Gujarat High Court
Makwana Mahendrabhai Mohanbhai vs Makwana Pushpaben Mahendrabhai on 8 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/3127/2024 ORDER DATED: 08/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3127 of 2024
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MAKWANA MAHENDRABHAI MOHANBHAI
Versus
MAKWANA PUSHPABEN MAHENDRABHAI
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Appearance:
MR DHRUV R THAKKAR(11280) for the Appellant(s) No. 1
BINNI B DESAI(9072) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/01/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The present Appeal is filed under Section 96 of the Code of Civil Procedure challenging the judgment and decree passed by the learned Family Court, Ahmedabad in Family Suit No.1921 of 2017, whereby the suit of the plaintiff-respondent was decreed.
2. Heard learned advocate Mr. Dhruv R. Thakkar for the appellant and learned advocate Ms. Binni B. Desai for respondent.
3. With the consent of the learned advocates for the parties, this matter is taken up for final hearing.
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4. The brief facts of the case are as under:-
4.1. Plaintiff-respondent filed the suit for a relief of permanent injunction restraining appellant-defendant from transferring the suit property i.e. G-103, Karnavatinagar, Opposite Municipal Swimming Pool, Sabarmati, Ahmedabad by way of executing a sale deed, mortgage, gift deed etc. and also from creating any right in the suit property. The marriage between the appellant-
husband and respondent-wife was solemnized before 31 years and two children namely Sanjay and Hitendra were born out of the said wedlock. The appellant started humiliating respondent physically as well as mentally under the influence of liquor and did not give money for household expenses, medical treatment of children. The respondent purchased a residential property being the suit property and thereafter, appellant and respondent shifted in the suit property. Even after shifting in the suit property, the harassment continued which resulted into an attempt of suicide by the respondent-wife. Later on, appellant insisted to allow one female friend named Ranjan to reside in Page 2 of 8 Uploaded by RINKU MALI(HC01574) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:09:39 IST 2025 NEUTRAL CITATION C/FA/3127/2024 ORDER DATED: 08/01/2025 undefined the suit property with the appellant and respondent. The appellant threatened respondent to vacate the suit property as he intends to sell the same. Resultantly, the suit came to be filed by the respondent-wife against the appellant-husband for a relief of permanent injunction.
5. Learned advocate for the appellant submitted that the respondent has suppressed the material facts and the decree has been obtained by fraud. It is further submitted that the respondent after the marriage, started harassing the mother-in- law and many a time, leaders of the society were called to resolve the dispute. Because of the constant quarrels of the respondent, the appellant along with respondent moved to Ahmedabad from Mehsana with the children. It is further submitted that the suit property was purchased by the appellant in the year 2001 on loan that was availed from a private Bank. The appellant has paid loan installments from 2001 to 2018 but thereafter, because of financial crisis, appellant has defaulted in Page 3 of 8 Uploaded by RINKU MALI(HC01574) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:09:39 IST 2025 NEUTRAL CITATION C/FA/3127/2024 ORDER DATED: 08/01/2025 undefined repayment of loan installments. It is further submitted that the respondent had beaten the appellant and kicked him out of house and the appellant has been living in a rented house since 16.05.2017. It is further submitted that the respondent has alternate accommodation also but she has suppressed the said fact in the plaint. It is further submitted that the appellant is also paying Rs.20,000/- per month as maintenance under the proceedings filed by the respondent-wife. It is, therefore, prayed that the appeal may be allowed and the judgment and decree may be quashed and set aside.
