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2010 DIGILAW 986 (DEL)

Ravinder Singh Sandhu v. Ravneet Kaur Sandhu

2010-09-23

VIKRAMAJIT SEN

body2010
Mukta Gupta, J. 1. This is an Appeal against the Order dated 18th March, 2010 passed by the learned Single Judge disposing of IA No. 14872/2009 (under Order 39 Rules 1 and 2 CPC by the Appellant/Plaintiff), IA No. 16863/2009 (under Section 151 CPC by the Respondent/Defendant No. 1) and IA No. 16096/2009 (under Order 39 Rules 1 and 2 read with Section 151 CPC by Respondent/Defendant No. 1). Vide the impugned order the learned Single Judge modified its Order dated 24th November, 2009 wherein the parties were directed to maintain status quo with regard to possession, title and construction till the pendency of the proceedings in the following manner: "(i) Since the Local Commissioner has found that the two rooms on the ground floor at the rear end of the suit property are in use of Defendant No. 1, the Defendant No. 1 and the children, shall continue to use and occupy the two rooms on the ground floor at the rear end of the suit property during the pendency of the suit. (ii) Since there is no doubt vis a vis the fact that the first floor is in possession of Defendant No. 2 and 3 the position as obtaining today shall continue. It is made clear that in so far as remaining portion is concerned the Plaintiff shall continue to be in possession. Mr. Sharma says that in view of the modification made in the order dated 24.11.2009 he does not wish to press the other reliefs made in the captioned applications." 2. The Appellant filed a Plaint being CS (OS) No. 2187/2009 against the Respondents inter alia praying for a decree of declaration that he had purchased the 50% of the half undivided share of the property bearing No. K-16A, Rajouri Garden, New Delhi purchased in the name of Respondent No. 1 vide Sale Deed dated 25th March, 2008 and declaring him to be the absolute owner thereof. He also sought a preliminary decree of partition seeking 3/4th share in the entire Suit property and the Defendant No. 1, to the extent of 1/4th share in the Suit property and also a mandatory injunction directing the Respondents to withdraw themselves from the possession of the said so defined portion in favour of the Appellant. He also sought a preliminary decree of partition seeking 3/4th share in the entire Suit property and the Defendant No. 1, to the extent of 1/4th share in the Suit property and also a mandatory injunction directing the Respondents to withdraw themselves from the possession of the said so defined portion in favour of the Appellant. On 24th November, 2009 the learned Single Judge passed an ex parte ad interim order directing the parties to maintain status quo with regard to the possession, title and construction on the said Suit property. 3. The case of the Appellant is that the Appellant and the Respondent No. 1 were married on 16th November, 1997 and from the wedlock two children a daughter named Achint Kaur and a son namely Joban Singh were born on 9th December, 2001 and 15th September, 2006 respectively. It is the case of the Appellant that he and his brother had bought 50% share each of this property from its erstwhile owner in the year 1996. Initially, though after the marriage they were staying with the Appellant's father, however, to maintain peace and harmony in the matrimonial relationship he along with the Respondent No. 1 shifted to the ground floor of the Suit property. His younger brother along with his family resided on the first floor. The father of the Appellant though a widower continued staying in his own house. The property was, however, not partitioned by metes and bounds among the brothers. According to the Appellant due to the immense interference of the Respondent Nos. 2 and 3 and the temperamental difference with Respondent No. 1, the life was never a smooth sailing one resulting in heavy loss in the business and thus, compelling the Appellant to start a new business from his own funds in August, 2004 at Noida. Since he did not have any place to start the business, the Respondent No. 2 offered him vacant premises in his factory at Noida wherein he started his business. However, soon thereafter he was allotted an industrial plot at Manesar. Since he did not have any place to start the business, the Respondent No. 2 offered him vacant premises in his factory at Noida wherein he started his business. However, soon thereafter he was allotted an industrial plot at Manesar. Since the Respondent No. 1 did not want the brother of the Appellant also to be living in the same house and wanted transfer of his share in her name there were constant problems whereby the Appellant's brother was also persuaded to sell his portion in the name of the Respondent No. 1 and shift out from the said premises. According to the Appellant, despite having purchased the half undivided share of the Suit property from his brother for which he paid substantially out of his own funds, the Respondent No. 1 was still not satisfied and there was constant discord in the matrimonial life. The business also could not run as the Respondent No. 1 being the partner, refused signing cheques and thus, creating problems and not only this she lodged a complaint at the Noida Police Station against the Appellant. Constraint from all these the Appellant filed a petition for decree of divorce under Section 13 (1A) of the Hindu Marriage Act, 1955. According to the learned counsel for the Appellant there was continuous interference and threats from Respondent Nos. 2 and 3, that is, the parents of Respondent No. 1 and to cause more insult they shifted with Respondent No. 1 in the Suit premises on the first floor owned by the Appellant. According to the Appellant he is entitled to 3/4th share in the entire property and on his request to partition the property by metes and bounds, the Respondents are trying to dispose of the 50% undivided share of the property by illegal means. 