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2006 DIGILAW 1234 (DEL)

RITU CHAUHAN v. MADHO SINGH CHAUHAN

2006-07-27

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) ADMIT. ( 2 ) AT the request of learned counsel for the parties, the petition is taken up for final disposal. ( 3 ) IN our social system it is the female species which invariably requires the protection of the court. The courts have been indulgent in this behalf to see that the rights of the women are protected including as a wife. The present case is unfortunately one where the petitioner, a lady, has attempted to overreach the court, indulge in falsehood and utilize legal proceedings for her own benefit. ( 4 ) THE petitioner is the wife of the respondent. The parties are married for quite some time, have four children out of which three children are already adults. There has been continuous acrimony between the parties and in the present proceedings an attempt at mediation was also made through Delhi High court Mediation and Conciliation Centre but the same was not fruitful. ( 5 ) THE petitioner approached this court by a suit for perpetual injunction on the allegation that she was apprehending that the respondent-husband may dispossess her and her children from the suit property J-77, Saket, New Delhi which is their matrimonial home. The property consists of 125 square yards with a constructed ground floor, first floor, second floor and barsati. The first floor was already sold out while the second floor was on rent to one Mr. Praveen kumar at the rate of Rs 6,000/- per month. The ground floor was occupied by the petitioner and her children. ( 6 ) ON the plaint being presented, an ad interim order was granted on 18. 12. 2000 restraining the respondent herein from dispossessing the petitioner and her children from the suit property. In fact the order states that the respondent is restrained from 'selling, transferring, dispossessing of the same or creating any third party interest in the suit property'. This order continued to operate and on 13. 10. 2002 while continuing the interim orders it was clarified that the ex parte order dated 18. 12. 2000 would not entitle the petitioner to obstruct the respondent from using or staying in the property in suit since allegation of the respondent was that he was thrown out into the streets. In subsequent proceedings, the interim orders have been modified inasmuch as on 13. 05. 12. 2000 would not entitle the petitioner to obstruct the respondent from using or staying in the property in suit since allegation of the respondent was that he was thrown out into the streets. In subsequent proceedings, the interim orders have been modified inasmuch as on 13. 05. 2004 on an application of the respondent under Order 7 Rule 11 of the Code of Civil procedure, 1908 (hereinafter referred to as the said Code) the restraint was restricted to the petitioner and her children not being dispossessed from the suit property except in accordance with law. ( 7 ) THE petitioner apparently inducted one Mr. Vijay Singh as a tenant in respect of one room on the ground floor along with the right to share the kitchen on 31. 12. 2002. The document of lease was executed by the petitioner claiming to be owner of the property in question (though it is not in dispute that she is not the owner and it is the respondent who is the owner ). The rent agreement of the said date states that the tenant has also satisfied himself to the title of the petitioner. As to how is not known. The petitioner failed to bring such an arrangement of the lease agreement to the notice of the court and it is for the first time in the proceedings held on 06. 01. 2004 that this aspect was brought to the notice of the learned Additional District Judge. It may be noticed that in view of the increase in pecuniary jurisdiction of this court, the suit was transferred to the trial court. The petitioner claims that since the tenant in respect of the second floor vacated the portion in his occupation in July, 2002, the source of income which was being derived by the petitioner got blocked as she was enjoying the rent and her children occupied the second floor on account of paucity of accommodation. On the proceedings held on 06. 01. 2004 the petitioner stated that the tenant was going to leave the portion very shortly and thus orders on certain interim applications and on an application under order 7 Rule 11 of the Code were deferred. ( 8 ) IT may also be noticed that prior to the said proceedings on 17. 07. 2003, the respondent had claimed that in respect of the order dated 03. 10. ( 8 ) IT may also be noticed that prior to the said proceedings on 17. 07. 2003, the respondent had claimed that in respect of the order dated 03. 10. 