6. Per contra, learned advocate for respondent-plaintiff supported the judgment and decree passed by the learned Family Court and submitted that upon the insistence of the family members of the appellant, the appellant and respondent shifted in the suit property, which was purchased by the appellant. The appellant used to harass her after marriage and after shifting to Ahmedabad from Mahesana, the appellant insisted to keep one Page 4 of 8 Uploaded by RINKU MALI(HC01574) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:09:39 IST 2025 NEUTRAL CITATION C/FA/3127/2024 ORDER DATED: 08/01/2025 undefined lady Ranjan in the suit property. As respondent refused such demand of appellant, appellant left the suit property leaving respondent and two children in the suit property. As the appellant defaulted in repaying the loan installments, the Bank issued a notice. It is submitted that after the appellant stopped paying installments of loan, the respondent is paying installments against the loan. It is submitted that as appellant was not maintaining two children and respondent, the respondent filed Criminal Miscellaneous Application No.2290 of 2017 under Section 125 of the Code of Criminal Procedure and also filed a complaint under the provisions of the Protection of Women from Domestic Violence Act, 2005 against the appellant. The appellant was directed to pay Rs.20,000/- as maintenance under the proceedings of Section 125 of Cr.P.C. It is further contended that the respondent being a legally wedded wife of the appellant, she has a right to reside in the suit property and if the appellant succeeds in his motive of selling out the suit property, the respondent would be shelter-less. It is Page 5 of 8 Uploaded by RINKU MALI(HC01574) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:09:39 IST 2025 NEUTRAL CITATION C/FA/3127/2024 ORDER DATED: 08/01/2025 undefined further contended by learned advocate for the respondent that the appellant has not fully completed the cross-examination and has also not filed any oral or documentary evidence in the suit proceedings. In absence of any contrary evidence, the appeal requires to be dismissed by upholding the findings arrived at by the learned Family Court.
7. We have considered the submissions of learned advocates for the parties and also perused the record. Appellant and respondent are husband and wife and are married for more than 31 years prior to 2017. Two children were aged about 28 years and 26 years respectively at the time of filing the suit. The suit property was undisputedly owned by the appellant-husband. The suit property was having a charge of bank from whom, a loan was availed of by the husband. The appellant contested the suit by filing a Written Statement at Exhibit-15, but learned trial Court has observed that the respondent wife was not cross- examined fully and left the cross-examination incomplete. It has been observed by the learned trial Court that the appellant, Page 6 of 8 Uploaded by RINKU MALI(HC01574) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:09:39 IST 2025 NEUTRAL CITATION C/FA/3127/2024 ORDER DATED: 08/01/2025 undefined thereafter, has neither led any oral nor documentary evidence in support of his contentions. Learned advocate for the appellant could not contradict the said fact which has come on record. During the course of submissions, learned advocate for the appellant could not point out any illegality being committed by the learned Family Court in decreeing the suit. What has been urged before us by the appellant is that the respondent-wife has an alternative accommodation and the respondent-wife has suppressed material facts. To substantiate the contentions raised by the appellant, nothing adverse could be pointed out from the record which can weigh this Court to disturb the findings of fact. In catena of decisions, the law has been laid down that merely because a second view is available, the appellate Court should not re-appreciate or re-evaluate the evidence.
8. In the above set of facts, we are of the opinion that the respondent-wife is entitled to retain the possession of the suit property and the appellant cannot, by way of a short-cut method, Page 7 of 8 Uploaded by RINKU MALI(HC01574) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:09:39 IST 2025 NEUTRAL CITATION C/FA/3127/2024 ORDER DATED: 08/01/2025 undefined evict respondent from the settled possession. By not contesting the suit and thereafter, challenging the judgment and decree passed by the learned Family Court, speaks volume about the conduct of the appellant. The appellant could not point out as to how and in what manner the impugned judgment and decree is hurting him. It seems from the conduct of the appellant during the trial that the challenge is made against the impugned judgment and decree just to see that the litigation is dragged unnecessarily. As we do not find any illegality being committed by the learned Family Court in decreeing the suit, First Appeal is dismissed. Record and proceedings, if received, be sent back to the concerned Court.
(BIREN VAISHNAV, J) (D. M. DESAI,J) RINKU MALI Page 8 of 8 Uploaded by RINKU MALI(HC01574) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:09:39 IST 2025