Bombay High Court
Ritika Prashant Jasani vs Anjana Niranjan Jasani on 26 September, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
Ritika Prashant Jasani v Anjana Niranjan Jasani
2023:BHC-OS:10452-DB 1-rpwl-22775-2023-J-F.doc
+Gaikwad RD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION (L) NO. 22775 OF 2023
IN
INTERIM APPLICATION (L) NO. 16938 OF 2023
IN
WRIT PETITION NO. 4472 OF 2022
Ritika Prashant Jasani,
Adult India Inhabitant, Having Address at
Flat No.81A, Acropolis, 8th Floor, 3, Little
Gibbs Road, Malabar Hill, Mumbai 400
006. ...Applicant
In the matter between
Anjana Niranjan Jasani,
Adult India Inhabitant Having Address at
Flat No.81, Acropolis, 8th Floor, 3, Little
Gibbs Road, Malabar Hill, Mumbai 400
006. AND presently residing at Flat No.17,
4th Floor, Poonam Building Opp. Petit Hall,
Nepean Sea Road, Mumbai 400 006. ...Petitioner
versus
1. Ritika Prashant Jasani,
Adult India Inhabitant, Having Address
at Flat No.81A, Acropolis, 8th Floor, 3,
Little Gibbs Road, Malabar Hill,
Mumbai 400 006.
Page 1 of 25
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2. Prashant N Jasani,
Adult India Inhabitant, Having Address
at Flat No.81A, Acropolis, 8th Floor, 3,
Little Gibbs Road, Malabar Hill,
Mumbai 400 006. ...Respondents
A PPEARANCES
for the Applicant Mr Robin Jaisinghani, with Jacinta
D'Silva, i/b Kishor Maru.
for the Mr Rohit Kapadia, Senior
Respondents Counsel, with Mayur
Khandeparkar, Counsel, Neuty
Thakkar, Paricher Zaiwala, i/b
Tushar Goradia.
CORAM : G.S.Patel &
Neela Gokhale, JJ.
RESERVED ON : 30th August 2023
PRONOUNCED ON : 26th September 2023
JUDGMENT (Per Neela Gokhale, J.):-
1. Admit.
2. The Review Petitioner, Ritika, is the daughter-in-law of the
original Writ Petitioner, Anjana. Ritika seeks review of our order of
31st July 2023. We made that order on Anjana's Interim Application
(L) No 16938 of 2023. The Writ Petition itself had been earlier
disposed by an order of 20th October 2022.
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3. The case has a checkered history. The dispute between Ritika
and Anjana is about a residential flat No 81A, Acropolis, 8th Floor, 3
Little Gibbs Road, Malabar Hill, Mumbai 400 006. Ritika presently
stays in the flat with her minor school-going daughter. Anjana is, and
for some time has been, living elsewhere in another flat at Nepean
Sea Road.
4. This conflict between mother-in-law and daughter-in-law
arises under the Maintenance and Welfare of Parents and Senior
Citizens Act 2007 ("the Senior Citizens Act"). It is, as many of
these are, a dispute about vacant possession of a residence.
Typically, these cases follow a discernible pattern: the senior citizen
in question complains of mistreatment by a son, daughter, son-in-
law, daughter-in-law, or some combination of these, and seeks
protection under the Senior Citizens Act. The main relief almost
always is to remove the younger generation from the flat altogether,
i.e., a demand for vacant possession.
5. By way of background, we note that on 15th December 2020,
Anjana got an order of eviction against Ritika from the Tribunal
under the Senior Citizens Act. Ritika succeeded in her Writ Petition
No 2631 of 2021; the order was set aside and the matter remanded.
Anjana moved the Tribunal again. On 8th December 2021, the
Tribunal made an order that Anjana and Ritika (and her husband
Prashant) were to share the Acropolis flat, but in separate rooms.
There were other directions, but those need not concern us today.
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6. Anjana appealed. She wanted (and wants) exclusive
possession, i.e., to evict Ritika altogether from the Acropolis flat.
The Appellate Authority dismissed Anjana's appeal on 25th March
2022. Anjana challenged this appellate order in the present Writ
Petition No 4472 of 2022. On 20th October 2022, a Division Bench
disposed of the Writ Petition. The operative portion is this:
"(a) The residential arrangement made by the
Maintenance Tribunal and confirmed by the Appellate
Tribunal is confirmed for a period of six months from
today.