4. That on filing the Suit status quo orders were granted by the learned Single Judge on 24th November, 2009 in IA No. 16096/2009 under Order 39 Rules 1 and 2 CPC filed by the Appellant. 4. That on filing the Suit status quo orders were granted by the learned Single Judge on 24th November, 2009 in IA No. 16096/2009 under Order 39 Rules 1 and 2 CPC filed by the Appellant. Thereafter, the Respondent No. 1 filed her Written Statement on 9th December, 2009 and also filed Application under Order 39 Rules 1 and 2 and Section 151 CPC wherein it was prayed that the Appellant or his attorneys be restrained from preventing the right of ingress and egress of the Respondent No. 1 qua the property and restrain them from creating obstacle in the use and enjoyment of the said property being her matrimonial home/shared accommodation and also restrain the Appellant from creating any third party rights in the ground floor portion of the property. Respondent No. 1 also filed an Application under Order 26 Rule 9 CPC for appointment of the Local Commissioner. 5. The case of the Respondent No. 1 in the Written Statement and in the Applications is firstly, that she is the absolute owner of 50% undivided portion purchased vide sale deed dated 25th March, 2008, as substantial portion of the money for the purchase of the said share was provided by her father and secondly, that she is using the ground floor premises as a shared matrimonial home and is thus entitled to the possession thereof as well. It is also denied that Respondent No. 3 is occupying the first floor of the Suit premises for their use with a separate kitchen. Some relevant averments in the written statement are as follows: "It is emphatically denied that on 18th May, 2009 defendant No. 2 along with muscle men started visiting the factory premises and also caused harm to the goods of the plaintiff. It is further emphatically denied that the defendant No. 1 declared to the staff of the plaintiff that he has taken over the business of the plaintiff and would ensure no respect is being extended to the plaintiff in his factory. It is further emphatically denied that the defendant caused insult to the plaintiff as alleged. It is further emphatically denied that the defendant No. 3 is occupying the first floor of the suit premises for their use with a separate kitchen. It is further emphatically denied that the plaintiff is residing on the ground floor of the property as alleged. It is further emphatically denied that the defendant caused insult to the plaintiff as alleged. It is further emphatically denied that the defendant No. 3 is occupying the first floor of the suit premises for their use with a separate kitchen. It is further emphatically denied that the plaintiff is residing on the ground floor of the property as alleged. It is further emphatically denied that the minor son of the plaintiff with a maid servant is sharing one room on the ground floor. It is further emphatically denied that the plaintiff made any request as alleged in paras under reply. The plaintiff is in the habit of fabricating evidence in his favour to suit his requirement and as such the allegations contained in paras under reply are wrong and denied emphatically. On the contrary the fact remains that the premises bearing No. K16A, Rajouri Garden, New Delhi of which the defendant No. 1 is co-owner thereof and the property in question is also her matrimonial home and she is occupying the same in her dual capacity and has every right to maintain the possession of the entire property. It is submitted that the defendant No. 1 along with her children and maid servant is occupying the ground floor and discharging her obligations towards her family. However it is not out of place to mention that ever since the plaintiff is involved in adultery with Shefali Aggarwal. He is confining himself to one bed room. In the property and on different occasions he preferred to stay away for a night and as such the plaintiff cannot claim any equity from this Hon'ble Court. It is submitted that her parents/brother often visited her to ascertain her welfare and well being and their curtsey visit to the defendant would not be taken otherwise by the plaintiff. The allegations contained in this regard are otherwise untenable in the eyes of law and are denied in toto. It is submitted that the defendant No. 1 has vested right, title and interest qua the suit property being 50% undivided owner thereof by virtue