Jayanti Khanagwal vs Chatur Sain
2014 Latest Caselaw 5872 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Date of Decision: November 17, 2014

+     RSA 343/2014
      JAYANTI KHANAGWAL                                ..... Appellant
                   Through:            Mr. Yogesh Chhabra, Advocate

                          versus

      CHATUR SAIN                                         ..... Respondent
                          Through:     Mr. Anil Kathuria, Advocate

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                         JUDGMENT

%                          ORAL

Caveat No.1009/2014

Respondent is represented through counsel.

Caveat is discharged.

C.M. No.18813/2014 (u/S 151 CPC)

Allowed subject to all just exceptions.

RSA 343/2014 & C.M. No.18812/2014 (u/O XLI R 5 r/w Section 151 CPC)

The concurrent findings returned by both the courts below are that the respondent-plaintiff is entitled to possession of the suit premises. On admission, application under Order XII Rule 6 of CPC has been allowed

RSA No.343/2014 Page 1 by the trial court and affirmed by the First Appellate Court oblivious of the fact that there is already a restrain order in respect of the suit premises by the concerned Mahila Court. The facts of this case are already noted in the impugned judgment and needs no reiteration.

At the hearing, learned counsel for appellant had drawn the attention of this court to order of 11th July, 2013 (Annexure A-7) of the concerned Mahila Court vide which respondent was allowed to remain in the suit premises. Learned counsel for appellant has placed on record his affidavit to assert that the said interim order of 11 th July, 2013 is still continuing.

At the hearing, reliance was placed upon Apex Court's decision in Vimlaben Ajitbhai Patel Vs. Ajitbhai Revandas Patel & anr. (2008) 4 SCC 649 to submit that Protection of Women From Domestic Violence Act, 2005 provide a higher right in favour of wife and the said right cannot be curtailed by a civil court while deciding application under Order XII Rule 6 of CPC. Although it was submitted by learned counsel for appellant that he was not the counsel before the courts below but it was brought to the notice of the civil court that the interim order by the Mahila Court concerned is continuing but still in the application under Order XII Rule 6 CPC, a decree of possession of the suit property has been passed, which is unsustainable and deserves to be set aside.

Learned counsel for respondent had supported the impugned judgment and the trial court judgment and had submitted that the suit has been decreed on admissions and the findings returned are not erroneous and so, this appeal deserves to be dismissed.

Upon hearing and on perusal of the impugned judgment, trial court

RSA No.343/2014 Page 2 judgment, material on record and the decision cited, I find that in order to avoid conflicting decisions, the courts below ought to have directed the respondent to first get the order by the concerned Mahila Court varied or vacated and then should have decided application under Order XII Rule 6 of the CPC. Applying the ratio of the Apex Court's decision in Vimlaben Ajitbhai Patel (Supra) to the facts of this case, I find that it is against the principles of administration of justice that conflicting orders are passed by different courts. Adjudication on the application under Order XII Rule 6 of CPC ought to have been deferred to enable the parties to attain finality in respect of order of 11th July, 2014.

In view of aforesaid, impugned judgments are set aside and respondent's application under Order 12 Rule 6 of CPC is dismissed at this stage while not going into the merits of the case, with liberty to respondent to get the order of 11th July, 2014 vacated from the concerned Mahila Court and thereafter to file a fresh application under Order 12 Rule 6 of CPC.

This appeal and the application are accordingly disposed of.

                                                          (SUNIL GAUR)
                                                            JUDGE

NOVEMBER 17, 2014
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RSA No.343/2014                                                         Page 3