(b) Respondent No.1 is at liberty to assert her rights
as per the provisions of Protection of Women from
Domestic Violence Act, 2005 within the period of six
months from today.
(c) If she does not take steps, the respondents are
evicted from the flat in question and they are directed to
handover peaceful and vacant possession of the flat in
question to the petitioner.
(d) If respondent no.1 takes steps as mentioned
above, the appropriate authority is at liberty to decide
her claim on the basis of merits and the residential
arrangement made by the Tribunals will be subject to
decision taken by the appropriate authority.
(e) There is no interference in the rest of the
arrangement made by the Tribunals."
(Emphasis added)
7. Ritika filed complaint No. 10/DV/2023 under the Protection
of Women from Domestic Violence Act, 2005 ("DV Act") before
the Metropolitan Magistrate, Girgaon, Mumbai ("DV Court").
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8. The six-month period in this order ended on 20th April
2023. Until then, Ritika had obtained no order from the DV Court.
9. Anjana moved the Senior Citizens Tribunal again, contending
out that since the six-month period had ended and Ritika had
obtained no order from the DV Court, Anjana was entitled to apply
for further orders from the Tribunal under clause (c) of the High
Court order.
10. On 2nd May 2023, noting these facts, and specifically noting
that there was no order of the DV Court, the Senior Citizens
Tribunal made an order directing possession of the Acropolis flat to
be handed over to Anjana -- i.e., it made an order of eviction
against Ritika. The Tribunal also directed police assistance in
implementing the said order.
11. Before the 2nd May 2023 order could be executed, but after it
was passed, on 8th May 2023, as an interim measure, the DV Court
restrained Anjana from dispossessing Ritika 'except by following due
process of law.' It also restrained her from causing domestic violence
to the Applicant.
12. This led Anjana to file Interim Application (L) No.16938 of
2023 in her disposed Writ Petition No.4472 of 2022. Prayer (b) of
the Interim Application reads as under:
"(b) this Hon'ble Court be pleased to pass necessary
orders/directions to the concerned Officer/authority
designated by the Presiding Officer, Senior Citizen's
Tribunal to evict the Respondent No.1 from the Flat
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No.81A, Acropolis, 8th floor, 3 Little Gibbs Road, Malabar
Hill, Mumbai - 400 006 and to further handover vacant and
peaceful possession of the Flat to the Applicant in
implementation of the order dated 20th October 2022 read
with Order dated 2nd May 2023 with the assistance of
police protection on such terms and conditions as this
Hon'ble Court may deem fit and proper;"
13. We heard Anjana's Interim Application fully after Ritika filed
an Affidavit in Reply. By our order dated 31st July 2023, we allowed
the Interim Application in terms of prayer (b) above. On a request
made by Ritika's advocate, we stayed our order for four weeks since
Ritika's daughter had ongoing examinations.
14. Ritika now seeks review of our order of 31st July 2023.
15. Mr RS Jaisinghani appears for Ritika in the Review Petition.
Straightaway, he clarifies that he has no grievance, and can have no
grievance, about shared possession of the Acropolis flat. The
objection is to the order evicting Ritika.
16. The Review Petition is based on two broad submissions. First,
that our order under review has a patent error apparent on the face
of the record, one of want of jurisdiction: once the Writ Petition was
disposed of, Anjana could not, by an Interim Application on what
was a fresh cause of action, seek additional relief. Second, that our
order on Anjana's Interim Application in her disposed Writ Petition
was made without noticing, adverting to, or considering, the binding
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decision of the Supreme Court in S Vanitha v Deputy Commissioner,
Bengaluru Urban District & Ors.1
17. Mr Jaisinghani invites us to read the 20th October 2022 order
with him. Closely read, he submits, that order had two portions
crucial to the Anjana's new Interim Application. The first was
clause (c), to be read with clause (b). The second, which we did not
consider at all he says, was clause (d). At the cost of repetition, these
three clauses are extracted again so that there is no ambiguity in
appreciating this submission.
(b) Respondent No.1 is at liberty to assert her rights
as per the provisions of Protection of Women from
Domestic Violence Act, 2005 within the period of six
months from today.
(c) If she does not take steps, the respondents are
evicted from the flat in question and they are directed to
handover peaceful and vacant possession of the flat in
question to the petitioner.
