Sh. Ravinder Singh Sandhu vs Smt. Ravneet Kaur Sandhu And Ors.
2010 Latest Caselaw 4489 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      FAO (OS) No. 269-271/2010 & CM No. 7357/2010


%                                    Reserved on: 31st August, 2010

                                     Decided on: 23rd September, 2010

Sh. Ravinder Singh Sandhu,
S/o Sh. Arjun Singh Sandhu,
R/o K-16A, Rajouri Garden,
New Delhi.                                           ..... Appellant
                       Through:    Mr. A.K. Singla, Sr. Advocate with
                                   Mr. Ajay Malhotra, Advocate.


                        versus

1.     Smt. Ravneet Kaur Sandhu,
       W/o Sh. Ravinder Singh Sandhu,
       D/o Sh. Harbhajan Singh Paintal,
       R/o K-16A, Rajouri Garden,
       New Delhi.

       Presently residing at:

       A-45, Kirti Nagar,
       New Delhi-110 015.

2.     Sh. Harbhajan Singh Paintal,
       S/o Late Sardar Makhan Singh,
       Presently residing at:
       K-16A, Rajouri Garden,
       New Delhi.

3.     Smt. Darshan Kaur Paintal,
       W/o Sh. Harbhajan Singh Paintal,
       Presently residing at:
       K-16A, Rajouri Garden,
       New Delhi.

4.     Sh. Prabhleen Singh Paintal,
       S/o Sh. Harbhajan Singh Paintal,
       R/o A-45, Kirti Nagar,
       New Delhi-110 015.                              Respondents


FAO (OS) 269-271/2010                                           Page 1 of 19
                         Through:   Mr. H.L. Tiku, Sr. Advocate with
                                   Mr. Atul Sharma and Mr. Thakur
                                   Sumit, Advocates.

Coram:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                   Yes

2. To be referred to Reporter or not?                Yes

3. Whether the judgment should be reported
   in the Digest?                                    Yes




MUKTA GUPTA, J.

1. This is an Appeal against the Order dated 18th March, 2010

passed by the learned Single Judge disposing of IA No. 14872/2009

(under Order 39 Rules 1 and 2 CPC by the Appellant/Plaintiff), IA No.

16863/2009 (under Section 151 CPC by the Respondent/Defendant No.

1) and IA No. 16096/2009 (under Order 39 Rules 1 and 2 read with

Section 151 CPC by Respondent/Defendant No. 1). Vide the impugned

order the learned Single Judge modified its Order dated 24th November,

2009 wherein the parties were directed to maintain status quo with

regard to possession, title and construction till the pendency of the

proceedings in the following manner:

"(i) Since the Local Commissioner has found that the two rooms on the ground floor at the rear end of the suit property are in use of Defendant No.1, the Defendant No.1 and the children, shall continue to use and occupy

the two rooms on the ground floor at the rear end of the suit property during the pendency of the suit.

(ii) Since there is no doubt vis a vis the fact that the first floor is in possession of Defendant No. 2 and 3 the position as obtaining today shall continue.

It is made clear that in so far as remaining portion is concerned the Plaintiff shall continue to be in possession. Mr. Sharma says that in view of the modification made in the order dated 24.11.2009 he does not wish to press the other reliefs made in the captioned applications."

2. The Appellant filed a Plaint being CS (OS) No. 2187/2009 against

the Respondents inter alia praying for a decree of declaration that he

had purchased the 50% of the half undivided share of the property

bearing No. K-16A, Rajouri Garden, New Delhi purchased in the name

of Respondent No. 1 vide Sale Deed dated 25th March, 2008 and

declaring him to be the absolute owner thereof. He also sought a

preliminary decree of partition seeking 3/4th share in the entire Suit

property and the Defendant No.1, to the extent of 1/4th share in the Suit

property and also a mandatory injunction directing the Respondents to

withdraw themselves from the possession of the said so defined portion

in favour of the Appellant. On 24th November, 2009 the learned Single

Judge passed an ex parte ad interim order directing the parties to

maintain status quo with regard to the possession, title and

construction on the said Suit property.

