Bombay High Court
Aarti W/O Jitesh Modi vs Pushpaben Popatlal Modi on 3 September, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:37013
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 257 OF 2022
WITH
INTERIM APPLICATION NO. 30503 OF 2022
Aarti w/o Jitesh Modi ...Applicant
Versus
SANTOSH 1. Pushpaben Popatlal Modi
SUBHASH 2. Jitesh Popatlal Modi ...Respondents
KULKARNI
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2025.09.03 Mr. R. R. Nair, for the Applicant in CRA/257/2022 and
20:38:17 +0530
IA/30503/2022.
Mr. Anil D'souza, i/b Kartik Vig, for Respondent No.1.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 24th JUNE, 2025
PRONOUNCED ON: 3rd SEPTEMBER, 2025
JUDGMENT:
-
1. This revision application is directed against the
judgement and decree dated 4th May, 2022 passed by the
Appellate Bench of the Court of Small Causes at Bombay in P.
Appeal No.398 of 2019, whereby the appeal preferred by
respondent No.1 against a judgment and decree passed in LE
Suit No.36/42 of 2013 came to be allowed by setting aside the
said judgment and decree, and directing the applicant -
defendant No.2 to hand over clear and vacant possession of
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Room No.40, 3rd Floor, Rishikesh Bhavan, Parel, Mumbai, ("the
suit premises") to respondent No.1.
2. The dispute between the parties has its genesis in
matrimonial and familial discord. For the sake of convenience
and clarity, the parties are hereinafter referred to in the capacity
in which they were arrayed before the trial Court.
3. Pushpaben - the plaintiff is the mother of Jitesh (D1).
Aarti (D2) - the applicant is the estranged wife of D1. Popatlal
Modi the husband of plaintiff and father of D1 was the tenant in
respect of the suit premises. Popatlal passed away on 25th
November, 1986, leaving behind plaintiff, defendant No.1,
another son Jayesh and a daughter Bhavna.
4. The plaintiff asserted, in the year 2005, Jitesh (D1),
Jayesh and Bhavna relinquished their tenancy rights in the suit
premises in favor of the plaintiff. Thereupon, the plaintiff
became the sole tenant in respect of the suit premises and,
thereafter, the landlord had issued the rent receipts in favour of
the plaintiff alone.
5. Since the marital life of the defendant Nos.1 and 2 was
afflicted with discord and there were frequent quarrels, and the
premises which was in the occupation of the family, at Dadar
was insufficient, defendant Nos.1 and 2 were allowed to occupy
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the suit premises as gratuitous licensee. In the year 2013, the
defendants, however, raked up quarrels with the plaintiff and
exerted pressure on the plaintiff to transfer the tenancy qua the
suit premises in favour of defendant No.2 purportedly with a
view to settle the claim of defendant No.2 in the matrimonial
proceedings. Thus, the plaintiff called upon the defendants to
vacate the suit premises and hand over the possession thereof
to the plaintiff. As the defendants did not accede to the request
of the plaintiff, she was constrained to institute the suit to
recover possession of the suit premises and the consequential
reliefs.
6. The defendant No.1 did not contest the suit and, thus, it
proceeded without written statement against defendant No.1.
7. The defendant No.2 stoutly resisted the suit. After
referring to the historical facts about the tenancy qua the suit
premises, defendant No.2 contended that she had been in use
and occupation of the suit premises since 1999. As the premises
of the family at Dadar was found insufficient to accommodate
all the family members of late Popatlal, she and Jitesh (D1); her
husband, shifted to the suit premises and were residing
together therein. It was denied that the tenancy was exclusively
transferred to the plaintiff under the affidavit affirmed by the
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sons and daughters of late Popatlal, dated 7 th July, 2005.
Refuting that defendant No.2 is a gratuitous licensee, it was
contended that defendant No.2 has been in the occupation of
the suit premises in her own right. It was alleged that in the
wake of the matrimonial disputes, the suit has been instituted
by the plaintiff in collusion with Jitesh (D1) with an oblique
motive to evict defendant No.2 from the suit premises.