(d) If respondent no.1 takes steps as mentioned above,
the appropriate authority is at liberty to decide her claim on
the basis of merits and the residential arrangement made by
the Tribunals will be subject to decision taken by the
appropriate authority.
(Emphasis added)
18. The clue to understanding the structure of this, Mr
Jaisinghani submits, is in clause (c). What clause (b) required was
that Ritika 'take steps'. The order did not say she had to obtain an
order from the DV Court; she only had to take steps, i.e., to file an
1 (2021) 15 SCC 730 : 2020 SCC OnLine SC 1023.
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application. This Ritika did well within the six-month period. It was
not in Ritika's hands to decide when an order would be made on her
application -- and the Division Bench was undoubtedly fully aware
of this, and for this reason did not say that she had to obtain an order
from the DV Court, but only that she had to 'take steps'. What if
Ritika did not 'take steps', i.e., did not move the DV Court or make
any application at all? The answer is in clause (c), because the
Division Bench then made a self-operative provision: if Ritika did
not take steps, she would suffer eviction. But this means, Mr
Jaisinghani submits, that Ritika could suffer eviction only if she did
not make an application to the DV Court. If she did, then clause (d)
would apply, and the Senior Citizens Tribunal would then, on
Anjana's application, have to decide her claim on merits. The earlier
arrangement (of sharing the Acropolis flat) would be subject to that
decision.
19. What both the Senior Citizens Tribunal and our Bench has
been persuaded to do, Mr Jaisinghani submits, is to mistake the
expression 'take steps' for 'obtain an order'. There is nothing in the
20th October 2022 Division Bench order on Anjana's Writ Petition
that requires Ritika to actually obtain an order of the DV Court. She
only had to make an application to that Court.
20. That Ritika did take steps is a matter of record. In fact, this is
precisely how Anjana understood the 20th October 2022 order on
the Writ Petition, for she did not proceed directly under clause (c) to
attempt to evict Ritika, but moved the Senior Citizens Tribunal
under clause (d). The moment Anjana did that, she accepted -- or
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must be deemed to have accepted, Mr Jaisinghani says -- that Ritika
did in fact 'take steps'.
21. The facial error in the order under review, he submits, is the
misreading of 'take steps' as 'obtain an order'. The Senior Citizens
Tribunal and the DV Court function under distinct statutes with
different jurisdictions. None can make an order in the other's
jurisdiction. Therefore, Ritika was not expected to obtain an order
but only to take steps in regard to her complaint that she was being
subjected to domestic violence by Anjana.
22. This leads ineluctably, Mr Jaisinghani submits, to a facial
error apparent, one of a lack of jurisdiction. The 2nd May 2023
order that Anjana got from the Senior Citizens Tribunal was a
further order that gave her a further and fresh cause of action. Until
then she did not have an order of eviction at all. In fact, this had
been denied to her all along. The only order was for sharing the
Acropolis flat, to which Ritika has no objection. It is settled law, Mr
Jaisinghani submits, that a court is functus after it disposes of a
proceeding before it. It cannot then take up and decide a fresh
substantive application on new facts and subsequent events filed in
the disposed proceeding. He relies on the decision of the Supreme
Court in State of UP v Brahm Datt Sharma.2 In paragraph 10, the
Supreme Court said:
10. The High Court's order is not sustainable for yet
another reason. Respondents' writ petition challenging
the order of dismissal had been finally disposed of on 10-
8-1984, thereafter nothing remained pending before the
2 (1987) 2 SCC 179.
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High Court. No miscellaneous application could be filed
in the writ petition to revive proceedings in respect of
subsequent events after two years. If the respondent was
aggrieved by the notice dated 29-1-1986 he could have filed
a separate petition under Article 226 of the Constitution
challenging the validity of the notice as it provided as
separate cause of action to him. The respondent was not
entitled to assail validity of the notice before the High
Court by means of a miscellaneous application in the writ
petition which had already been decided. The High Court
had no jurisdiction to entertain the application as no
proceedings were pending before it. The High Court
committed error in entertaining the respondent's
application which was founded on a separate cause of
action. When proceedings stand terminated by final
disposal of writ petition it is not open to the court to
reopen the proceedings by means of a miscellaneous
application in respect of a matter which provided a fresh
cause of action. If this principle is not followed there
would be confusion and chaos and the finality of
proceedings would cease to have any meaning.