2002 the respondent was not being allowed by the petitioner to stay in his own house and he was compelled to sleep outside. The respondent was given liberty to approach the SHO of the concerned police station in case of such obstruction. ( 9 ) MR. Vijay Singh so called tenant did not leave the suit property but in fact filed a separate suit for injunction. On 05. 02. 2004 in the present suit all these facts were brought out. It is necessary to reproduce the order of the said date because it has various ramifications. The order reads as under:" 05. 02. 2004 present: plaintiff with counsel Sh. Bhupinder Partap Singh, Advocate. Deft. present with counsel Sh. S. S. Jain, Advocate. Plaintiff has brought the key of the drawing room at ground floor, small kitchen, latrine and bath room which is now being used by some occupant who is occupying with permission of the plaintiff and that latrine, bath room present being used by that occupant Sh. Vijay Singh and family and by the plaintiff. The defendant states that it will not be proper for him t o use that latrine and bath room which is already being used by some other occupant inducted at the instance of the plaintiff. The counsel for the defendant further states that there is another room with which is attached toilet and bath and that said bath room and toilet shall be used by the defendant. It has been brought to my notice that on the second floor is living the children of the parties and they are namely daughter Miss Kanika aged above 19 years, two sons namely Chetan aged above 17 years and Piyush aged about 13 years and that there are differences between these children on one hand and the defendant on the other hand and that toilet and bath can be commonly used by the plaintiff's children and the plaintiff. Some interim arrangement being sought. Some interim arrangement being sought. It has been stated by the plaintiff that the said occupant inducted by her shall vacate the premises and that she will get the premises vacated by the end of March, 2004 or by the first week of April, 2004 It has been agreed tentatively between the parties that the plaintiff shall shift over barsati floor with her luggage. She can use toilet and bath whatsoever available at barsati floor and it is stated that since there is no bath room at the barsati floor so she is allowed to use toilet and bath at second floor. Further it has been agreed that the defendant shall be at liberty to use the room at the ground floor which is attached toilet and bath. Now it has been revealed by the plaintiff that some another guest Miss samita is living in that room who is a student of MBA. The plaintiff states that since she was also inducted in the said room by her, now that guest shall be taken along with the plaintiff on to the barsati or second floor. At this stage, Sh. Bhupender Partap Singh Advocate states that all these facts were not disclosed by the plaintiff to him and that he is feeling embarrassed when these new facts are being told by the plaintiff and that he is thinking whether to remain counsel for her or not. Anyhow, let the counsel have patience and bear with this situation and let me dispose of today's proceedings. The key brought by the plaintiff is being handed over to the defendant and by opening the lock of the drawing room the defendant shall use the drawing room and the plaintiff shall take her luggage from that drawing room to the barsati floor. The defendant has received the key in the court. This interim arrangement being made. The plaintiff shall get the room vacated from the girl Miss Samita on or before February, 2004 and further proceedings shall take place on 12. 02. 2004. " ( 10 ) A reading of the aforesaid order shows that an assurance was held out by the petitioner that she will get the premises vacated by Sh. Vijay Singh by the end of March or in the first week of April, 2004, but that has not happened till date. 02. 2004. " ( 10 ) A reading of the aforesaid order shows that an assurance was held out by the petitioner that she will get the premises vacated by Sh. Vijay Singh by the end of March or in the first week of April, 2004, but that has not happened till date. As a tentative arrangement the petitioner shifted to the barsati floor with her luggage and thus has even occupied the barsati floor. At that stage, another fact came to the light that the petitioner has even inducted another guest Ms Samita who is staying in the ground floor. The petitioner assured that Ms Samita will move from there along with the her to barsati or second floor and it is stated that she has since left. This fact was not even brought to the notice of the counsel for the petitioner which is apparently the reason why the counsel was rightly embarrassed and this fact is noted in the order itself. ( 11 ) INSOFAR as the present proceedings are concerned, the two orders dated 29. 03. 2005 and 03. 08. 