was duly cross-examined by Ld. Counsel
for the plaintiff. Thereafter, vide order dated 24/09/2024, DE was closed
and matter was listed for final arguments.
14. I have heard the arguments from both the side and perused the
record carefully.
15. My issue-wise findings are as under:-
Issue No. 1
(i) Whether the suit of the plaintiff is not maintainable in its present
form? OPD-1.
The onus to prove this issue was upon defendant no. 1. It is to be
noted that the issue in question was not pressed for by the Ld. Counsel for
the defendant no. 1. Further, no evidence was brought on record in respect
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to issue no. 1, nor were any arguments advanced on the said issue. It is
further pertinent to observe that no averment was ever made as to how the
suit was not maintainable in its present form. Thus, for want of any
evidence and the fact that the said issue was not pressed for by the Ld.
Counsel for defendant no. 1, the issue no. 1 is decided against the
defendant no. 1 and in favour of the plaintiff.
Issue No. 2
(ii) Whether the plaintiff has filed the present suit without any cause of
action? OPD-1.
16. The onus to prove issue no. 2 was upon the defendant no. 1. The
issue at hand was not pressed for by the Ld. Counsel for defendant no. 1
and no arguments were advanced on the said issue. No evidence was
brought on record by defendant no. 1 in respect to the issue at hand.
Furthermore, it is to be noticed that the present suit has been filed by the
Plaintiff (mother-in-law ) against her daughter-in-law i.e. the defendant no.
1 seeking the relief of permanent injunction to the effect that defendant no.
1 be restrained from visiting the suit property and from creating any third
party interest in the suit property. The plaintiff alleges herself to be the
owner of the suit property and further states that she had permitted the
defendant no. 1 and her husband to reside in her property however, the
behaviour of defendant no. 1 towards the plaintiff and her family members
was very cruel. She further states that she disowned the defendant no. 1 and
her husband and severed all her relations with the defendant no. 1 and her
husband (plaintiff’s son). She further states that the defendant no. 1 along
with her husband shifted on a rented accommodation on 09/10/2012.
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Thereafter on 27/04/2019, the defendant no. 1 along with her family
members tried to forcibly enter into the suit property and created a ruckus
at the suit property which occasioned the necessity to file the present suit.
17. Now, it is not the stand of the defendant no. 1 that she never
visited the suit property or that she does not intend to do so. Defendant no.
1 contests the present suit stating that the suit property is her matrimonial
house and further that the suit property is not the self acquired property of
the plaintiff, but has been purchased from ancestral funds and funds of her
husband. She further alleges collusion between the plaintiff and the
husband of defendant no. 1.
18. Evidently, the defendant no. 1 has made a bald averment in the
written statement that there is no cause of action in favour of the plaintiff to
file the present suit. No evidence has been led by the defendant no. 1 to
show that there is no cause of action in favour of the plaintiff against the
defendants. Cause of action is nothing but a bundle of facts which gives a
right to a litigant to institute legal proceedings against the other party.
Essentially, series of facts culminating into infringement of legal right of a
person which entitles him to seek recourse under the law, is known as a
cause of action. The plaintiff, by way of the facts narrated in the plaint, has
very well disclosed the existence of a cause of action in her favour, more
particularly so when the defendant no. 1 does not dispute the documents
placed on record by the plaintiff and has not claimed any independent
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rights in the suit property. She has further admitted that she visited the suit
property on 27/04/2019.
19. In view of the aforesaid facts, it is quite apparent that the present
suit as filed by the plaintiff against the defendant no. 1 is maintainable and
the plaintiff in fact, has a cause of action accruing in her favour and against
the defendant no. 1.
Therefore, issue no. 2 is decided in favour of the plaintiff and
against the defendant no. 1.
Issue No. 3
(iii) Whether the suit of the plaintiff is not maintainable for mis-joinder
and non-joinder of necessary party? OPD-1.
20. At the outset, it is noted that the issue in question was not pressed
for by the Ld. Counsel for the defendant no. 1. The defendant no. 1 has
made vague and bald averment in the written statement that the suit was not
maintainable for misjoinder and non-joinder of necessary parties. It is not
delineated as to who the defendant no. 1 refers to as necessary party.
Furthermore, no evidence in respect to the issue at hand was brought on
record by defendant no. 1. The issue was also not argued upon by the Ld.