(Emphasis added)
23. In Ashu Dutt v Aneesha Dutt,3 a learned single Judge of this
Court, SC Gupte J, had before him an Interim Application in a
disposed writ petition under Article 227 of the Constitution of
India. An identical objection to maintainability fell for consideration.
The learned single Judge followed the decision of the Supreme
Court in Brahm Datt Sharma, holding that the Interim Application
was unrelated to the previous disposed proceeding.
3 2020 SCC OnLine Bom 825 : (2021) 2 Bom CR 361.
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24. Thus, Mr Jaisinghani submits, our Bench's order was entirely
without jurisdiction. Anjana's freshly obtained order from the
Senior Citizens Tribunal could not have been the subject of an
interim application in her disposed Writ Petition. It furnished a
fresh and entirely new cause of action.
25. This formulation is most strenuously contested by Mr
Kapadia, learned Senior Counsel for Anjana. The 2nd May 2023
order, Mr Kapadia submits, was one specifically contemplated by
the 20th October 2022 final order on Anjana's Writ Petition. She
was allowed to move the Senior Citizens Tribunal under clause (d),
if Ritika took steps. If she did not, then Anjana had no need to move
any authority: the Division Bench order on the Writ Petition was
itself sufficient under clause (c). Leaving aside this question of
taking steps versus obtaining an order, which Mr Kapadia describes
as little more than a needless distraction, the fact remains that
Anjana followed the Division Bench order to the letter. Her
application to the Senior Citizens Tribunal was pursuant to clause
(d) of the 20th October 2022 order. The 2nd May 2023 order on her
application by the Senior Citizens Tribunal was intrinsically and
intricately bound up with the 20th October 2022 order. Indeed,
Anjana could not have maintained a separate Writ Petition at all.
There was no cause of action as there was nothing to impeach. All
that she sought in her Interim Application -- as distinct from both
the Brahm Datt Sharma case and the Dutt v Dutt case -- was an
implementation of the consequences of the 20th October 2022 Division
Bench order itself made on the Writ Petition. Anjana was seeking no
fresh relief -- it was the same relief she had sought all along, and
which came to her incrementally, and late.
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26. Mr Kapadia submits believe that while the general principle in
Brahm Datt Sharma is, of course, well settled, it is also true that
there is at least one recognized exception. This was voiced in KA
Ansari v Indian Airlines Ltd.4 The earlier decision in Brahm Datt
Sharma was cited. The KA Ansari court held that the general
principle would not apply where no fresh relief was being sought.
An application for pursuing and implementation of the relief already
granted in the writ petition was always maintainable. In this case,
the Division Bench in its order of 20th October 2022 provided for
both contingencies: if Ritika 'took steps' and if she did not do so. If
she did not take steps, then there was a built-in provision for Ritika's
eviction. If she did take steps, clause (d) would operate; Anjana
would have to move the Senior Citizens Tribunal, and that is
precisely what she did. Consequently, Anjana's Interim Application
was the only logical and possible course of action for
implementation and pursuing the 20th October 2022 order on the
Writ Petition itself.
27. We believe Mr Kapadia to be correct in his submissions.
Anjana's application in 2023 was not a fresh application. It was one
made, and could only have been made, pursuant to and in
implementation of the Division Bench order of 20th October 2022.
28. Apart from this, Mr Kapadia is also correct in saying that such
a ground is not a reason for review. Our review jurisdiction is
circumscribed by Section 114 and Order XLVII of the Code of Civil
Procedure, 1908 (CPC). Section 114 reads:
4 (2009) 2 SCC 164.
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"114. Review.--Subject as aforesaid, any person
considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed
by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed
by this Code, or
(c) by a decision on a reference from a Court of Small
Causes,
may apply for a review of judgment to the Court
which passed the decree or made the order, and the Court
may make such order thereon as it thinks fit."
Order XLVII reads:
ORDER XLVII -- REVIEW
1. Application for review of judgment.--(1) Any
person considering himself aggrieved--
(a) by a decree or order from which an appeal is
allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is
allowed, or
(c) by a decision on a reference from a Court of Small
Causes,
and who, from the discovery of new and important
matter or evidence which, after the exercise of due diligence
was not within his knowledge or could not be produced by
him at the time when the decree was passed or order made,
or on account of some mistake or error apparent on the
face of the record, or for any other sufficient reason,
desires to obtain a review of the decree passed or order
made against him, may apply for a review of judgment to
the Court which passed the decree or made the order.
