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2022 DIGILAW 1477 (RAJ)

Suresh Sharma v. Dhanwanti Sharma

2022-05-07

ANOOP KUMAR DHAND, PANKAJ BHANDARI

body2022
ORDER Anoop Kumar Dhand, J. - By way of filing this appeal, the appellants have challenged the order dated 07.04.2022 passed by the learned Single Judge by which the writ petition filed by the appellants against the impugned order dated 08.03.2019 passed by the Sub-Divisional Officer, Jaipur has been dismissed. 2. Learned counsel for the appellants submitted that the respondent submitted an application under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short 'the Act of 2007') with the prayers to direct the appellants not to abuse her and not to alienate the property in dispute and the possession of the property in dispute be handed over to her. Counsel for the appellants further submitted that the aforesaid application was submitted on 06.03.2019 and on that day notices were issued to the appellants for their appearance on 08.03.2019. On 08.03.2019 when the appellants appeared before the competent authority, the competent authority passed an interim order by granting final relief to the respondent directing the appellants to vacate the property in question within a period of one month. At the same time Site Inspection Commissioner was also appointed to visit the house in question and prepare a list of articles lying there with regard to ownership. Feeling aggrieved by the impugned order dated 08.03.2019, the appellants knocked the doors of this Court by way of filing a writ petition before the learned Single Judge which was dismissed vide order dated 07.04.2022. Lastly, counsel for the appellants submitted that it is the settled principle of law that no final relief can be granted by passing an interim order. 3. Per contra, learned counsel for the respondent opposed the arguments raised by the counsel for the appellants and submitted that the respondent is an old infirm lady. After death of her husband, the property in question was purchased by her and she has not been allowed to reside in this property. Since she was not having any accommodation to reside, hence, she has to reside with her daughter at Ahmedabad. Counsel further submitted that there is no illegality in the order passed by the Sub-Divisional Officer and the learned Single Judge has rightly upheld the order passed by the Sub-Divisional Officer. 4. Heard. Considered the arguments raised by counsel appearing for the parties. 5. Counsel further submitted that there is no illegality in the order passed by the Sub-Divisional Officer and the learned Single Judge has rightly upheld the order passed by the Sub-Divisional Officer. 4. Heard. Considered the arguments raised by counsel appearing for the parties. 5. From a bare perusal of the provisions of the Act of 2007, it is clear that a senior citizen can file an application under Section 5 of the Act of 2007 for grant of maintenance, but here in the instant case an application has been submitted by the respondent under Section 23 of the Act of 2007 with multiple prayers including the prayer for getting possession of the property in question. It is the well recognized principle of law that no final relief can be granted by way of passing an interim order. Here in the instant case, by passing the impugned order, final relief has been granted to the respondent by directing the appellants to vacate the property in question. 6. In this connection, we may appropriately refer to the decision of the Supreme Court in Bharat Sanchar Nigam Ltd. and Ors. Vs. Prem Chand Premi and Anr. reported in (2005) 13 SCC 505 . In the said decision it was held by the Supreme Court that the High Court should not have granted the ultimate relief at the interim stage as the issue seems to be a highly debatable one. In State of U.P. and Ors. Vs. Ram Sukhi Devi reported as (2005) 9 SCC 733 , the Supreme Court again had an occasion to deal with a similar issue as to whether the Court should grant almost the final relief by way of interim measure. In that connection, in paragraph 8 of the said judgment, the Supreme Court held as follows: '...Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case having been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See CCE v. Dunlop India Ltd. (1985) 1 SCC 260 , State of Rajasthan v. Swaika Properties (1985) 3 SCC 217 , State of U.P. v. Visheshwar (1995) Supp (3) SCC 590, Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. [See CCE v. Dunlop India Ltd. (1985) 1 SCC 260 , State of Rajasthan v. Swaika Properties (1985) 3 SCC 217 , State of U.P. v. Visheshwar (1995) Supp (3) SCC 590, Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa (1995 Supp (2) SCC 593), Shiv Shankar v. Board of Directors, U.P.SRTC (1995 Supp (2) SCC 726) and Commr/Secy to Govt. Health and Medical Education Deptt. Civil Sectt. v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214)]. No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above, that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench and without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons...' 7. Since the main application under Section 23 of the Act of 2007 is still pending for adjudication before the Sub-Divisional Officer and various final prayers are sought in the said application including the prayer for getting possession of the property in question. The main petition would be decided by the lower Court after conducting the enquiry and after considering the evidence and documents of both sides and after affording the opportunity of hearing to both sides. But before crossing that stage, the Court below has passed an interim order in the nature of final order directing the appellants to vacate the premises. 8. Having considered the ratio of the aforesaid decisions of the Hon'ble Supreme Court, we hold that final relief granted to the respondent by way of an interim order dated 08.03.2019 cannot be granted, inasmuch as if such prayer is granted, the same would amount to grant of final relief in the form of an interim relief, which cannot be granted as settled by the Hon'ble Supreme Court. 9. We may also refer to the decision of the Hon'ble Supreme Court in Deoraj vs. State of Maharashtra and Ors. reported in (2004) 4 SCC 697. In paragraph 12 of the said judgment, the Hon'ble Supreme Court stated as follows: 'Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. 9. We may also refer to the decision of the Hon'ble Supreme Court in Deoraj vs. State of Maharashtra and Ors. reported in (2004) 4 SCC 697. In paragraph 12 of the said judgment, the Hon'ble Supreme Court stated as follows: 'Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favor. In such cases the availability of a very strong prima facie case -- of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favor of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent.' 10. In the said judgment, the Hon'ble Supreme Court has cautioned that the power to grant any interim injunction by way of granting a final relief should be rarely exercised in rare and exceptional cases, and the Court should grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing. 11. 11. In our view, the interim order dated 08.03.2019 passed by the Sub-Divisional Officer directing the appellants to vacate the house premises at this initial stage, the main application of the respondent shall stand automatically allowed without permitting the parties to place their respective cases at the time of hearing of the main application/petition. In this case, the appellants have not yet filed counter affidavit/ reply to the application/petition of the respondent. 12. The learned Single Judge has not taken into consideration the above ratio decided by the Hon'ble Supreme Court that interim order in the nature of final relief cannot be granted. 13. In view of the above discussion, the impugned order dated 07.04.2022 passed by the learned Single Judge is quashed and set aside. Resultanty, the impugned order dated 08.03.2019 passed by the Sub-Divisional Officer is also quashed and set aside. 14. The parties are directed to appear before the Sub-Divisional Officer on 23.05.2022. 15. With the above observations, the special appeal (writ) filed by the appellants stands allowed. 16. Since the matter is sub judice before the Sub-Divisional Officer, Jaipur, the Sub-Divisional Officer, Jaipur is expected to decide the matter expeditiously as early as possible but not later than three months from the date of receipt of a certified copy of this order after affording opportunity of hearing to both the parties. Time line be adhered to strictly so that the respective rights of the parties can be crystallized.