8. The learned Civil Judge recorded the evidence of the
plaintiff (PW1) and her another son Jayesh (PW2). In the
rebuttal, defendant No.2 (DW1) entered into the witness box.
9. After appraisal of the evidence and the documents
tendered for his perusal, the learned Judge, Court of Small
Causes, was persuaded to dismiss the suit holding, inter alia,
that the plaintiff failed to establish that defendant No.2 was a
gratuitous licensee and that the alleged surrender of tenancy by
Jitesh (D1), the husband of D2, was with an intent to deprive
D2 of the right of residence in the suit premises.
10. Being aggrieved, the plaintiff preferred an appeal. The
Appellate Bench of the Court of Small Causes, after reappraisal
of the evidence, overturned the findings of the trial court
observing, inter alia, that defendant No.2 has no right to occupy
the suit premises against the wishes of the plaintiff, as the
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defendant No.2 could claim her rights only through her
husband, Jitesh (D1); who had already surrendered the rights
in the suit premises in favour of the plaintiff.
11. Being aggrieved, defendant No.2 has invoked the rivisional
jurisdiction.
12. I have heard Mr. R. R. Nair, the learned Counsel for the
applicant, and Mr. D'souza, the learned Counsel for respondent
No.1 - plaintiff, at length. The learned Counsel took the Court
through the pleadings and evidence on record.
13. Mr. Nair, the learned Counsel for the applicant,
strenuously submitted that the Appellant Bench of Court of
Small Causes was in grave error in passing the decree of
eviction. The Appellate Bench lost sight of the fact that
defendant No.2 has been in the occupation of the suit premises
as her matrimonial home. The applicant had been residing in
the suit premises alongwith her husband (D1) much prior to the
alleged surrender of tenancy by Jitesh (D1). Thus, in view of the
provisions contained in the Protection of Women from Domestic
Violence Act, 2005 ("the DV Act, 2005") the applicant was
entitled to a right of residence in the suit premises.
14. Mr. Nair laid particular emphasis on the fact that Jitesh
(D1) did not bother to contest the suit. In the wake of the
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marital discord leading to proceedings before the Family Court,
to wreak vengeance the plaintiff instituted the suit by falsely
claiming that defendant No.2 was a gratuitous licensee. In the
face of the undisputed position that defendant No.2 has been in
the occupation of the premises since the year 1999, the
Appellate Bench could not have inferred that defendant No.2
had no right, independent of that of Jitesh (D1), to continue to
occupy the suit premises.
15. In order to lend support to the aforesaid submissions, Mr.
Nair placed a strong reliance on a judgment of this Court in the
case of Roma Rajesh Tiwari vs. Rajesh Dinanath Tiwari 1 and a
judgment of the Supreme Cout in the case of Sathishchandra
Ahuja vs. Neha Ahuja2.
16. Per contra, Mr. D'souza, the learned Counsel for
respondent No.1, stoutly submitted that the Appellate Bench
was fully justified in reversing the judgment and decree passed
by the trial court. Indisputably, the plaintiff was one of the legal
heirs of late Popatlal and the rest of the legal heirs of Popatlal
had surrendered the tenancy rights in favour of the plaintiff on
7th July, 2005 itself. Defendant No.2, thus, cannot enforce her
1 2017 SCC OnLine Bom 8906.
2 (2021) 1 SCC 414.
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rights qua the property in which the plaintiff had exclusive
tenancy rights.
17. Mr. D'Souza submitted that, the reliance on the judgments
in the cases of Roma Rajesh Tiwari (supra) and Sathishchandra
Ahuja (supra) is of no assistance to the applicant as those
judgments were rendered in the proceedings arising out of the
DV Act. Defendant No.2 can very well enforce her remedies
against Jitesh (D1); her husband. However, upon termination of
the gratuitous licence, defendant No.2 has no semblance of
right to occupy the suit premises. Thus no interference is
warranted in the impugned order, in exercise of limited
revisional jurisdiction, submitted Mr. D'souza.