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(2) A party who is not appealing from a decree or order
may apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where
the ground of such appeal is common to the applicant and
the appellant, or when, being respondent, he can present to
the Appellate Court the case on which he applied for the
review.
Explanation.--The fact that the decision on a question of
law on which the judgment of the Court is based has been
reversed or modified by the subsequent decision of a
superior Court in any other case, shall not be a ground for
the review of such judgment."
(Emphasis added)
29. Thus, a Review Application will be maintainable on: (a)
discovery of new and important matters or evidence which after
exercise of due diligence were not within the knowledge of the
Applicant or could not be produced when the order was passed; (b)
on account of some mistake or error apparent on the face of the
record; or (c) for any other sufficient reason.
30. The argument on maintainability does not fall within any of
these parameters. This is not a question of mistake. Given the law,
and the frame of the Interim Application, there is no error apparent
on the face of the record.
31. This takes us to the second argument, the one based on a
reading of the Supreme Court decision in S Vanitha v Deputy
Commissioner, Bengaluru Urban District & Ors.5 Before we proceed
5 (2021) 15 SCC 370.
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to that discussion, we note that neither the order of 20th October
2022, nor the order of 2nd May 2023 of the Senior Citizens
Tribunal were ever assailed by Ritika. She took no exception to the
eviction clause in the 20th October 2022 Division Bench order; and
the 2nd May 2023 order was a result, consequence and a sequitur to
clause (d) of the 20th October 2022 order.
32. We believe we are fortified in this view by the decision Mr
Kapadia next cites of a Division Bench of this Court in Archana
Nilesh Gore & Anr v Municipal Corporation of Greater Mumbai & Ors.6
The Court had before it an interim application for modification of an
earlier order. After the order disposing of the writ petition, the
answering respondents denied benefits to the petitioners on the
ground that they did not 'scrupulously fulfil' all conditions because
they did not possess certain qualifications. This, the applicants said,
the Division Bench knew full well when it disposed of the writ
petition. The MCGM submitted that the interim application was
not maintainable, being filed in a disposed writ petition. It relied
inter alia on the decisions in Brahm Datt Sharma and Dutt v Dutt.
The Division Bench hearing the interim application drew support
from the Supreme Court decision in KA Ansari and rejected the
submission that the interim application was not maintainable. 7 The
Division Bench held that the interim application did not raise a
'new/fresh dispute requiring fresh adjudication of the lis'. The grievance
of the applicants was previously adjudicated when disposing of the
6 2021 SCC OnLine Bom 12962 :
7 It seems that it was the Court that identified the KA Ansari judgment
and gave copies to all Advocates with liberty to address.
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writ petition. The relief now sought was clarificatory. Importantly, it
observed that--
No fresh relief on the basis of a new cause of action is being
sought...
33. Lastly, Mr Kapadia points out that even if all else is kept
aside, and we have regard to the DV Court order, even then
Anjana's Interim Application was maintainable. All that the DV
Court said was that Ritika was not to be dispossessed without
following the due process of law. But that is precisely what Anjana
did: when she applied to the Senior Citizens Tribunal and obtained
an order on 2nd May 2023, she 'followed the due process of law'.
No other recourse was available to her. In our view, this submission
too is correctly placed.
34. Thus, the ground on want of maintainability of Anjana's
Interim Application and therefore our lack of jurisdiction is without
substance and is rejected.
35. Anjana's Interim Application before us was necessitated
because, despite the 2nd May 2023 order of the Senior Citizens
Tribunal, the Commissioner, Social Welfare, declined to enforce it,
citing the DV Court order of 8th May 2023. This takes us to the
next submission from Mr Jaisinghani, viz., that our order under
review overlooked the Supreme Court decision in S Vanitha v
Deputy Commissioner, Bengaluru Urban District & Ors.8 The point he
makes is this: Section 3 of the DV Act has a concept of a 'shared
8 (2021) 15 SCC 730 : 2020 SCC OnLine SC 1023.
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household'. The Supreme Court interpreted this expression in S
Vanitha. In that case, it dealt with both the Senior Citizens Act (of
2007) and the DV Act (of 2005). Specific findings on law were
returned that a claim under the DV Act that certain premises were a
'shared household' had to be determined by the appropriate forum.