3. The case of the Appellant is that the Appellant and the

Respondent No. 1 were married on 16th November, 1997 and from the

wedlock two children a daughter named Achint Kaur and a son namely

Joban Singh were born on 9th December, 2001 and 15th September,

2006 respectively. It is the case of the Appellant that he and his brother

had bought 50% share each of this property from its erstwhile owner in

the year 1996. Initially, though after the marriage they were staying

with the Appellant's father, however, to maintain peace and harmony in

the matrimonial relationship he along with the Respondent No. 1

shifted to the ground floor of the Suit property. His younger brother

along with his family resided on the first floor. The father of the

Appellant though a widower continued staying in his own house. The

property was, however, not partitioned by metes and bounds among the

brothers. According to the Appellant due to the immense interference

of the Respondent Nos. 2 and 3 and the temperamental difference with

Respondent No. 1, the life was never a smooth sailing one resulting in

heavy loss in the business and thus, compelling the Appellant to start a

new business from his own funds in August, 2004 at Noida. Since he

did not have any place to start the business, the Respondent No.2

offered him vacant premises in his factory at Noida wherein he started

his business. However, soon thereafter he was allotted an industrial

plot at Manesar. Since the Respondent No. 1 did not want the brother

of the Appellant also to be living in the same house and wanted transfer

of his share in her name there were constant problems whereby the

Appellant's brother was also persuaded to sell his portion in the name

of the Respondent No. 1 and shift out from the said premises.

According to the Appellant, despite having purchased the half

undivided share of the Suit property from his brother for which he paid

substantially out of his own funds, the Respondent No. 1 was still not

satisfied and there was constant discord in the matrimonial life. The

business also could not run as the Respondent No. 1 being the partner,

refused signing cheques and thus, creating problems and not only this

she lodged a complaint at the Noida Police Station against the

Appellant. Constraint from all these the Appellant filed a petition for

decree of divorce under Section 13 (1A) of the Hindu Marriage Act,

1955. According to the learned counsel for the Appellant there was

continuous interference and threats from Respondent Nos. 2 and 3,

that is, the parents of Respondent No. 1 and to cause more insult they

shifted with Respondent No. 1 in the Suit premises on the first floor

owned by the Appellant. According to the Appellant he is entitled to

3/4th share in the entire property and on his request to partition the

property by metes and bounds, the Respondents are trying to dispose of

the 50% undivided share of the property by illegal means.

4. That on filing the Suit status quo orders were granted by the

learned Single Judge on 24th November, 2009 in IA No. 16096/2009

under Order 39 Rules 1 and 2 CPC filed by the Appellant. Thereafter,

the Respondent No.1 filed her Written Statement on 9th December,

2009 and also filed Application under Order 39 Rules 1 and 2 and

Section 151 CPC wherein it was prayed that the Appellant or his

attorneys be restrained from preventing the right of ingress and egress

of the Respondent No. 1 qua the property and restrain them from

creating obstacle in the use and enjoyment of the said property being

her matrimonial home/shared accommodation and also restrain the

Appellant from creating any third party rights in the ground floor

portion of the property. Respondent No. 1 also filed an Application

under Order 26 Rule 9 CPC for appointment of the Local Commissioner.

5. The case of the Respondent No. 1 in the Written Statement and in

the Applications is firstly, that she is the absolute owner of 50%

undivided portion purchased vide sale deed dated 25th March, 2008, as

substantial portion of the money for the purchase of the said share was

provided by her father and secondly, that she is using the ground floor

premises as a shared matrimonial home and is thus entitled to the

possession thereof as well. It is also denied that Respondent No. 3 is

occupying the first floor of the Suit premises for their use with a

separate kitchen. Some relevant averments in the written statement

are as follows:

"It is emphatically denied that on 18th May, 2009 defendant No. 2 along with muscle men started visiting the factory premises and also caused harm to the goods of the plaintiff. It is further emphatically denied that the defendant No. 1 declared to the staff of the plaintiff that

he has taken over the business of the plaintiff and would ensure no respect is being extended to the plaintiff in his factory. It is further emphatically denied that the defendant caused insult to the plaintiff as alleged. It is further emphatically denied that the defendant No. 3 is occupying the first floor of the suit premises for their use with a separate kitchen. It is further emphatically denied that the plaintiff is residing on the ground floor of the property as alleged. It is further emphatically denied that the minor son of the plaintiff with a maid servant is sharing one room on the ground floor. It is further emphatically denied that the plaintiff made any request as alleged in paras under reply. The plaintiff is in the habit of fabricating evidence in his favour to suit his requirement and as such the allegations contained in paras under reply are wrong and denied emphatically. On the contrary the fact remains that the premises bearing No. K16A, Rajouri Garden, New Delhi of which the defendant No. 1 is co-owner thereof and the property in question is also her matrimonial home and she is occupying the same in her dual capacity and has every right to maintain the possession of the entire property. It is submitted that the defendant No. 1 along with her children and maid servant is occupying the ground floor and discharging her obligations towards her family. However it is not out of place to mention that ever since the plaintiff is involved in adultery with Shefali Aggarwal. He is confining himself to one bed room. In the property and on different occasions he preferred to stay away for a night and as such the plaintiff cannot claim any equity from this Hon'ble Court. It is submitted that her parents/brother often visited her to ascertain her welfare and well being and their curtsey visit to the defendant would not be taken otherwise by the plaintiff. The allegations contained in this regard are otherwise untenable in the eyes of law and are denied in toto. It is submitted that the defendant No. 1 has vested right, title and interest qua the suit property being 50% undivided owner thereof by virtue of Section 54 of the Transfer of Property Act and by virtue of Section 17 of Protection of Women from the Domestic Violation Act, the defendant has statutory right to live and occupy the premises and as such the suit of the plaintiff being untenable deserves to be dismissed. The defendant craves leave of this Hon'ble Court to refer and rely upon the submissions made therein and the facts stated therein are not repeated

herein for the sake of repletion and may be read as past of it."

After hearing, the learned Single Judge in I.A. No. 16097/2009

filed by the Respondent No. 1 appointed a Local Commissioner vide

order dated 11th December, 2009 and it was directed:

"I have heard the learned counsel for the defendants. I am of the view that in these circumstances a local commissioner needs to be appointed. Accordingly, Ms. Sahila Lamba, Advocate (Mb.9818153010) is appointed as a local commissioner. The Local Commissioner would visit the suit premises situate at K-16A, Rajouri Garden, New Delhi and ascertain the exact position as to the person(s) who are in the possession of the suit property. The report shall also indicate the portion(s) of the suit property in possession of each of the parties to the suit."

6. The Local Commissioner visited the premises on 15th December,

2009 at about 2.30 P.M. however, the case of both the parties is that on

14th December, 2009 an incident took place and because of which the

police was called wherein their statements were recorded. The

Appellant claims that the Respondent No. 1 took forcible possession of

the two rooms on the rear side of the ground floor on 14th December,

2009 contrary to the stay orders passed by the Hon'ble Court and that

the children had been taken to Kirti Nagar since about 1-1½ months

back whereas the Respondent No. 1 claims that the relatives of the

Appellant present in the third room came on 16th November, 2009 and

forcibly dispossessed her from the said room. Both the parties gave

their statements to the police and then subsequently their complaints.

On 15th December, 2009 the Local Commissioner inspected the

premises. The relevant portions of the report of the Local

Commissioner are as under:

"3. On reaching the suit property, I found that the two rooms on the extreme end of the ground floor of the suit property were locked. The said rooms were opened by Ms. Ravneet Kaur, defendant no. 1. Ravneet Kaur stated that she and her two minor children Achint and Joban are in possession of the said two rooms. She further stated that the things lying in the said two rooms belong to her and two children.

4. That thereafter Ravneet Kaur took me to a third bedroom on the ground floor of the suit property where relatives of Ravinder Singh Sandhu were present. Ravneet Kaur opened some of the cupboards present in the said room and stated that the things lying in the said cupboards belong to her whereas Ravinder Singh Sandhu stated that the same belong to him.