18. To begin with, it is imperative to note that the instant
proceeding involves the intersection of the familial and
proprietary disputes in relation to a tenanted premises. The trial
Court approached the controversy from a broader perspective
and weighed in the factors influencing the familial disputes
between the parties, and the motive behind the litigation. It was
thus held that defendant No.2 could not be termed a mere
licensee of the plaintiff, as she had right to reside in the suit
premises.
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19. The Appellate Bench, on the other hand, took a con-
stricted view of the matter and proceeded on the premise that
once it was conceded that the plaintiff was the sole person who
succeeded to the tenancy upon the demise of Popatlal, with the
consent of all the other heirs of late Popatlal, the occupation of
defendant No.2 was purely permissive in nature and that too
through Jitesh (D1). And since Jitesh (D1) has surrendered his
tenancy rights, defendant No.2 was not entitled to hold on to the
suit premises.
20. The legality and correctness of the aforesaid approach of
the Appellate Bench warrants evaluation. To have a clear
perspective, the factual backdrop, which is, by and large, not in
dispute, deserves to be noted. Incontrovertibly, late Popatlal was
the tenant of the suit premises. Popatlal passed the away in the
year 1986, leaving behind plaintiff, Jitesh (D1), Jayesh and
Bhavna. The marriage of defendant No.2 was solemnized with
Jitesh (D1) in the year 1998. It seems their marital life was
afflicted with discord since inception. The family was initially
residing at Dadar. Defendant Nos.1 and 2 shifted to the suit
premises around the year 1999. A daughter was born out of the
wedlock at the suit premises, in the year 2001.
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21. As the marital discord escalated, defendant No.2 alleges,
defendant No.1 deserted her. Though the precise date on which
defendant Nos.1 and 2 started to reside separately does not
emerge from the record, yet, it is indisputable that in the year
2006 defendant No.1 instituted a petition for dissolution of
marriage before the Family Court, being Petition No. 1752 of
2006. It is pertinent to note on 7 th July, 2005, defendant No.1
and his other siblings affirmed an affidavit surrendering their
tenancy rights in the suit premises in favour of the plaintiff,
their mother.
22. In the backdrop of the aforesaid facts, whether the
inference drawn by the Appellate Bench that deferment No.2 is
the gratuitous licensee of the plaintiff is sustainable? The Appel-
late Bench was of the view that, indisputably, defendant No.2
had not been residing with the original tenant when he passed
away in 1986. Defendant No.2 was claiming tenancy in her
capacity as the wife of defendant No.1 and at the mercy of the
Plaintiff. Whether defendant No.2 was having any rights in the
suit premises was beyond the remit of the jurisdiction of the
Court of Small Causes.
23. The aforesaid view of the Appellate Bench deserves to be
appreciated in the light of the fact that it is the positive case of
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the plaintiff that in the year 1999, on account of the disputes
among her children, and the paucity of space at Dadar,
defendant Nos.1 and 2 were allowed to reside in the suit
premises. Defendant No.2 thus occupied the suit premises
alongwith Jitesh (D1), while the latter had yet not surrendered
his tenancy rights in the suit premises in favour of the plaintiff.
The Appellate Bench was thus factually not correct in recording
that defendant No.2 was allowed to occupy the suit premises at
the mercy of the plaintiff. Defendant No.2 started to reside in
the suit premises while all the legal heirs of late Popatlal were
still the joint tenants qua the suit premises. What consequences
emanate from such occupation of the suit premises by
defendant No.2 in the said capacity?
24. At this juncture, recourse to the protective regime
enshrined by the Protection Of Women from Domestic Violence
Act, 2005 may be apposite. DV Act, 2005 was enacted keeping
in view the rights guaranteed under Articles 14, 15 and 21 of the
Constitution, to provide for a remedy under the civil law which
was intended to protect the women from being victims of
domestic violence and to prevent the occurrence of domestic vio-
lence in the society. One of the stated objects sought to be
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achieved by the enactment of the DV Act, 2005, was to provide
rights of women to secure housing. It reads as under:
" It provides for the rights of women to secure housing. It also
provides for the right of a woman to reside in her matrimonial
home or shared household, whether or not she has any title or
rights in such home or household. This right is secured by a
residence order, which is passed by the Magistrate."