Defence Counsel.
21. It is, however apposite to mention that the husband of defendant
no. 1 was not impleaded as a defendant in the present suit. Before
proceeding further, it is deemed appropriate to refer to the judgment of the
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Hon’ble Apex Court titled as
Satish Chander Ahuja vs Sneha Ahuja
(judgment of the Hon’ble Supreme Court dated 15/10/20 in Civil appeal
no.2483 of 2020) wherein it was held:-
“The general direction issued in paragraph 56(i) is capable of
being misinterpreted. Whether the husband of an aggrieved
person in a particular case needs to be added as plaintiff or
defendant in the suit is a matter, which need to be considered
by the Court taking into consideration all aspects of the
matter. We are, thus, of the view that direction in paragraph
56(i) be not treated as a general direction to the Courts to
implead in all cases the husband of an aggrieved person and it
is the Trial Court which is to exercise the jurisdiction under
Order I Rule 10.“
22. In the present case, the plaintiff has merely sought the relief of
permanent injunction against defendant no. 1 for restraining her from
visiting the suit property. As per the facts of the plaint, the defendant no. 1
shifted to a tenant premises with her husband on 09/10/2012. The
defendant no. 1 in her WS has duly admitted that she was not residing in
the suit property and was residing in a tenant premises. It is admitted by her
in her WS that she had shifted to the tenant premises with her husband in
the year 2012. Further, the plaintiff has specifically alleged that she had
severed all her relations with her son vide publication dated 07/08/2012.
She has specifically stated that it was only the defendant no. 1 who tried to
forcibly enter the suit property along with her family members on
27/04/2019. The husband of defendant no. 1 is thus not a necessary party
to the suit. The issue at hand is accordingly decided against defendant no. 1
and in favour of the plaintiff.
Issue No. 4
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(iv) Whether the plaintiff has no locus standi to claim the relief of
injunction? OPD-1.
23. Again, the issue at hand was not pressed for by defendant no. 1 and
no evidence was led in respect to the issue being discussed. No arguments
on the issue were advanced by the Ld. Defence Counsel. There is merely a
bald averment in the WS that the plaintiff had no locus standi to file the
present suit. The defendant no. 1 has not disputed the fact that the plaintiff
is the owner of the suit property and is in possession of the suit property.
She has not disputed the documents placed on record by the plaintiff, thus,
the plaintiff has very well established her locus to file the present suit. For
want of any evidence, the issue at hand is decided against the defendant no.
1 and in favour of plaintiff.
Issue No. 5
(v) Whether the suit of the plaintiff is barred by limitation? OPD-1.
24. The present issue was also not pressed for by the Ld. Counsel for
the defendant no. 1. At the cost of repetition, it is noted that no evidence in
respect to the issue at hand was led by the defendant no. 1. Arguments in
respect to the issue at hand were also not advanced by Ld. Counsel for the
defendant no. 1. Furthermore, the plaintiff has claimed that the defendant
no. 1 visited the suit premises on 27/04/2019 and created ruckus and
quarreled with the plaintiff. The defendant no. 1, in her WS, has also
admitted that she visited the suit property on 27/04/2019. The plaintiff has
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alleged that the cause of action to file the present suit arose on 27/04/2019
when the defendant no. 1 visited the suit property and created ruckus. The
suit has been filed on 15/05/2019, thus it can safely be said that the suit has
been filed within the period of limitation.
Issue No. 6
(vi) Whether the suit of the plaintiff is not maintainable due to
concealment of facts? OPD-1.
25. The issue at hand was not pressed for by the Ld. Counsel for
defendant no. 1. No arguments where advanced on the issue at hand. No
evidence was led by defendant no. 1 in respect to the issue in consideration.
The issue at hand is accordingly decided against defendant no. 1 and in
favour of the plaintiff.
Issue No. 7
(vii) Whether the plaintiff is entitled to the relief of permanent injunction
as prayed for in prayer clause A? OPP.
26. The onus to prove issue no. 7 was upon the plaintiff. The plaintiff in
order to prove her case examined two witnesses. She deposed as PW1. She
deposed that she is the absolute owner of the property and placed on record
copy of GPA, agreement to sell and receipt executed in her favour as Ex.
PW1/2 (OSR), Ex. PW1/3 (OSR) and Ex. PW1/4 (OSR) respectively. She
claims to be in the physical possession of the suit property.