5. That during the course of the execution of the commission, Ravinder Singh Sandhu, plaintiff, stated that the said two rooms were in his possession till the evening of 14.12.2009 and that he was forcibly dispossessed by the defendants from the said rooms in the evening of 14.12.2009 in complete disregard of the stay order passed by this Hon'ble Court. He further stated that he had lodged a complaint with the local police in said connection and handed over to me the copy of the complaint lodged by him, copy of his statement recorded by the police and copy of the stay order passed by this Hon'ble Court. The aforesaid documents are being annexed as ANNEXURE-A to this report.

6. That per contra Ravneet Kaur, defendant no.1, stated that the plaintiff and his family members

manhandled her and tried to dispossess her from the said two rooms in the evening of 14.12.2009 and that she lodge a complaint with the local police in said connection. She also handed over to me the copy of the complaint lodged by her, which is being annexed as ANNEXURE-B to this report. Ravneet Kaur also handed over to me an invitation card to show that she had organized a religious ceremony in the ground floor of the suit property. The said invitation card is being annexed as ANNEXURE-C to this report.

7. That Ravneet Kaur, defendant no. 1 and Ravinder Singh Sandhu, plaintiff made allegations and counter- allegations against each other and the same were briefly recorded in the rough report prepared by me at the time of the execution of the commission.

8. That I concluded the commission at 3:40 p.m. and prepared a rough report. All the afore-noted persons who were present at the time of execution of the commission appended their signatures on the rough report. Mr. Ravinder Singh Sandhu, plaintiff, also made a note in the rough report while appending his signatures thereon. The rough report prepared by me at the time of execution of the commission is being annexed as ANNEXURE-D to this report.

9. That I conclude that the factual position regarding possession of the ground floor of the suit property was that two bedrooms which were on extreme end of the ground floor were opened by Ravneet Kaur, defendant no. 1, with the keys possessed by her. Ravneet Kaur, defendant no.1 also opened some of the cupboards present in third room on the ground floor with the keys possessed by her."

7. On the basis of the Local Commissioner's report the learned

Single Judge on 18th March, 2010 modified the status quo order and

directed that the Respondent Nos. 2 and 3 will continue to be in the

possession of the first floor and the Respondent No. 1 with the children

will continue to use and occupy the two rooms on the rear side of the

ground floor and the Appellant was permitted to continue to be in

possession of the remaining portion on the ground floor.

8. Learned counsel for the Appellant seriously contests the report of

the Local Commissioner which was also done before the learned Single

Judge by filing an Application as well. Not only this, a protest was also

lodged on the spot on the report itself. According to the learned

counsel for the Respondents the Local Commissioner gave the factual

position, thus, on the basis of the factual position, the learned Single

Judge passed the Impugned Order which deserves no interference.

9. Undisputedly, the Appellant and his brother were the co-owners

with 50% share each of the built up property bearing No. K-16A,

Rajouri Garden, New Delhi and both of them were living along with

their families on the ground floor and the first floor respectively. On

25th March, 2008 half undivided share of this property was sold by Shri

Gurvinder Singh, the brother of the Appellant to Respondent No. 1. The

claim of the Appellant is that substantial amount of the consideration,

in the said purchase was from his earnings whereas the claim of the

Respondent No. 1 is that major part of the purchase money was given

by her father and the remaining part was from the income of the

partnership firm of which she is also a partner.

10. The ownership of the property or the entitlement of the portions

thereof is not the issue to be decided at this stage because that will

have to be decided by the learned Single Judge in the trial. The lis at

the moment is qua the possession of the property and the peaceful

enjoyment thereof during the pendency of the Suit. Both the parties are

litigating cantankerously. When the Appeal came up for hearing since

it was essentially a matrimonial dispute, an effort was made for

mediation, so that the matter could be resolved between the parties,

however, the mediation proceedings did not bear any fruits. Thus, this

Appeal was heard on merits.

11. Grant of temporary injunction is a discretionary remedy which

has to be exercised in accordance with reasons and sound judicial

principles. The sound judicial principles which regulate the discretion

conferred under Order 39 Rules 1 and 2 are that the party seeking

temporary injunction must satisfy that there is a serious question to be

tried in the Suit to dispel the doubt relating to their entitlement and

there being probability of it being entitled to the relief sought.