25. Section 17 of the DV Act, 2005 gives the women right to
reside in a shared household. It reads as under:
"17. Right to reside in a shared household.--
(1) Notwithstanding anything contained in any other law for the
time being in force, every woman in a domestic relationship
shall have the right to reside in the shared household, whether
or not she has any right, title or beneficial interest in the same
(2) The aggrieved person shall not be evicted or excluded from
the shared household or any part of it by the respondent save in
accordance with the procedure established by law."
26. It would be contextually relevant to note the definitions of
the "domestic relationship" and "shared household" which are
the key expressions in sub-section (1) of Section 17. They read
as under:
"2(f) "domestic relationship" means a relationship between two
persons who live or have, at any point of time, lived together in a
shared household, when they are related by consanguinity, mar-
riage, or through a relationship in the nature of marriage, adop-
tion or are family members living together as a joint family;
2(s) "shared household" means a household where the person
aggrieved lives or at any stage has lived in a domestic relation-
ship either singly or along with the respondent and includes
such a house hold whether owned or tenanted either jointly by
the aggrieved person and the respondent, or owned or tenanted
by either of them in respect of which either the aggrieved person
or the respondent or both jointly or singly have any right, title,
interest or equity and includes such a household which may be-
long to the joint family of which the respondent is a member, ir-
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respective of whether the respondent or the aggrieved person
has any right, title or interest in the shared household."
27. A conjoint reading of the aforesaid provisions would
indicate that the Parliament professed to secure the right to
residence to a woman in a domestic relationship, by giving an
overriding effect to the said right by incorporating a non-
obstante clause. Such right is available qua a shared house-
hold. The expression, "whether or not she has any right, title or
interest or beneficial interest in the same", which follows the
term "shared household" is of critical salience. The right to
reside in the shared household is, in fact, de hors such right, ti-
tle or interest. The right to reside stems from the domestic
relationship, which has its nexus with the shared household. If
these two conditions are satisfied, then notwithstanding the
absence of any right, title or interest in the shared household,
the aggrieved woman is entitled to enforce her right to reside in
the shared household, notwithstanding anything contained in
any other law for the time in force.
28. In the case of Roma Tiwari (supra) a learned Single Judge
construed the nature of the residence order that can be passed
under Section 19 of the DV Act, which reads as under:
"19. Residence orders.--
(1) While disposing of an application under sub-section (1) of
section12, the Magistrate may, on being satisfied that domestic
violence has taken place, pass a residence order--
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(a) restraining the respondent from dispossessing or in any
other manner disturbing the possession of the aggrieved
person from the shared household, whether or not the re-
spondent has a legal or equitable interest in the shared
household;
(b) directing the respondent to remove himself from the
shared household;
(c) restraining the respondent or any of his relatives from
entering any portion of the shared household in which the
aggrieved person resides;
(d) restraining the respondent from alienating or disposing
off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in
the shared household except with the leave of the Magis-
trate; or
(f) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her
in the shared household or to pay rent for the same, if the
circumstances so require: Provided that no order under
clause (b) shall be passed against any person who is a
woman.
... ... ..."
29. After adverting to the aforesaid provisions, the learned
Single Judge observed that the words, "whether or not the
respondent has a legal or equitable interest in the shared house-
hold" are of utmost significance, when the right of the aggrieved
person i.e. wife is to be decided so far as her residence in the
shared household is concerned. The question of title or propri-
etary right in the property is not at all of relevance when the
provisions of DV Act, especially Section 19 thereof, are to be
considered. As a matter of fact, it needs to be emphasized as
the wife's right to reside in the matrimonial home was being
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defeated on this very ground that the house does not belong to
the husband, or does not stand in his name, the DV Act 2005
was brought on the statute book with the specific and clear
language. The moment it is proved that it was a shared house-
hold, as both of them had in their matrimonial relationship i.e.
domestic relationship, resided together thereat, and, in that
case, up to the time the dispute arose, it followed that the
petitioner wife got right to reside therein.