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27. It is crucial to notice that the defendant no. 1 does not deny the
documents placed on record by the plaintiff i.e. Ex. PW1/2 (OSR), Ex.
PW1/3 (OSR) and Ex. PW1/4 (OSR) but denies the absolute ownership of
the plaintiff solely on the grounds that the property was purchased from
ancestral funds and from the funds of her husband‘s company. She further
denies that the plaintiff is in physical possession of the suit property. The
plea raised by the defendant no. 1 suffers from the vice of vagueness.
Evidently, she does not claim to be the co-owner/joint owner of the suit
property and there is only a bald averment in the WS to the effect that the
suit property was purchased from ancestral funds and from the funds of her
husband‘s company. Having scrutinized the entire evidence brought on
record, it is apparent that not even an iota of evidence has been brought on
record to substantiate the abovesaid plea of the defendant no. 1. The
defendant no. 1, in her evidence, is conspicuously silent in respect to the
ownership of the suit property. She has completely skipped the plea of
ownership in the evidence brought by her. The testimony of the defendant
no. 1 is silent on the details of the alleged ancestral funds which were used
by the plaintiff to purchase the suit property. Further, no evidence in
respect to the alleged funds used by the plaintiff from her husband’s firm
has been brought on record. It is also important to highlight that no
suggestion in respect to the ownership of the suit property was ever put to
the plaintiff during her cross-examination by the Ld. Defence Counsel. No
suggestion was ever put to the effect that the plaintiff was not the absolute
owner of the suit property or that the property was purchased from
ancestral funds or from the funds of her husband’s company. On the
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contrary, a suggestion was put to the plaintiff to the effect that the
defendant no. 1 and her husband were asked by the plaintiff to vacate the
suit property on 09/10/2012. It is crystal clear from the evidence brought on
record that the ownership of the plaintiff is not disputed. The plaintiff has
been able to establish a better title over the suit property. In this regard,
reliance is also placed upon the judgment of the Hon’ble High Court of
Delhi in the case titled as
Sachin and Anr. V. Jhabbu Lal and Anr. AIR
2017 Delhi 1, wherein it was held that:
“
The respondent no.1 and 2/plaintiffs may not have proved themselves
to be the owner of the suit property as may be established in a case of
acquiring title under a registered sale deed but surely they would have
better rights/entitlement to seek possession of the suit property from his
sons who were permitted to live on the first floor only out of love and
affection towards them.
Where the house is self acquired house of the parents, son
whether married or unmarried has no legal right to live in that house
and he can live in that house only at the mercy of his parents upto the
time the parents allow. Merely because the parents have allowed him to
live in the house so long as his relations with the parents were cordial
does not mean that the parents have to bear his burden throughout his
life.”
Reliance is also placed upon the the judgment of the Hon’ble
High Court of Delhi in
Shri Ramesh Chand Vs Suresh Chand & Anr.
(judgment dated 09.12.2012) wherein it was held that :
“12. In view of the aforesaid facts and the validity of the documents,
being the power of attorney and the Will dated 16.5.1996, the
respondent No.1/plaintiff would though not be the classical owner of
the suit property as would an owner be under a duly registered sale
deed, but surely he would have better rights/entitlement of possession of
the suit property than the appellant/defendant No.1. In fact, I would go
to the extent saying that by virtue of para 14 of the judgment of the
Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd.
(supra) taken with the fact that Sh. Kundan Lal has already died, the
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respondent No.1/plaintiff becomes an owner of the property by virtue of
the registered Will dated 16.5.1996. A right to possession of an
immovable property arises not only from a complete ownership right in
the property but having a better title or a better entitlement/right to the
possession of the property than qua the person who is in actual physical
possession thereof.
28. At this stage, it is further pertinent to state that the defendant no. 1
has also resisted the present suit on the ground that the suit property is a
matrimonial home and that the present suit has been filed by the plaintiff in
collusion with the husband of defendant no. 1 in order to deprive her of her
legal rights in the suit property.
