Smt. Sunita Awasthi vs Smt. Savitri Awasthi
2014 Latest Caselaw 1068 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.184/2011

%                                                    26th February, 2014

SMT. SUNITA AWASTHI                                  ......Appellant
                 Through:                Mr. P.S. Vats, Advocate with Mr.
                                         Sandeep Gupta, Advocate and Mr.
                                         Manish Vats, Advocate.

                          VERSUS

SMT. SAVITRI AWASTHI                                      ...... Respondent
                  Through:               Mr. B.S. Randhawa, Advocate.

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


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           This Regular Second Appeal is filed against the judgment of the

first appellate court dated 16.7.2011 by which the appeal filed by the

appellant/defendant was dismissed.

2.           At the outset, it needs to be clarified that there are two

judgments dated 16.7.2011. One judgment which is impugned in this appeal

was passed in appeal against the final judgment and decree of the trial court

dated 30.10.2009, and, the other judgment was passed dismissing the appeal

filed by the appellant/defendant against the dismissal of her application
RSA No.184/2011                                                 Page 1 of 4
 under Order 9 Rule 13 of Code of Civil Procedure, 1908 (CPC). In view of

the expansive prayer clauses in the appeal, counsel for the appellant has

made a statement that this appeal is a Regular Second Appeal against the

impugned judgment dated 16.7.2011 which dismissed the first appeal against

the final judgment dated 30.10.2009 passed in the suit.

3.           Respondent/plaintiff filed the subject suit for mandatory

injunction and mesne profits against the appellant with respect to the suit

property being first floor of the property bearing no.RZ-59/D, Gali No.9,

Tuglaqabad Extension, New Delhi. Respondent/plaintiff is the mother-in-

law and the appellant/defendant is the daughter-in-law. Appellant/defendant

was married to late Sh. Tarun Awasthi, son of the respondent/plaintiff.

4.           Before stating the facts of the present case and the arguments

urged on behalf of the appellant, it is relevant to state that the judgment of

the trial court   dated 30.10.2009 which was appealed before the first

appellate court and which is also in challenge before this Court in this

second appeal, is an exparte judgment and decree inasmuch as the

appellant/defendant after service appeared on 1.6.2007, however as she

failed to appear thereafter she was proceeded exparte on 17.9.2007. No

written statement has been filed by appellant/defendant and no evidence was

led by her. Respondent/plaintiff led evidence and proved her case, and
RSA No.184/2011                                                 Page 2 of 4
 therefore the suit was decreed by the judgment of the trial court dated

30.10.2009 for the following reliefs:-

     "(I)      A Decree of Mandatory Injunction is being passed directing
     the defendant no.1 to remove her goods and belongings from the first
     floor of the suit property as shown red in the site plan.
     (II)      The defendant no.1 to 3 and their agents etc. are restrained
     from disturbing or interfering with the peaceful possession and
     enjoyment of the plaintiff in the suit property.
     (III)     The defendant no.1 and their agents etc., are restrained for
     handing over or delivering or parting with the possession or
     otherwise creating any third party interest over the first floor of the
     suit property."

5.            Once the judgment which is appealed from shows that the

appellant/defendant did not file any written statement, did not lead any

evidence and the respondent/plaintiff proved her ownership of the suit

property, there is no reason why the impugned judgments require to be set

aside. It requires to be noted that the Supreme Court in the judgment in the

case of S.R. Batra & Anr. Vs. Smt. Taruna Batra (2007) 3 SCC 169 has

held that a daughter-in-law has no right in the property of her mother-in-law.

6.            Counsel for the appellant/defendant contended that the

document which is filed by the respondent/plaintiff herself in the suit, being

the police complaint dated 15.12.2006, itself showed that there was an

agreement for the appellant to continue to stay in the suit property and there

is a reference of an agreement in the said police complaint dated 15.12.2006.

RSA No.184/2011                                                  Page 3 of 4
 7.           I have gone through the police complaint dated 15.12.2006. At

two places, there is a reference to an agreement dated 15.12.2006, however

the agreement either pertains to another property in which the

appellant/defendant was living which is B-151, LIG Flats, Kalkaji, Part-II,

New Delhi or is an agreement with respect to conduct and behaviour of the

appellant. The police complaint dated 15.12.2006 on being read as a whole

does not show any agreement between the parties with respect to entitlement

of the appellant/plaintiff to continue in the suit property. The document is in

vernacular and this Court has gone through every line of the same alongwith

the counsel for the appellant, and it is not found that in this document there

is any settlement or agreement between the parties with respect to the suit

property as is claimed.

8.           In view of the above, no substantial question of law arises for

this appeal to be entertained under Section 100 CPC and the same is

therefore dismissed, leaving the parties to bear their own costs.




FEBRUARY 26, 2014                             VALMIKI J. MEHTA, J.

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