30. It is true, the aforesaid observations were made in the
context of a dispute which arose out of the order passed by the
Family Court in a matrimonial dispute. However, in view of the
special feature of the DV Act, 2005, the nature of the proceeding
in which the protective orders can be sought and passed is not
of material significance. The Parliament has designedly and
advisedly provided for the grant of any of the reliefs available
under Sections 18, 19, 20, 21 and 22 of the DV Act 2005 in any
legal proceeding before a Civil Court, Family Court or Criminal
Court.
31. Section 26 of the DV Act, 2005 reads as under:
"26. Relief in other suits and legal proceedings.--
(1) Any relief available under sections 18, 19,20, 21 and 22 may
also be sought in any legal proceeding, before a civil court, fam-
ily court or a criminal court, affecting the aggrieved person and
the respondent whether such proceeding was initiated before or
after the commencement of this Act.
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(2) Any relief referred to in sub-section (1) may be sought for in
addition to and along with any other relief that the aggrieved
person may seek in such suit or legal proceeding before a civil or
criminal court.
(3) In case any relief has been obtained by the aggrieved person
in any proceedings other than a proceeding under this Act, she
shall be bound to inform the Magistrate of the grant of such
relief."
32. It is, therefore, no answer to a claim for protection
referrable to the provisions under the DV Act, 2005 that the
proceeding in question is not before the Magistrate empowered
under the said Act.
33. At this stage, the three-Judge Bench judgment of the
Supreme Court in the case of Satishchandra Ahuja (supra)
deserves to be consulted. The facts in the said case have an
element of resemblance to the facts of the case at hand.
34. In the said case, the appellant - plaintiff was the father-in-
law of the respondent - woman. The appellant had acquired the
subject property under a conveyance in the year 1983. The
marriage of the respondent was solemnized with the son of the
appellant in the year 1995. Post marriage, the respondent
started to reside in the subject premises alongwith her
husband. In the wake of marital discord, the appellant's son
moved out of the subject premises. The respondent continued to
occupy the same. Appellant's son filed a petition for dissolution
of marriage. The respondent had filed an application under
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Section 12 of the DV Act, 2005. In the year 2017, the appellant
instituted a suit against the respondent, as the sole defendant,
seeking a decree for mandatory injunction against the
respondent to remove herself, and her belongings from the sub-
ject premises. In view of a purported admission in the written
statement, the trial Court passed a decree on admission under
Order XII Rule 6 of the Code. On appeal, the High Court set
aside the decree and remitted the matter back to the trial court
for afresh decision after considering the statutory rights of the
respondent.
35. A submission was canvassed before the Supreme Court
that in view of the decision of the Supreme Court in the case of
S. R. Batra and anr. vs. Taruna Batra3, the respondent therein
had no right of residence in the premises belonging to the
appellant-her father-in-law. The Supreme Court framed inter
alia the following questions, which arose for the consideration:
"30.1 (1) Whether definition of shared household under
Section 2(s) of the Protection of Women from Domestic Violence
Act, 2005 has to be read to mean that shared household can
only be that household which is household of joint family or in
which husband of the aggrieved person has a share?
30.2 (2) Whether judgment of this Court in S.R. Batra and
Anr Vs. Taruna Batra (2007) 3 SCC 169 has not correctly
interpreted the provision of Section 2(s) of Protection of Women
from Domestic Violence Act, 2005 and does not lay down a
correct law?
30.3 (3) ... ... ...
3 AIR 2007 Supreme Court 1118.
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30.4 (4) Whether, when the defendant in her written
statement pleaded that suit property is her shared household
and she has right to residence therein, the Trial Court could
have decreed the suit of the plaintiff without deciding such
claim of defendant which was permissible to be decided as per
Section 26 of the Act, 2005?