That claim could not be obviated (or rendered nugatory) by evicting
the claimant in exercise of summary powers under the Senior
Citizens Act. Both statutes are special acts and are welfare
legislations. The Senior Citizens Act's summary procedure is not
available for facilitating a strategy designed to defeat a claim (in that
case, too, of a daughter-in-law) in respect of a shared household. A
shared household was one where the daughter-in-law resided with
her husband. Merely because the spouse was estranged, or residing
separately (and, by logical extension, had passed away) was no
ground to deprive a daughter-in-law of protection under the DV Act
of 2005. The concept and definition of a 'shared household' under
the DV Act is broad and exhaustive. It is not limited to joint family
property. Both Acts had to be harmonized; and the summary powers
under one could not defeat the claim under the other. Section E of
the S Vanitha decision deals with this harmonizing of competing
reliefs under the DV Act and the Senior Citizens Act. Both statutes
have non-obstante clauses. The Supreme Court held that the
dominant purpose of both statutes would have to be analysed to
ascertain if one should prevail over the other. The primary effort of
the interpreter must be to harmonize and not excise. Section 3 of the
Senior Citizens Act cannot be used to override and nullify other
protections in law, particularly that of a woman's right to a 'shared
household' under the DV Act.
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36. The Review Petition quotes paragraphs 37 to 39 of S Vanitha
(part of Section E of the judgment):
37. The above extract indicates that a significant object
of the legislation is to provide for and recognise the rights of
women to secure housing and to recognise the right of a
woman to reside in a matrimonial home or a shared
household, whether or not she has any title or right in the
shared household. Allowing the Senior Citizens Act,
2007 to have an overriding force and effect in all
situations, irrespective of competing entitlements of a
woman to a right in a shared household within the
meaning of the PWDV Act, 2005, would defeat the
object and purpose which Parliament sought to achieve
in enacting the latter legislation. The law protecting the
interest of senior citizens is intended to ensure that they are
not left destitute, or at the mercy of their children or
relatives. Equally, the purpose of the PWDV Act, 2005
cannot be ignored by a sleight of statutory
interpretation. Both sets of legislations have to be
harmoniously construed. Hence the right of a woman to
secure a residence order in respect of a shared
household cannot be defeated by the simple expedient of
securing an order of eviction by adopting the summary
procedure under the Senior Citizens Act, 2007.
38. This Court is cognizant that the Senior Citizens Act,
2007 was promulgated with a view to provide a speedy and
inexpensive remedy to senior citizens. Accordingly,
Tribunals were constituted under Section 7. These
Tribunals have the power to conduct summary procedures
for inquiry, with all powers of the civil courts, under
Section 8. The jurisdiction of the civil courts has been
explicitly barred under Section 27 of the Senior Citizens
Act, 2007. However, the overriding effect for remedies
sought by the applicants under the Senior Citizens Act,
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2007 under Section 3, cannot be interpreted to preclude all
other competing remedies and protections that are sought
to be conferred by the PWDV Act, 2005. The PWDV Act,
2005 is also in the nature of a special legislation, that is
enacted with the purpose of correcting gender
discrimination that pans out in the form of social and
economic inequities in a largely patriarchal society. In
deference to the dominant purpose of both the
legislations, it would be appropriate for a tribunal under
the Senior Citizens Act, 2007 to grant such remedies of
maintenance, as envisaged under Section 2(b) of the
Senior Citizens Act, 2007 that do not result in obviating
competing remedies under other special statutes, such
as the PWDV Act, 2005. ... Section 3 of the Senior
Citizens Act, 2007 cannot be deployed to override and
nullify other protections in law, particularly that of a
woman's right to a "shared household" under Section 17
of the PWDV Act, 2005. ... This course of action would
ensure that the common intent of the Senior Citizens Act,
2007 and the PWDV Act, 2005, of ensuring speedy relief to
its protected groups who are both vulnerable members of
the society, is effectively realised. Rights in law can
translate to rights in life, only if there is an equitable
ease in obtaining their realisation.
39. ... The fact that specific proceedings under the
PWDV Act, 2005 had not been instituted when the
application under the Senior Citizens Act, 2007 was
filed, should not lead to a situation where the
enforcement of an order of eviction deprives her from
pursuing her claim of entitlement under the law. ...
Even otherwise, we are clearly of the view that recourse
to the summary procedure contemplated by the Senior
Citizens Act, 2007 was not available for the purpose of
facilitating strategies that are designed to defeat the
claim of the appellant in respect of a shared household.