of Section 54 of the Transfer of Property Act and by virtue of Section 17 of Protection of Women from the Domestic Violation Act, the defendant has statutory right to live and occupy the premises and as such the suit of the plaintiff being untenable deserves to be dismissed. The defendant craves leave of this Hon'ble Court to refer and rely upon the submissions made therein and the facts stated therein are not repeated herein for the sake of repletion and may be read as past of it." After hearing, the learned Single Judge in I.A. No. 16097/2009 filed by the Respondent No. 1 appointed a Local Commissioner vide order dated 11th December, 2009 and it was directed: "I have heard the learned counsel for the defendants. I am of the view that in these circumstances a local commissioner needs to be appointed. Accordingly, Ms. Sahila Lamba, Advocate (Mb.9818153010) is appointed as a local commissioner. The Local Commissioner would visit the suit premises situate at K-16A, Rajouri Garden, New Delhi and ascertain the exact position as to the person(s) who are in the possession of the suit property. The report shall also indicate the portion(s) of the suit property in possession of each of the parties to the suit." 6. The Local Commissioner visited the premises on 15th December, 2009 at about 2.30 P.M. however, the case of both the parties is that on 14th December, 2009 an incident took place and because of which the police was called wherein their statements were recorded. The Appellant claims that the Respondent No. 1 took forcible possession of the two rooms on the rear side of the ground floor on 14th December, 2009 contrary to the stay orders passed by the Hon'ble Court and that the children had been taken to Kirti Nagar since about 1-1 months back whereas the Respondent No. 1 claims that the relatives of the Appellant present in the third room came on 16th November, 2009 and forcibly dispossessed her from the said room. Both the parties gave their statements to the police and then subsequently their complaints. On 15th December, 2009 the Local Commissioner inspected the premises. The relevant portions of the report of the Local Commissioner are as under: "3. On reaching the suit property, I found that the two rooms on the extreme end of the ground floor of the suit property were locked. The said rooms were opened by Ms. Ravneet Kaur, defendant No. 1. Ravneet Kaur stated that she and her two minor children Achint and Joban are in possession of the said two rooms. On reaching the suit property, I found that the two rooms on the extreme end of the ground floor of the suit property were locked. The said rooms were opened by Ms. Ravneet Kaur, defendant No. 1. Ravneet Kaur stated that she and her two minor children Achint and Joban are in possession of the said two rooms. She further stated that the things lying in the said two rooms belong to her and two children. 4. That thereafter Ravneet Kaur took me to a third bedroom on the ground floor of the suit property where relatives of Ravinder Singh Sandhu were present. Ravneet Kaur opened some of the cupboards present in the said room and stated that the things lying in the said cupboards belong to her whereas Ravinder Singh Sandhu stated that the same belong to him. 5. That during the course of the execution of the commission, Ravinder Singh Sandhu, plaintiff, stated that the said two rooms were in his possession till the evening of 14.12.2009 and that he was forcibly dispossessed by the defendants from the said rooms in the evening of 14.12.2009 in complete disregard of the stay order passed by this Hon'ble Court. He further stated that he had lodged a complaint with the local police in said connection and handed over to me the copy of the complaint lodged by him, copy of his statement recorded by the police and copy of the stay order passed by this Hon'ble Court. The aforesaid documents are being annexed as ANNEXURE-A to this report. 6. That per contra Ravneet Kaur, defendant No. 1, stated that the plaintiff and his family members manhandled her and tried to dispossess her from the said two rooms in the evening of 14.12.2009 and that she lodge a complaint with the local police in said connection. She also handed over to me the copy of the complaint lodged by her, which is being annexed as ANNEXURE-B to this report. Ravneet Kaur also handed over to me an invitation card to show that she had organized a religious ceremony in the ground floor of the suit property. The said invitation card is being annexed as ANNEXURE-C to this report. 7. Ravneet Kaur also handed over to me an invitation card to show that she had organized a religious ceremony in the ground floor of the suit property. The said invitation card is being annexed as ANNEXURE-C to this report. 7. That Ravneet Kaur, defendant No. 1 and Ravinder Singh Sandhu, plaintiff made allegations and counter-allegations against each other and the same were briefly recorded in the rough report prepared by me at the time of the execution of the commission. 