36. After an elaborate analysis tracing the legislative history
and object behind the enactment of DV Act 2005 the Supreme
Court ruled that the decision in the case of S.R, Batra. (supra)
which held that wife is only entitled to claim the right of
residence in the shared household and the shared household
could only mean the house belonging to or taken on rent by the
husband or the house which belongs to the joint family of which
the husband is a member, does not lay down the correct law.
The observations in paragraphs 69 and 70 are material and
hence extracted below:
"69. In para 29 of the judgment, this Court in S.R.
Batra V Taruna Batra (Supra) held that wife is only
entitled to claim a right to residence in a shared
household and a shared household would only mean
the house belonging to or taken on rent by the hus-
band, or the house which belongs to the joint family of
which the husband is a member. The definition of
shared household as noticed in Section 2(s) does not
indicate that a shared household shall be one which
belongs to or taken on rent by the husband. We have
noticed the definition of "respondent" under the Act.
The respondent in a proceeding under Domestic Vio-
lence Act can be any relative of the husband. In event,
the shared household belongs to any relative of the
husband with whom in a domestic relationship the
woman has lived, the conditions mentioned in Section
2(s) are satisfied and the said house will become a
shared household.
70. We are of the view that this court in S.R. Batra
V Taruna Batra (Supra) although noticed the defini-
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tion of shared household as given in Section 2(s) but
did not advert to different parts of the definition which
makes it clear that for a shared household there is no
such requirement that the house may be owned singly
or jointly by the husband or taken on rent by the hus-
band. The observation of this Court in S.R. Batra V
Taruna Batra (Supra) that definition of shared house-
hold in Section 2(s) is not very happily worded and it
has to be interpreted, which is sensible and does not
lead to chaos in the society also does not commend
us. The definition of shared household is clear and ex-
haustive definition as observed by us. The object and
purpose of the Act was to grant a right to aggrieved
person, a woman of residence in shared household.
The interpretation which is put by this Court in S.R.
Batra V Taruna Batra (Supra) if accepted shall clearly
frustrate the object and purpose of the Act. We, thus,
are of the opinion that the interpretation of definition
of shared household as put by this Court in S.R. Batra
V Taruna Batra (Supra) is not correct interpretation
and the said judgment does not lay down the correct
law."
37. The question Nos.1 and 2 were therefore answered as
under:
"91. ... ... ...
91.1 The definition of shared household given in Section 2(s)
cannot be read to mean that shared household can only be that
household which is household of the joint family of which
husband is a member or in which husband of the aggrieved
person has a share.
91.2 The judgment of this Court in S.R. Batra Vs Taruna
Batra (Supra) has not correctly interpreted Section 2(s) of Act,
2005 and the judgment does not lay down a correct law.
38. While answering question No.(4) the Supreme Court
expounded the import of the provisions contained in Section 26
of the DV Act, 2005. The Supreme Court enunciated that in
view of the ratio laid down by the Supreme Court in the case of
Vaishali Joshi Vs Nanasaheb Joshi4 the claim of the defendant
4 (2017) 14 SCC 373,
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that the suit property is shared household and she has right to
reside in the house ought to have been considered by the trial
court and non-consideration of the claim/defence is nothing but
defeating the right, which is protected by the DV Act, 2005.
39. In the case of Vaishali Joshi (supra) the appellant was the
daughter-in-law of the respondent. The husband of the
appellant and the son of the respondent had left the appellant
on the suit flat, which was allotted to the respondent. In the
wake of the matrimonial proceedings, the respondent revoked
the gratuitous licence and asked the appellant to stop use and
occupation of the suit flat. And, eventually, filed a suit seeking
mandatory injunction. The appellant resisted the suit contend-
ing that the suit flat was intended to be used by the joint family
as a joint family property. The appellant filed a counter claim
and prayed for an order of residence in the suit flat under
Section 19 of the DV Act, 2005. The learned Judge, Court of
Small Causes, held that the Court had no jurisdiction to
entertain the counter claim. A revision against the said order
did not succeed. The High Court also ruled against the
appellant.