Secondly, the Court's interference is necessary to protect it from the

threatened injury, which according to the Court is irreparable one

before a legal right can be established on trial and finally the

comparative inconvenience, which is likely to ensue from withholding

temporary injunction, would be greater than that which is likely to arise

from grant of it. Prima facie case is not to be confused with prima facie

title of the party which has to be established on evidence. In

ascertaining the balance of convenience, the Courts are required to

weigh and compare the substantial mischief that is likely to turn to the

parties if the injunction is refused or granted. All these three

conditions should co-exist before a temporary injunction is granted.

While granting injunction the Court should consciously look to the

conduct of the parties, the probable injuries to either of the parties and

whether the party could be adequately compensated if injunction is

refused.

12. Conscious of the limited scope of interference by the Appellate

Court with the order of grant or refusal of temporary injunction, that it

cannot in the exercise of its appellate jurisdiction substitute its own

discretion in place of the Trial Court unless the order passed by the

Trial Court is found unconscionable, perverse or opposed to sound

principles of law and practice, we have analyzed the averments and the

pleadings of the parties and also the report of the Local Commissioner.

The paramount consideration at this stage is that the parties live in

peace and harmony without further compounding their disputes, at the

same time preserving the Suit property till the disposal of the Suit.

13. It may be noted that the Local Commissioner was directed to

ascertain the exact position as to the person(s) who are in possession of

the Suit property. It was also directed that the report shall also indicate

the portion(s) of the Suit property in possession of each of the parties

to the Suit. The Suit relates to the entire K-16A, Rajouri Garden, New

Delhi i.e. the ground floor and the first floor. A perusal of the report

shows that the Local Commissioner has neither taken any photographs

nor made an independent assessment as to who is in possession of

which part of the Suit premises and has primarily recorded the

statements made by the parties. The report mentions about inspection

of only 3 bedrooms on the ground floor. Thus, with regard to the

remaining rooms on the ground floor and first floor there was no

inspection carried out. The Appellant had moved an Application under

Section 151 CPC being I.A. No. 705/2010 for rejection of the report of

the Local Commissioner, however, no order was passed on this

Application on 18th March, 2010, though the learned Single Judge vide

the Impugned Order accepted the report of the Local Commissioner. It

may be noted that even in the Written Statement filed on 9th December,

2009 nowhere has it been claimed by the Respondent No. 1 that her

parents are living on the first floor and she is in the exclusive

possession of the two rooms on the rear side of the ground floor. Her

claim is that the ground floor is her shared matrimonial home and the

first floor is with her as exclusive owner and the parents only pay a

courtesy visit. In a shared matrimonial accommodation, though the

rooms may be identifiable but the concept of exclusive possession of

any of the occupants to the exclusion of ingress and egress of the other

is unknown. This stand of the Respondent No. 1 in the Written

Statement and Applications filed on 9th December, 2009 is after the

learned Single Judge passed status quo orders on 27th November, 2009.

It is only before the Local Commissioner on 15th December, 2009 that

Respondent No. 1 for the first time has taken the stand of exclusive

possession of two rooms on the rear side and thereafter on the basis of

the Local Commissioner's report, an Application being IA

No.16863/2009 under Section 151 CPC has been filed on 22nd

December, 2009 inter alia praying not to disturb the possession of the

Respondent in respect of the two rooms on the rear side at the ground

floor.

14. Both the parties have given their complaints to the police with

regard to incident dated 14th December, 2009. Much has been sought

to be made out by learned Senior Counsel for the Respondent No. 1

that the complaint of the Appellant to the police with regard to the

incident dated 14th December, 2009 was given only on the 15th

December, 2009 whereas the Respondent No. 1 gave her complaint on

the 14th itself. Nothing turns thereon because on 14th December, 2009

itself, the statement of the Appellant had been recorded by the police

copy of which has been annexed with the Local Commissioner's report

wherein the Appellant has stated about his forceful dispossession from

the two rooms on the rear side of the ground floor by putting locks

thereon by the Respondent No. 1 and her family.

15. We do not think that reliance can be placed on the Report of the

Local Commissioner because firstly, admittedly there was an incident

on 14th December, 2009 and both the parties are claiming to have been

dispossessed or attempted to be dispossessed on the said date.

Moreover, the Report of the Local Commissioner is primarily based on

the statements made by the parties as to who was staying in the rooms.