8. That I concluded the commission at 3:40 p.m. and prepared a rough report. All the afore-noted persons who were present at the time of execution of the commission appended their signatures on the rough report. Mr. Ravinder Singh Sandhu, plaintiff, also made a note in the rough report while appending his signatures thereon. The rough report prepared by me at the time of execution of the commission is being annexed as ANNEXURE-D to this report. 9. That I conclude that the factual position regarding possession of the ground floor of the suit property was that two bedrooms which were on extreme end of the ground floor were opened by Ravneet Kaur, defendant No. 1, with the keys possessed by her. Ravneet Kaur, defendant No. 1 also opened some of the cupboards present in third room on the ground floor with the keys possessed by her." 7. On the basis of the Local Commissioner's report the learned Single Judge on 18th March, 2010 modified the status quo order and directed that the Respondent Nos. 2 and 3 will continue to be in the possession of the first floor and the Respondent No. 1 with the children will continue to use and occupy the two rooms on the rear side of the ground floor and the Appellant was permitted to continue to be in possession of the remaining portion on the ground floor. 8. Learned counsel for the Appellant seriously contests the report of the Local Commissioner which was also done before the learned Single Judge by filing an Application as well. Not only this, a protest was also lodged on the spot on the report itself. According to the learned counsel for the Respondents the Local Commissioner gave the factual position, thus, on the basis of the factual position, the learned Single Judge passed the Impugned Order which deserves no interference. 9. Not only this, a protest was also lodged on the spot on the report itself. According to the learned counsel for the Respondents the Local Commissioner gave the factual position, thus, on the basis of the factual position, the learned Single Judge passed the Impugned Order which deserves no interference. 9. Undisputedly, the Appellant and his brother were the co-owners with 50% share each of the built up property bearing No. K-16A, Rajouri Garden, New Delhi and both of them were living along with their families on the ground floor and the first floor respectively. On 25th March, 2008 half undivided share of this property was sold by Shri Gurvinder Singh, the brother of the Appellant to Respondent No. 1. The claim of the Appellant is that substantial amount of the consideration, in the said purchase was from his earnings whereas the claim of the Respondent No. 1 is that major part of the purchase money was given by her father and the remaining part was from the income of the partnership firm of which she is also a partner. 10. The ownership of the property or the entitlement of the portions thereof is not the issue to be decided at this stage because that will have to be decided by the learned Single Judge in the trial. The lis at the moment is qua the possession of the property and the peaceful enjoyment thereof during the pendency of the Suit. Both the parties are litigating cantankerously. When the Appeal came up for hearing since it was essentially a matrimonial dispute, an effort was made for mediation, so that the matter could be resolved between the parties, however, the mediation proceedings did not bear any fruits. Thus, this Appeal was heard on merits. 11. Grant of temporary injunction is a discretionary remedy which has to be exercised in accordance with reasons and sound judicial principles. The sound judicial principles which regulate the discretion conferred under Order 39 Rules 1 and 2 are that the party seeking temporary injunction must satisfy that there is a serious question to be tried in the Suit to dispel the doubt relating to their entitlement and there being probability of it being entitled to the relief sought. The sound judicial principles which regulate the discretion conferred under Order 39 Rules 1 and 2 are that the party seeking temporary injunction must satisfy that there is a serious question to be tried in the Suit to dispel the doubt relating to their entitlement and there being probability of it being entitled to the relief sought. Secondly, the Court's interference is necessary to protect it from the threatened injury, which according to the Court is irreparable one before a legal right can be established on trial and finally the comparative inconvenience, which is likely to ensue from withholding temporary injunction, would be greater than that which is likely to arise from grant of it. Prima facie case is not to be confused with prima facie title of the party which has to be established on evidence. In ascertaining the balance of convenience, the Courts are required to weigh and compare the substantial mischief that is likely to turn to the parties if the injunction is refused or granted. All these three conditions should co-exist before a temporary injunction is granted. While granting injunction the Court should consciously look to the conduct of the parties, the probable injuries to either of the parties and whether the party could be adequately compensated if injunction is refused. 