40. The Supreme Court after considering the provisions of the
Provincial Small Causes Court Act, 1887 and DV Act, 2005
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enunciated that, the Court of Small Causes had the jurisdic-
tional competence to entertain and decide the counterclaim. The
observations in paragraph 40 read as under:
"40. Section 26 of the Act, 2005 has to be interpreted in
a manner to effectuate the very purpose and object of the
Act. Unless the determination of claim by an aggrieved
person seeking any order as contemplated by Act, 2005 is
expressly barred from consideration by a civil court, this
Court shall be loath to read in bar in consideration of any
such claim in any legal proceeding before the civil court.
When the proceeding initiated by plaintiff in the Judge,
Small Causes Court alleged termination of gratuitous li-
cence of the appellant and prays for restraining the appel-
lant from using the suit flat and permit the plaintiff to en-
ter and use the flat, the right of residence as claimed by
the appellant is interconnected with such determination
and refusal of consideration of claim of the appellant as
raised in her counter claim shall be nothing but denying
consideration of claim as contemplated by Section 26 of
the Act, 2005 which shall lead to multiplicity of proceed-
ing, which can not be the object and purpose of Act,
2005."
(emphasis supplied)
41. In the light of the aforesaid enunciation of law, reverting to
the facts of the case at hand, The Appellate Bench was clearly in
error in observing that the question as to whether defendant
No.2 had any right to reside in the suit premises was beyond the
remit of the jurisdiction of the Court of Small Causes. In view of
the provisions contained in Section 26 of the DV Act, 2005 and
in the context of the clear assertion by the defendant No.2 that
she had a right to reside in the suit premises, being the wife of
defendant No.1, it was incumbent upon the Appellate Bench to
decide the question whether defendant No.2 was entitled to
enforce her right of residence.
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42. The evidence on record clearly establishes that defendant
No.2 started to reside in the suit premises since the year 1999,
much prior to the alleged conferment of exclusive tenancy rights
upon the plaintiff. Moreover, the Appellate Bench also
unjustifiably discarded the admissions elicited in the cross-
examination of Pushpaben (PW1). Pushpaben (PW1) had
conceded that she was unaware as to what was affirmed in the
affidavit and she had simply put signature on the affidavit in
lieu of examination-in-chief. She was unaware of its contents
and had not gone through the same. She went on to concede
that she had nothing to show that defendant No.2 was her
licensee. She further added, rather candidly, how there could be
licensor - licensee relationship with the children. (As recorded in
vernacular, "लड़का लोग के साथ क्या लाइसें स होगा" by the trial Court.)
Lastly, she conceded in no uncertain terms that since defendant
No.2 has right in the suit premises she was residing in the suit
premises.
43. In the face of the aforesaid evidence, the Appellate Bench
was not justified in taking a constricted view of the matter, and
passing the decree for eviction. The learned Judge, Court of
Small Causes was right in holding that the plaintiff had failed to
establish that defendant No.2 was a gratuitous licensee. The
-CRA257-2022+.DOC
occupation of defendant No.2 was referable to her right to reside
in the suit premises, which constituted the shared household,
in view of the domestic relationship the defendant No.2 had
both with Jitesh (D1) and the plaintiff. Therefore, the impugned
judgment and decree deserves to be quashed and set aside.
44. Hence, the following order:
:ORDER:
(i) The revision application stands allowed.
(ii) The impugned judgment and decree stands quashed and
set aside.
(iii) The judgment and decree passed by the trial Court, in LE
Suit No.36/42 of 2013 stands restored.
(iv) The suit stands dismissed.
(v) In the circumstances of the case, there shall be no order
as to costs.
(vi) By way of abundant caution, it is clarified that the core
issue before the trial Court was, whether the applicant is
a gratuitous licensee and required to be evicted from the
suit premises and the consideration in this revision is
confined to the said aspect of the matter.
(vii) In view of disposal of revision application, IA/30503/2022
also stands disposed.
[N. J. JAMADAR, J.]