29. Firstly, while dealing with the alleged collusion of the plaintiff with
the husband of the defendant no. 1, a perusal of the record would reveal
that the plaintiff had severed all her relations with the defendant no. 1 and
her husband vide publication dated 07/08/2012 in daily newspaper
“Rashtriya Sahara” Ex. PW1/6 (OSR). Admittedly, the defendant no. 1
along with her husband shifted to a rented premises on 09/10/2012. The
defendant no. 1, while deposing as DW1 also duly admitted the fact that
she along with her husband moved to a rented premises on 12/08/2012. She
specifically stated that she visited her matrimonial home/suit property on
festivals or occasions such as family functions etc. It is beyond doubt
established that the defendant no. 1 along with her husband had left the suit
premises and they were living separately from the plaintiff much prior to
the filing of the present suit. As is evident, the present suit has been filed on
14/05/19, whereas the plaintiff had severed all her relations with the
defendant no. 1 and her husband by way of publication on 07/08/2012 and
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the defendant no. 1 and her husband have been living separately since
12/08/2012. Thus, it cannot be said that the present suit has been filed in
collusion with the husband of defendant no. 1. There is nothing produced
on record to prove that the suit has been filed by the plaintiff in collusion
with the husband of the defendant no. 1. It seems highly improbable that
the plaintiff and the husband of the defendant no. 1 pre-planned everything
(in collusion) in the year 2012 in order to deprive the defendant no. 1 of her
rights by way of present suit that has been filed in the year 2019.
30. Furthermore, when the defendant no. 1 has already been living
separately from the plaintiff since year 2012, the defendant no. 1 cannot
claim any right in the suit property by virtue of the same being a shared
household/matrimonial home. The suit property ceased to be her
matrimonial home as soon as she, along with her husband shifted to rented
premises where she was residing with her husband since 2012.
31. Furthermore, Hon’ble High Court of Delhi, in the case titled as
Satish Chander Ahuja vs Sneha Ahuja (supra) in para no. 102 & 103 held
as follows:-
“
“102….We are further of the view that when in the suit defendant
has pleaded to resist the decree on the ground of her right of
residence in the suit property it was for her to prove her claim in the
suit both by pleadings and evidence”
103. As noted above, one of the conditions to treat a person as a
respondent is that “against whom the aggrieved person has sought
any relief under the Act”. The defendant in her pleadings having
claimed that she has right of residence in the suit property, she for
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successful resisting the suit has to plead and prove that she has been
subjected to any act of domestic violence by the respondent, which
is implicit in the definition of the aggrieved person itself as given in
the Section 2(A) of the Act, 2005.……..For granting any relief by
the Civil Court under Section 19 it has to be proved that the
respondent is committing or has committed an act of domestic
violence on the aggrieved person. To treat a person as the
“respondent” for purpose of Section 2(q) it has to be proved that
person arrayed as respondent has committed an act of domestic
violence on the aggrieved person.”
32. Thus, in order to resist the present suit on the strength of the rights
accorded under the Protection of Women from Domestic Violence Act
2005, it was also incumbent upon the defendant no. 1 to prove that the
plaintiff had committed domestic violence against her. In this context, the
testimony of defendant no. 1 becomes extremely relevant. The defendant
no. 1 has deposed that after some months, the plaintiff along with her
family members started demanding a Maruti Car and cash of ₹50,000/-
from the defendant no. 1. When the father of the defendant no. 1 expressed
his inability to fulfill the demands of the plaintiff and her family members,
they started torturing and harassing the defendant no. 1. She further
deposed that the plaintiff and her family members also demanded gold
articles from the defendant no. 1. She claims that the plaintiff and her
family members used to beat her. The husband of the defendant no. 1 also
beat her on various occasions. She deposed that she did not complain
against the plaintiff and her family members in order to save her
matrimonial life. She even deposed that the plaintiff and her family
members did not allow her to enter her matrimonial home on 06/02/2011.
Thereafter, it was only on the intervention of her relatives that she could
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resume her matrimonial life. She deposed that the plaintiff and her family
members kept on torturing, humiliating, harassing the defendant no. 1.
They would frequently abuse the defendant no. 1.
33. What is noteworthy in the present matter is that, despite the alleged
atrocities committed upon the defendant no. 1, she never filed any police
complaint, nor were any legal proceedings ever initiated by her against the
plaintiff and her family members. Her testimony has also not been
corroborated by that of any family member or neighbour or any medical
document. The plaintiff, in her evidence, herself deposed that she filed a
complaint dated 10/05/2019 at the concerned PS and CAW Cell and got
FIR bearing no. 775/2020, U/s 498-A/406/34IPC, P.S. Khajuri Khas
registered against her husband and in-laws, only after receiving summons
of the petition filed by her husband, seeking decree of divorce and after
receiving summons of the present suit as she had no other alternative.