12. Conscious of the limited scope of interference by the Appellate Court with the order of grant or refusal of temporary injunction, that it cannot in the exercise of its appellate jurisdiction substitute its own discretion in place of the Trial Court unless the order passed by the Trial Court is found unconscionable, perverse or opposed to sound principles of law and practice, we have analyzed the averments and the pleadings of the parties and also the report of the Local Commissioner. The paramount consideration at this stage is that the parties live in peace and harmony without further compounding their disputes, at the same time preserving the Suit property till the disposal of the Suit. 13. It may be noted that the Local Commissioner was directed to ascertain the exact position as to the person(s) who are in possession of the Suit property. It was also directed that the report shall also indicate the portion(s) of the Suit property in possession of each of the parties to the Suit. 13. It may be noted that the Local Commissioner was directed to ascertain the exact position as to the person(s) who are in possession of the Suit property. It was also directed that the report shall also indicate the portion(s) of the Suit property in possession of each of the parties to the Suit. The Suit relates to the entire K-16A, Rajouri Garden, New Delhi i.e. the ground floor and the first floor. A perusal of the report shows that the Local Commissioner has neither taken any photographs nor made an independent assessment as to who is in possession of which part of the Suit premises and has primarily recorded the statements made by the parties. The report mentions about inspection of only 3 bedrooms on the ground floor. Thus, with regard to the remaining rooms on the ground floor and first floor there was no inspection carried out. The Appellant had moved an Application under Section 151 CPC being I.A. No. 705/2010 for rejection of the report of the Local Commissioner, however, no order was passed on this Application on 18th March, 2010, though the learned Single Judge vide the Impugned Order accepted the report of the Local Commissioner. It may be noted that even in the Written Statement filed on 9th December, 2009 nowhere has it been claimed by the Respondent No. 1 that her parents are living on the first floor and she is in the exclusive possession of the two rooms on the rear side of the ground floor. Her claim is that the ground floor is her shared matrimonial home and the first floor is with her as exclusive owner and the parents only pay a courtesy visit. In a shared matrimonial accommodation, though the rooms may be identifiable but the concept of exclusive possession of any of the occupants to the exclusion of ingress and egress of the other is unknown. This stand of the Respondent No. 1 in the Written Statement and Applications filed on 9th December, 2009 is after the learned Single Judge passed status quo orders on 27th November, 2009. This stand of the Respondent No. 1 in the Written Statement and Applications filed on 9th December, 2009 is after the learned Single Judge passed status quo orders on 27th November, 2009. It is only before the Local Commissioner on 15th December, 2009 that Respondent No. 1 for the first time has taken the stand of exclusive possession of two rooms on the rear side and thereafter on the basis of the Local Commissioner's report, an Application being IA No. 16863/2009 under Section 151 CPC has been filed on 22nd December, 2009 inter alia praying not to disturb the possession of the Respondent in respect of the two rooms on the rear side at the ground floor. 14. Both the parties have given their complaints to the police with regard to incident dated 14th December, 2009. Much has been sought to be made out by learned Senior Counsel for the Respondent No. 1 that the complaint of the Appellant to the police with regard to the incident dated 14th December, 2009 was given only on the 15th December, 2009 whereas the Respondent No. 1 gave her complaint on the 14th itself. Nothing turns thereon because on 14th December, 2009 itself, the statement of the Appellant had been recorded by the police copy of which has been annexed with the Local Commissioner's report wherein the Appellant has stated about his forceful dispossession from the two rooms on the rear side of the ground floor by putting locks thereon by the Respondent No. 1 and her family. 15. We do not think that reliance can be placed on the Report of the Local Commissioner because firstly, admittedly there was an incident on 14th December, 2009 and both the parties are claiming to have been dispossessed or attempted to be dispossessed on the said date. Moreover, the Report of the Local Commissioner is primarily based on the statements made by the parties as to who was staying in the rooms. No photographs of the place had been taken. The Local Commissioner has not even inspected and ascertained the possession on the first floor and in the remaining portion of the ground floor. Moreover, the Report of the Local Commissioner is primarily based on the statements made by the parties as to who was staying in the rooms. No photographs of the place had been taken. The Local Commissioner has not even inspected and ascertained the possession on the first floor and in the remaining portion of the ground floor. The fact that on 15th December, 2009 when the commission was executed the keys of the two rooms on the rear side were handed over by Respondent No. 1 does not lead to the only inference that she was in the exclusive possession of the same to the exclusion of the Appellant. In view of the incomplete report of the Local Commissioner we are left with the stand of the parties in the Plaint, Written Statement and the Applications filed. 