2005 have been challenged. ( 12 ) THESE two orders seek to challenge the directions passed by the trial court whereby the petitioner has been asked to ensure that the tenant unauthorizedly inducted contrary to the Orders of this Court is got removed by the petitioner for which the petitioner was directed to approach the police. The second order records failure of the petitioner to approach the police and directions were passed for the SHO in that behalf. ( 13 ) THE plea of the learned counsel for the petitioner was same before the trial court as here since it is contended that the object of inducting the tenant on the ground floor was to provide some income to the petitioner which had been lost due to the tenant vacating on the second floor. The trial court noticed that despite the earlier assurances held out by the petitioner to get the premises vacated in March or April, 2004, nothing has happened and the matter had got more complicated by the tenant filing a civil suit. The petitioner apparently was supporting the tenant in the said suit. The trial court has noticed that the petitioner has attempted to circumvent the orders of the court and that the trial court was not without authority to deter such action. The petitioner apparently was supporting the tenant in the said suit. The trial court has noticed that the petitioner has attempted to circumvent the orders of the court and that the trial court was not without authority to deter such action. The petitioner was held to have taken undue advantage of the order of the court and thus a direction was passed for the petitioner to take action for removal of Mr. Vijay Singh from the suit property since despite interim orders of the court such induction had taken place. The subsequent order dated 03. 08. 2005 records that the petitioner did not even approach the SHO. The interesting part is that it is the petitioner who is aggrieved by the order and has filed the present petition. ( 14 ) LEARNED counsel for the petitioner submits that the petitioner should not be asked to remove the tenant and rather the tenant Mr. Vijay Singh should be permitted to continue to occupy so that she can enjoy the benefit of the rent he was paying. In my considered view this plea is specious and has to be rejected. The suit filed by the petitioner is not one for maintenance. If the petitioner was not possessed of sufficient means it was open to the petitioner to claim maintenance in appropriate legal proceedings against the respondent. The suit was limited to the protection of the right of the petitioner to continue to occupy the suit property on an apprehension that she and her family may be forcibly dispossessed by her husband. These proceedings have been grossly abused by the petitioner to induct a tenant and almost throw out the respondent from the suit property. The petitioner has clearly tried to overreach the orders of the court, failed to disclose the creation of the tenancy and has thus misused the process of court. ( 15 ) THE petitioner is refusing to take any action for removal of the alleged tenant and in fact wants the tenant to continue to occupy the property. Learned counsel for the petitioner submits that she is a lady in distress. I am unable to accept this plea. The petitioner has in fact created a distressing situation in the present matter by overreaching the court and mis-utilizing the orders of the court. Learned counsel for the petitioner submits that she is a lady in distress. I am unable to accept this plea. The petitioner has in fact created a distressing situation in the present matter by overreaching the court and mis-utilizing the orders of the court. There can be no sympathy for such a party and the court must deal firmly with the conduct of such parties. ( 16 ) IN view of the aforesaid position, I am of the considered view that that there is no patent error or erroneous exercise of jurisdiction by the trial court and the impugned order is not liable to be interfered with. In view of the conduct of the petitioner, I also deem it appropriate to direct that the petitioner is not entitled to receive the amount from the Mr. Vijay Singh till he is vacated from the property and the amount if any in this behalf paid to her is liable to be deposited in the trial court. The petitioner is further restrained from alienating, transferring or parting with possession of the suit property during the pendency of the suit and the trial court will examine whether a suit of the plaintiff can at all be maintained in view of her conduct and whether proceedings should be utilized only for purposes of ensuring that the status prior to filing of the suit is maintained and the occupation of Sh. Vijay Singh ceases. Police to ensure compliance of trial court orders. ( 17 ) IN the end this court can only express its anguish at the conduct of the petitioner and in view of her conduct I consider it appropriate to not only dismiss the petition but impose costs of Rs 5,000 on the petitioner. CM No. 11835/2005 no directions are called for on this application. The application stands disposed of.