26th September 2023
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A shared household would have to be interpreted to
include the residence where the appellant had been
jointly residing with her husband. Merely because the
ownership of the property has been subsequently
transferred to her in-laws (second and third
respondents) or that her estranged spouse (fourth
respondent) is now residing separately, is no ground to
deprive the appellant of the protection that was
envisaged under the PWDV Act, 2005.
(Emphasis added)
37. Mr Jaisinghani's submission is that the 2nd May 2023 order
of eviction -- and, therefore, our order under Review -- both result
in a situation where Ritika's claim regarding a shared household
under the DV Act is defeated even before it can be properly
adjudicated. That is precisely what S Vanitha said could not done
and should not be allowed to be done. Ritika was certainly required
to 'take steps'; but, again, that is all she was required to do. She had
no obligation to obtain an order, let alone a final adjudication, before
she received the protection that the 20th October 2022 order itself
contemplated. What our order under review does, Mr Jaisinghani
contends, is to simply elide altogether any case that Ritika has under
the DV Act on the sub-silentio assumption that the 20th October
2022 Division Bench order on the Writ Petition required Ritika to
get a full-spectrum order, interim or final, in her DV Application.
That the claim of a shared household was present to the mind of the
Division Bench is clear -- that is why Ritika was permitted to 'take
steps' in the first place.
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38. Mr Kapadia's submission is that the submission based on S
Vanitha is entirely incorrect, for several reasons. First, S Vanitha was
considered in detail in the Division Bench order of 20th October
2022. There was simply no occasion, justification, or even
jurisdictional remit to reconsider what the Division Bench had held
in that regard. Even otherwise, the want of a reference to or a
consideration of S Vanitha in our order under review of 31st July
2023 furnishes no ground for review. The entire edifice of the
Review Petition is fundamentally misconceived. It proceeds on the
assumption, and it is only an assumption, that the minute Ritika did
'take steps', i.e., filed a proceeding under the DV Act, this would
automatically grant her a stay against eviction. If anything, the 20th
October 2022 order is precisely to the contrary. Clause (d) of that
order contemplates Ritika having taken steps; and then, i.e., in that
eventuality, compels Anjana to apply to the Senior Citizens Tribunal
for an order of possession. Two things are critical here, submits Mr
Kapadia: first, that the DV Court passed on order on 8th May 2023
saying only that Ritika could not be dispossessed 'without following
the due process of law'. That is exactly what Anjana did. She
followed the due process of law, and took the only proceeding
available to her, which was to move the Senior Citizens Tribunal for
enforcement of the directions in the 20th October 2022 Division
Bench order itself. These submissions are reflected in paragraphs 9,
10 and 14 of the Affidavit in Reply to the Review Petition.
39. It is important to note, Mr Kapadia submits, that Ritika has
not till date assailed the 2nd May 2023 order of the Senior Citizens
Tribunal in any proceeding. It must therefore be held to have
attained finality.
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40. The Review Petition also invokes the 17th January 2023 order
of a Division Bench (of which one of us, GS Patel J, was a member,
along with SG Dige J) in Malaika Ameet Mirchandani v Ravina
Mahendra Mirchandani & Anr.9 Not only is that case entirely
distinguishable on facts, for there the daughter-in-law had obtained
an order that her possession of one part of a three-floor structure
was not to be disturbed, but this was not even cited before us at the
time of the order under review on 31st July 2023.
41. The question before us is whether Mr Jaisinghani's
exposition on S Vanitha furnishes a ground for review within the
meaning of the CPC. We believe there is some substance to what Mr
Jaisinghani submits. It is not possible to read judgments of the
Supreme Court in a hyper-technical or strait-jacketed manner. After
all, what is it that S Vanitha tells us? And what was the context (and
the contest) there? That, too, was a dispute about possession of
property. There, as here, there were rival claims about how the
property devolved. There, as here, provisions of the Senior Citizens
Act were invoked on one side and the DV Act on the other. The
Supreme Court said, and this is critical, that the two must be
harmonized. One could not efface the other. Specifically, the
summary procedure for possession or eviction under the Senior
Citizens Act could not, the Supreme Court said, be permitted to
obliterate an unadjudicated claim under the DV Act regarding a
'shared household', a concept firmly within the meaning of the DV
Act. What did our order of 31st July 2023 effectively do? It allowed
the order under the Senior Citizens Act to proceed wholly
9 Civil Writ Petition No 8794 of 2022 along with Civil Writ Petition No
8447 of 2022.
