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2016 DIGILAW 576 (UTT)

Natasha Makkad v. Gurcharan Singh

2016-09-15

V.K.BIST

body2016
JUDGMENT : V.K. Bist, J. The petitioner has challenged the order dated 27.06.2016 passed by Civil Judge (SD) Dehradun in O.S. No. 328 of 2016 whereby the trial Court granted an exparte injunction restraining the petitioner from entering into the matrimonial house. The petitioner has also challenged the order dated 05.08.2016 passed by 7th Addl. District Judge, Dehradun in Misc. Civil Appeal No. 52 of 2016,whereby the appeal filed by the petitioner against the ex-parte injunction has been dismissed. 2. On 27.06.2016, the respondents instituted the Civil Suit No. 328 of 2016 before the trial Court seeking permanent injunction against the petitioner and her husband, namely, Jasvinder Singh Makkad. The suit was registered on the same day and 23.08.2016 was fixed for filing written statement. On the same day, the learned trial Court also considered the interim injunction application and passed order directing the petitioner not to enter forcefully inside the property in dispute and not to interfere in the peaceful possession of the respondents. Against the said order, a Misc. Civil Appeal no. 52 of 2016 was filed, in which an interim order was passed in favour of the petitioner, staying the effect and operation of the order of the trial Court. The Appellate Court’s order was challenged before this court in Writ Petition (MS) No. 1987 of 2016. The said writ petition was allowed and the order passed by the Appellate Court was set-aside and the matter was remanded back to the Appellate Court for deciding the appeal, itself. Thereafter, the said appeal has been dismissed by the impugned judgment. 3. The Appellate Court, prima-facie held that the respondent is the owner in possession of the property in dispute; the appellant and her husband have given threats to the respondents that they will forcefully occupy the property in dispute, therefore, the Appellate Court held that the trial Court did not commit any manifest error of law or illegality in passing the order. Ultimately, the Appellate Court dismissed the appeal of the petitioner. 4. Heard learned counsel for the parties and have gone through the material available on record. 5. Ultimately, the Appellate Court dismissed the appeal of the petitioner. 4. Heard learned counsel for the parties and have gone through the material available on record. 5. Learned counsel for the petitioner submits that on 17.05.2016 husband of the petitioner dropped the petitioner and the children to her parental house for summer vacations; the petitioner came back on 02.07.2016 to the shared household, but she was asked to leave the said house on the pretext of an injunction order dated 27.06.2016 obtained by the respondents. He submits that petitioner was dropped by the respondent no.1 at her parental place under some conspiracy, as the petitioner was at her parental house, the respondents have field the said suit in the Court of Civil Judge (SD), Dehradun, specifically at the time, when Civil Courts were closed for summer vacations, along with an application under Rule 13 of General Rule Civil, seeking permission to institute a suit during vacations. He submitted that without offering opportunity of hearing to the petitioner, the trial Court passed an ex-parte injunction. He submitted that the trial Court and the Appellate Court have erred in law in granting injunction in favour of the respondents. He submitted that orders of the Courts below are liable to be dismissed. 6. On the other hand, counsel for the respondents submits that admittedly, the respondents are the owner in possession of the house in question. He submits that infact the petitioner and her husband are not residing in the house, therefore, the judgment and order passed by the Courts below is not interferable. He then submits that 23.09.2016 is fixed before the trial Court for advancement of further arguments on the interim injunction application bearing no. 6C-2 and on that day, the matter will be finalized. 7. On this, counsel for the petitioner also submitted that at present the petitioner is not residing in the house in dispute, as she has been forcefully removed from the house in dispute. 8. I have considered the rival submissions of the counsel for the parties. 9. It is not a case between two outsiders, but it is a case where the in-laws have filed the suit for permanent injunction against their daughter-in-law and their own son. 8. I have considered the rival submissions of the counsel for the parties. 9. It is not a case between two outsiders, but it is a case where the in-laws have filed the suit for permanent injunction against their daughter-in-law and their own son. The said suit was registered; along with the suit the interim injunction application, so filed, was also considered by the learned trial Court same day and the trial Court granted ex-parte interim injunction same day. In my view, in such matter the trail Court, before passing interim injunction in favour of the respondents/plaintiffs, at least, should have considered the version of the petitioner/defendant. Now interim order is continuing in favour of the respondent. Further, now it is admitted to both the parties that at present the petitioner is not residing in the house in dispute, therefore, I do not think that the order passed by the trial Court should be interfered with at this stage, but since the date is fixed on 23.09.2016, the trial Court is directed to decide the interim injunction application bearing no. 6C-2, either on the date fixed or within a period of ten days thereafter. 10. It is also observed that the trial Court will not be influenced, in any manner, by the observations made by the Appellate Court as well as by this Court and will decide the matter independently, on the merits of the case. 11. It is further observed that incase the petitioner approaches before any other forum i.e. under Domestic Violence Act, Dowry Prohibition Act or other appropriate forum for redressal of her grievances, in that event, the concerned Court/Forum will not be influenced by the observation made by this Court, or lower appellate Court or order passed by the trial Court. That Court/Forum will be free to exercise the power under the Act. 12. This disposes of the writ petition.