Kavita Aggarwal vs Gyan Deepak Aggarwal & Anr.
2011 Latest Caselaw 4083 Del

/*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        RSA No.101/2011

%                                              23rd August, 2011

KAVITA AGGARWAL                                     ...... Appellant
                             Through:    Mr. Praveen Kumar Jain,
                                         Advocate with Mr. Mukesh
                                         Kumar Gupta, Advocate.

                       VERSUS

GYAN DEEPAK AGGARWAL & ANR.                         ...... Respondents

                       Through:          Mr. Sandeep Garg, Advocate for
                                         respondent No.1.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

 2.   To be referred to the Reporter or not?

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

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular Second Appeal is to

the two concurrent judgments of the Courts below, the first dated

21.1.2011, and the second dated 25.5.2011, and by which judgments,

the counter claim filed by the respondent No.1/husband was allowed

directing the appellant/wife in the counter claim to hand over the

physical possession of the premises bearing No. A-6, Urja Vihar,

Mandawali, Delhi to the counter claimant/husband/respondent No.1

inasmuch the counter claimant wanted to surrender back these premises

to his employer/respondent No.2, and which employer had given these

premises on licence to the counter claimant. The original suit was filed

by the appellant/plaintiff claiming injunction against dispossession from

the suit premises and which suit for injunction was dismissed. No appeal

has been filed by the appellant against the judgment and decree

dismissing her suit for injunction and therefore the same has become

final. The only issue which requires consideration in this Regular Second

Appeal is as to whether the husband/respondent No.1 can be forced to

continue to be the licencee of premises which he has got from his

employer/respondent No.2. Putting it differently, can the

husband/respondent No.1 not surrender the premises which he has

obtained from his employer and can the appellant/respondent in the

counter claim continue to forcibly and exclusively occupy the suit

premises thereby preventing the respondent No.1/counter claimant from

surrendering the possession back to the employer/respondent No.2.

2. The respondent No.2/BSES has taken up a stand in the Courts

below that since the possession of the licenced premises was given to the

respondent No.1, it is the duty of the respondent No.1 to take possession

from the appellant and till such possession is obtained by the respondent

No.1 from the appellant/wife and surrendered back to the

employer/BSES/respondent No.2, respondent No.2 will continue to deduct

the HRA from the respondent No.1.

3. There is no law which forces a husband to continue to remain

a tenant in a rented premises. The entitlement of a wife is only towards

maintenance from the husband. Admittedly, the decree for divorce on

the ground of cruelty was passed against the appellant. The respondent

No.1 remarried after passing of the decree of divorce. Though the

appellant claims that an appeal was filed against the judgment granting

divorce, the respondent No.1 states that till date no notice has ever been

received by it from any Court with respect to the appeal filed against the

decree of divorce. Learned counsel for the appellant states that though

the appeal was filed against the decree of divorce, however, the appeal

was dismissed for default, however, now the same has been restored.

The position which emerges today is thus that though there is a decree of

divorce in favour of the respondent No.1, an appeal probably appears to

have been filed against the said judgment and decree.

4. It is trite that the legal entitlement of possession of a

premises can only be of a licencee i.e. the husband in the facts such as

the present. The appellant/wife stays in the premises by virtue of the

fact that there is an entitlement of the husband/respondent No.1 as the

licencee to stay in the premises. This however cannot mean that if

respondent No.1 wants to surrender the possession of the licenced

premises, respondent No.1 can be forced to continue to keep the

premises, more so in the facts of the present case where the respondent

No.1 himself has been ousted from the possession of the premises and

the appellant is staying in the premises.

5. Learned counsel for the respondent No.1 has brought to my

notice an order which has been passed by a learned Single Judge of this

Court dated 28.10.2010 passed in C.M.(M) No.993/2008, and which was a

petition filed by the appellant against the order passed under Section 24

of the Hindu Marriage Act,1955 in the divorce proceedings. By the order

dated 28.10.2010, the learned Single Judge of this Court dismissed the

petition and the operative portion of which order reads as under:-

"6. Even assuming without admitting that if it is considered that the income of petitioner no.1(wife) was Rs.7000/- per month, the petitioner No.1 was receiving maintenance in the sum of Rs.3000/-, per month; she was residing at the accommodation, which was provided to the husband by the company in which he was employed and adding up the income of the wife as also a sum of Rs.3635/- towards rent which was being deducted from the salary of the husband, the wife would be having a total sum of Rs.13635/- per month, at her disposal. The parties have already parted ways and a decree of divorce has since been passed. In view of this, I find no infirmity in the order passed by the learned trial court. Accordingly, petition stands dismissed."

The Single Judge while disposing of the C.M.(M) No.993/2008

on 28.10.2010 has noted that the appellant was working as a Lecturer in

Pillani. Before this Court also the respondent No.1 states that the

appellant in fact is having other sources of income. All these facts are

however strenuously denied on behalf of the appellant and it is said that

the appellant in fact as on date is working nowhere. It is also argued that

the appellant has a minor child who has to be taken care of.

6. Considering therefore the overall facts and the conspectus of

the case which shows that though the legal position is in favour of the

respondent No.1 entitling respondent No.1 to surrender the licenced

premises to his employer, however, in the facts and circumstances of the

case, I deem it fit that respondent No.1 will pay a sum of Rs.6,000/- to the

appellant for a maximum period of six months from today subject to any

further order being sought by the appellant from the Appellate Court in

which the appeal is said to be pending against the judgment granting

divorce. I may note that the learned Single Judge while disposing of the

C.M.(M) No.993/08 on 28.10.2010 had granted a sum of Rs.3,000/- per

month considering all the facts and circumstances of the case including

the residence of the appellant in the subject accommodation. I am

therefore of the opinion that to balance the equities respondent No.1 is

held liable to pay a sum of Rs.6,000/- per month for a maximum period of

six months subject to further orders being passed in the appeal against

the judgment granting divorce. I may hasten to add that this figure of

Rs.6,000/- is of no reflection on the quantum of maintenance which may

be awarded in favour of the appellant by the Court hearing appeal

against the decree of divorce. Learned counsel for the respondent No.1

was agreeable to make the payment of this amount per month to the

appellant, however, the counsel for the appellant, on instructions from

the appellant, has out-rightly rejected this offer. Respondent

No.1/licencee is entitled to surrender back the licenced premises to his

employer/respondent No.2, however, the same will not prejudice the right

of the appellant to claim such amount of maintenance which she is

legally entitled to in any appropriate proceedings, including in the appeal

filed against the judgment by which divorce was granted. I direct that

within a maximum period of six months from today, the appellant will be

bound to comply with the impugned judgments and decrees by which

possession of the suit premises has been granted to the respondent No.1

so that the premises are surrendered back to the employer/respondent

No.2. Counsel for the respondent No.1/husband states that he

undertakes to take joint possession of the premises with respondent

No.2/employer and the actual physical possession of the suit premises

will be directly taken over by the respondent No.2/employer and not the

respondent No.1/husband. I have granted a period of six months for

vacating the premises and also payment for a period of six months so

that the appellant can obtain an alternative accommodation and if she

desires then also seek appropriate orders with respect to maintenance

from the Court which is hearing appeal against the judgment and decree

granting divorce.

7. Since no substantial question of law arises, the appeal stands

dismissed subject to the aforesaid directions.

AUGUST 23, 2011                                  VALMIKI J. MEHTA, J.
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