Apposite, it is to note that no police complaint was proved by the defendant
no. 1 during trial. The defendant no. 1 has thus failed to prove that the
plaintiff committed domestic violence against her. As such the defendant
no. 1 cannot be considered to be an aggrieved person as defined under
section 2.(S.) of the PWDV Act, nor can the plaintiff be considered to be
respondent as defined under section 2.(q) of the Act. Having said that the
defendant cannot claim right in the suit property only on account of it being
her matrimonial house.
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34. Proceeding further, it is the case of the plaintiff that the defendant no.
1 along with her family members tried to forcibly enter the premises on
27/04/2019 and on 06/05/2019. It is her averment that the plaintiff called
the police and filed a police complaint on 27/04/2019 and 07/05/2019.
35. The defendant no. 1, in her WS, as well as during cross-examination,
duly admitted that she had visited the suit property on 27/04/2019. She,
however, elucidates that she visited the suit property as she was unable to
contact her husband, despite several efforts. She narrates that she visited
the suit property on 27/04/2019 to inquire about the whereabouts of her
husband. Thus, in a scenario, where the plaintiff has specifically stated that
she had severed all her relations with the defendant no. 1 and her husband
and has further substantiated her claim that the defendant no. 1 tried to
forcibly enter the suit property on 27/04/2019 and 06/05/2019 by placing
on record the complaint dated 27/04/2019 & 07/05/2019 and further when
the defendant no. 1 has very much admitted the fact that she visited the suit
property on 27/04/2019, it can safely be deduced that the plaintiff has
proved her case.
Accordingly, issue no. 7 is decided in favour of the plaintiff
and against the defendant no. 1. Plaintiff is accordingly entitled for the
decree for Permanent Injunction in her favour and against the defendant no.
1 thereby restraining her from visiting the suit property and creating any
third party interest in the suit property i.e. H.No. 343, Gali No. 9, Tukhmir
Pur Extension, Near Shani Dev Mandir, Karawal Nagar, Delhi-110094,
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Khasra No. 485, measuring area 50 sq. yds., more specifically shown in
blue colour in site plan.
Issue No. 8
(viii) Whether the plaintiff is entitled to the relief of mandatory
injunction as prayed for in prayer clause B? OPP.
36. The onus to prove the present issue was upon the plaintiff. The
plaintiff seeks the relief of mandatory injunction thereby directing the SHO
P.S.Karawal Nagar, Delhi to take appropriate legal action against the
defendant no. 1 if she visits the suit property in future. It is not the case of
the plaintiff that the police have failed to take appropriate action in respect
to an already existent legal violation on behalf of the defendant no. 1. The
plaintiff has sought the present relief on the anticipation that the defendant
no. 1 might visit the suit property again in the future. It goes without saying
that in case the defendant no. 1 visits the property in future, the plaintiff
will have legal remedies available with her. She can approach the
appropriate forum as and when the defendant no. 1 violates the order of the
court. Such a relief for directions to take legal action against an unspecified
future violation can not be granted by the court as it is settled law that any
injunction which requires constant monitoring of the court or would result
in a decree which cannot be executed should not be granted.
The issue at hand is thus decided against the plaintiff and in favour
of defendant no. 1.
Relief
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37. In view of the above discussions, the suit of the plaintiff is partly
decreed and plaintiff is held entitled to the following relief:
“D
ecree for Permanent Injunction in favour of plaintiff and against the
defendant no. 1 thereby restraining her from visiting the suit property and
creating any third party interest in the suit property i.e. H.No. 343, Gali
No. 9, Tukhmir Pur Extension, Near Shani Dev Mandir, Karawal Nagar,
Delhi-110094, Khasra No. 485, measuring area 50 sq. yds., more
specifically shown in blue colour in site plan”.
38. Decree-sheet be prepared accordingly.
39. File be consigned to Record Room after necessary compliance.
Announced in the open Court
today i.e. 10/03/2025
(PRIGYA GUPTA)
SCJ-cum-RC (NORTH-EAST),
KARKARDOOMA COURTS, DELHI
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