No photographs of the place had been taken. The Local Commissioner

has not even inspected and ascertained the possession on the first floor

and in the remaining portion of the ground floor. The fact that on 15th

December, 2009 when the commission was executed the keys of the

two rooms on the rear side were handed over by Respondent No. 1

does not lead to the only inference that she was in the exclusive

possession of the same to the exclusion of the Appellant. In view of the

incomplete report of the Local Commissioner we are left with the stand

of the parties in the Plaint, Written Statement and the Applications

filed.

16. Though according to the Appellant, Respondent Nos. 2 and 3,

that is, the parents of Respondent No.1 have joined her on the first

floor of the premises for the last three months, however, this fact has

been denied by the Respondent No. 1 and it is stated that her parents

and brother make a courtesy call only. The Respondent No.1 does not

deny her possession on the first floor, however in addition, also claims

possession of the ground floor as a shared matrimonial home. In view of

the fact that even in the Written Statement dated 9th December, 2009

the Respondent No. 1 has not admitted the possession and residing of

Respondent Nos. 2 and 3 on the first floor premises and rather her case

has been that they come only for a courtesy call, in our opinion, there is

no prima facie case for the Respondent Nos. 2 and 3 to be permitted to

be in possession of the first floor. Even as per the Appellant the

Respondent Nos.2 and 3 have come to stay with Respondent No.1 for

the last three months to cause more insult to him. The Respondent

No.1 has also alleged in her complaint that few relatives of the

Appellant are staying with him for nearly a month. In our view, the

learned Single erred in allowing the Respondent Nos.2 and 3 to

continue in possession of the first floor as a relative or friend who has

come to stay with a party cannot be given a right of possession till the

pendency of the Suit. Moreover, though the Appellant has alleged that

Respondent Nos. 2 and 3 are occupying the first floor it is not probable

that they would be living at every time with the Respondent No.1 at

Rajouri Garden abandoning their own matrimonial home at Kirti Nagar.

Further in view of the stand of the Respondent No.1 that she is the

exclusive owner of 50% undivided share and thus in possession of the

first floor and is using the ground floor as a shared accommodation, we

are of the view that Respondent No.1 should continue to be in exclusive

possession of the first floor. The issue as to who paid for the purchase

of the property would be decided during the trial. We have come to this

conclusion for yet another reason. Respondent No.1 in her Written

Statement and the complaints has alleged extreme physical, emotional

and financial abuse and she also apprehends abuse and torture from

the Appellant. In such a situation it is essential to secure her at a floor

where there is no interference from the Appellant. Thus, the

Respondent No.1 will continue to be in exclusive possession of the first

floor and the Appellant will in no manner interfere with the possession

of the Respondent No. 1 on the first floor. The case of the Appellant is

that he is in possession of the ground floor where one room is being

used by his son and his maid and the case of the Respondent No.1 is

that the entire ground floor is a shared accommodation, of which she

claims exclusive possession of two rooms pursuant to the Local

Commissioner's report. From the averments in the Petition and the

Written Statement, it is apparent that both the parties are at serious

loggerheads and thus living together and sharing a common kitchen

cannot be perceived in the situation. It would be thus appropriate to

permit the Appellant to continue in possession of the ground floor. The

children would be free to use the rooms both on the first floor and on

the ground floor so that they get the love and affection of both the

parents.

17. The Appeal is allowed and the Impugned Order dated 18th March,

2010 is modified to the extent that the Respondent No.1 will be in the

exclusive possession of the first floor. The Respondent Nos.2 and 3 will

not be entitled to occupy the suit premises. The Appellant will be in

possession of the ground floor. The children namely, Achint Kaur and

Joban Singh will be free to use rooms on both the ground floor and the

first floor. The interim order of the learned Single Judge dated 24th

November, 2009 as regards status quo on title and construction would

continue as the same was not modified by the Impugned Order. In case

the parties wish to live amicably as husband and wife together they can

move appropriate application with the learned Single Judge in view of

the changed circumstances.

(MUKTA GUPTA) JUDGE

(VIKRAMAJIT SEN) JUDGE SEPTEMBER 23, 2010 vn