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unaffected by Ritika's proceeding filed under the DV Act. That
proceeding is as yet without a full adjudication. Now, after our 31st
July 2023 order, if Ritika is to be removed from the Acropolis flat,
what remains of her shared household claim except a shout in the
wind or a cry in the wilderness? From the beginning, there has been
no objection whatsoever to Anjana moving in to the Acropolis flat.
Every order says so, and the very first order of the Senior Citizens
Tribunal provisions for separate rooms being occupied in the
Acropolis flat. Mr Jaisinghani has repeatedly said that he can have
no possible objection to this. What is objectionable is the summary
eviction of Ritika (and her minor daughter), i.e., the delivery of
vacant possession to Anjana -- without Ritika's claim to a shared
household being adjudicated, or now even being capable of being
adjudicated. It is pointless to contend, he submits, and we think
correctly, that Ritika has not assailed the 2nd May 2023 order of the
Senior Citizens Tribunal. Anjana has not assailed the 8th May 2023
order of the DV Court either. That has attained finality, and in
pleading after pleading, Anjana has accepted it, relying on one
portion of it ('except in due process of law') but ignoring the first
part, viz., the injunction against eviction; and also ignoring that this
conflict was precisely what the Supreme Court in S Vanitha said had
to be resolved, harmonized and dealt with on merits.
42. Mr Jaisinghani is also correct in saying that the context must
be considered. For years together, Anjana has taken up residence
elsewhere. Now, without any sort of adjudication of Ritika's claim to
rights to a shared household under the DV Act, Anjana seeks to get
summary eviction and vacant possession of the Acropolis flat. That
is the precise interdiction in S Vanitha.
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43. We do not believe Mr Kapadia's point is well taken when he
says that when disposing of the Writ Petition on 20th October 2022,
the Division Bench had fully considered the implications and import
of the Supreme Court decision in S Vanitha. Indeed, it could not
have, because Ritika had not then filed any proceeding under the DV
Act. That Division Bench thus expressly recognized that Ritika had
the right to make such a claim, and that meant to get it adjudicated,
not just present a filing. Consequently, it gave Ritika that liberty. If
the intention was to hand Anjana a possession order no matter what
Ritika did (i.e., whether she took steps or did not take steps), then
that kind of a structured order was unnecessary and even self-
defeating. It only meant that, one way or the other, Anjana had an
eviction order of vacant possession, no matter what steps Ritika did.
If she took no steps, then there would be eviction; but if she did take
steps, there would also be eviction. That could not have been the
intent or purpose of the 20th October 2022 Division Bench order on
the Writ Petition.
44. To our mind, this is clearly a manifest error apparent on the
face of the record sufficient to justify a review.
45. Having held this, we would ordinarily have proceeded to take
up Anjana's Interim Application immediately. But the change in the
roster (both on distribution of judicial work and bench composition)
will perhaps not permit that. Ours is no longer the regular bench to
which such matters are assigned. Should we take it up, it might
conceivably be an order without jurisdiction and hence a nullity. 10
10 Sohan Lal Baid v State of West Bengal & Ors, 1989 SCC OnLine Cal 224 :
AIR 1990 Cal 168 (PD Desai CJ & Shyamal Kumar Sen J; per PD Desai CJ).
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We have no objection if the matter is specifically assigned to us by an
administrative order. Should that be the case, we will make the
necessary arrangements to fix a date and time for hearing.
46. Consequently, our order of 31st July 2023 is reviewed and
recalled. Anjana's Interim Application (L) No 16938 of 2023 is
restored to file. It is to be placed before the appropriate Bench as per
the prevailing roster or administrative directions as the case may be.
All contentions are kept open, except the question of maintainability
of the Interim Application, which we have decided by this order.
47. The Review Petition is disposed of in these terms.
48. For statistical purposes, the Review Petition is to be finally
numbered without insisting on removal of office objections.
49. In the meantime, previous interim order to continue.
(Neela Gokhale, J) (G. S. Patel, J)
Signed by: Raju D. Gaikwad
Designation: PS To Honourable Judge 26th September 2023
Date: 26/09/2023 14:57:29