16. Though according to the Appellant, Respondent Nos. 2 and 3, that is, the parents of Respondent No. 1 have joined her on the first floor of the premises for the last three months, however, this fact has been denied by the Respondent No. 1 and it is stated that her parents and brother make a courtesy call only. The Respondent No. 1 does not deny her possession on the first floor, however in addition, also claims possession of the ground floor as a shared matrimonial home. In view of the fact that even in the Written Statement dated 9th December, 2009 the Respondent No. 1 has not admitted the possession and residing of Respondent Nos. 2 and 3 on the first floor premises and rather her case has been that they come only for a courtesy call, in our opinion, there is no prima facie case for the Respondent Nos. 2 and 3 to be permitted to be in possession of the first floor. Even as per the Appellant the Respondent Nos. 2 and 3 have come to stay with Respondent No. 1 for the last three months to cause more insult to him. The Respondent No. 1 has also alleged in her complaint that few relatives of the Appellant are staying with him for nearly a month. In our view, the learned Single erred in allowing the Respondent Nos. 2 and 3 have come to stay with Respondent No. 1 for the last three months to cause more insult to him. The Respondent No. 1 has also alleged in her complaint that few relatives of the Appellant are staying with him for nearly a month. In our view, the learned Single erred in allowing the Respondent Nos. 2 and 3 to continue in possession of the first floor as a relative or friend who has come to stay with a party cannot be given a right of possession till the pendency of the Suit. Moreover, though the Appellant has alleged that Respondent Nos. 2 and 3 are occupying the first floor it is not probable that they would be living at every time with the Respondent No. 1 at Rajouri Garden abandoning their own matrimonial home at Kirti Nagar. Further in view of the stand of the Respondent No. 1 that she is the exclusive owner of 50% undivided share and thus in possession of the first floor and is using the ground floor as a shared accommodation, we are of the view that Respondent No. 1 should continue to be in exclusive possession of the first floor. The issue as to who paid for the purchase of the property would be decided during the trial. We have come to this conclusion for yet another reason. Respondent No. 1 in her Written Statement and the complaints has alleged extreme physical, emotional and financial abuse and she also apprehends abuse and torture from the Appellant. In such a situation it is essential to secure her at a floor where there is no interference from the Appellant. Thus, the Respondent No. 1 will continue to be in exclusive possession of the first floor and the Appellant will in no manner interfere with the possession of the Respondent No. 1 on the first floor. The case of the Appellant is that he is in possession of the ground floor where one room is being used by his son and his maid and the case of the Respondent No. 1 is that the entire ground floor is a shared accommodation, of which she claims exclusive possession of two rooms pursuant to the Local Commissioner's report. The case of the Appellant is that he is in possession of the ground floor where one room is being used by his son and his maid and the case of the Respondent No. 1 is that the entire ground floor is a shared accommodation, of which she claims exclusive possession of two rooms pursuant to the Local Commissioner's report. From the averments in the Petition and the Written Statement, it is apparent that both the parties are at serious loggerheads and thus living together and sharing a common kitchen cannot be perceived in the situation. It would be thus appropriate to permit the Appellant to continue in possession of the ground floor. The children would be free to use the rooms both on the first floor and on the ground floor so that they get the love and affection of both the parents. 17. The Appeal is allowed and the Impugned Order dated 18th March, 2010 is modified to the extent that the Respondent No. 1 will be in the exclusive possession of the first floor. The Respondent Nos. 2 and 3 will not be entitled to occupy the suit premises. The Appellant will be in possession of the ground floor. The children namely, Achint Kaur and Joban Singh will be free to use rooms on both the ground floor and the first floor. The interim order of the learned Single Judge dated 24th November, 2009 as regards status quo on title and construction would continue as the same was not modified by the Impugned Order. In case the parties wish to live amicably as husband and wife together they can move appropriate application with the learned Single Judge in view of the changed circumstances.