Sangeeta Chaturvedi vs Manoj Chaturvedi
2016 Latest Caselaw 4179 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 31st May, 2016.

+      RFA No.24/2004, CM No.388/2004 (u/O 33 R-1 CPC), CM
       No.389/2004 (for stay) & CM No.17155/2005 (for directions)

       SANGEETA CHATURVEDI                       ..... Appellant
                   Through: Mr. Raman Kapur, Sr. Adv. with Mr.
                            Varun Kapur, Adv.

                                  Versus

       MANOJ CHATURVEDI                                   ..... Respondent

                  Through:               Mr. Tarun Sharma & Ms. Meenu
                                         Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure,

1908 (CPC) impugns the judgment and decree dated 28th October, 2003 of

the Court of the Additional District Judge (ADJ), Delhi in Civil Suit

No.86/2002, (i) of recovery of possession of Flat No.A-7, Lovely

Apartments, Mayur Vihar, Phase-I, Delhi; (ii) of recovery of mesne profits /

damages for use and occupation in the sum of Rs.18,000/- with effect from

1st July, 2001 to 30th June, 2002 and @ Rs.2,500/- per month from the date

of filing of the suit i.e. 30th July, 2002 till the date of delivery of possession;

and, (iii) of injunction restraining the appellant from allowing entry / stay of

her friends and relatives in the said flat and from inducting anyone else into

possession thereof.

2. Notice of the appeal was issued and status quo qua possession

directed to be maintained. Vide order dated 23rd August, 2004, Mr. Raman

Kapur, Advocate (now Senior Advocate) was requested to assist the Court

on behalf of the appellant. The Trial Court record was requisitioned.

Considering that the parties are husband and wife, attempts at mediation

were made but remained unsuccessful. Finally, on 30th May, 2006, the

appeal was admitted for hearing and the ad-interim order dated 14th January,

2004 made absolute till the decision of the appeal. The parties were again

referred to mediation but which again failed. On 23rd July, 2013, it was

informed (a) that the claim of the appellant/wife to the subject flat is on

account of the same being her matrimonial home; (b) that besides this

proceeding, divorce proceedings as well as maintenance proceedings were

also pending between the parties; (c) that electricity connection to the

subject flat stands disconnected and there are arrears of over Rs.2,50,000/- to

be paid for restoration thereof; and, (d) that the brother of the appellant/wife

is married to the sister of the respondent/husband and that marriage has also

run into problem. Attempt at mediation again made also failed. Vide order

dated 6th April, 2015, both parties were directed to file their affidavits of

assets, income and expenditure. Though the appellant/wife filed an affidavit

but the respondent/husband did not file any affidavit and the counsel for the

respondent/husband on 8th September, 2015 contended that the subject

matter of this appeal being not concerned with the aspect of maintenance,

there was no need therefor. The respondent/husband on 8th September, 2015

also offered that upon the appellant/wife vacating the flat, the

respondent/husband would in addition to the maintenance already fixed /

decided and / or being already paid, pay additional sum of Rs.7,000/- per

month to the appellant/wife for her lifetime. However, the said proposal was

also not acceptable to the appellant/wife. In this view of the matter, on 17 th

November, 2015, the counsels were heard on merits of the appeal and were

also permitted to file written submission and judgment was reserved.

Neither party has chosen to file written arguments, though brief synopsis of

submissions of the counsel for the appellant/wife is on record.

3. The only claim of the appellant/wife to remain in possession of the

subject flat being on the ground that the same is her matrimonial home, need

to burden this judgment with the details of pleadings, evidence and findings

returned by the learned ADJ, is not felt. Suffice, it is to state that the learned

ADJ, on the basis of the evidence led has disbelieved the same, finding that

the respondent/husband since prior to his marriage on 31 st January, 1992

with the appellant/wife had been living at Sita Ram Bazar, Delhi and had

purchased the subject flat only in the year 1999 and the parties had never

lived as husband and wife in the subject flat. I may in this regard notice the

plea of the respondent/husband, of the appellant/wife though staying away

from him, on coming to know of the purchase by him of the said flat, having

illegally and forcibly trespassed thereinto.

4. What is not in dispute is:

(i) that the parties in the last nearly 25 years since their marriage

have hardly lived together as husband and wife and there are no

children of the marriage;

(ii) that the parties for the last several years are embroiled in,

besides this litigation, litigation for dissolution of their marriage and

qua maintenance etc.;

(iii) that there is no possibility of any settlement, owing to the

allegation of the appellant/wife of the respondent/husband being in an

incestuous relationship and the differences in the marriage of the

brother of the appellant/wife with the sister of the

respondent/husband;

(iv) that the appellant/wife though in possession of the subject flat is

also not residing therein and is residing at Bhusawal, Maharashtra;

(v) that the subject flat, if not since the time of purchase in the year

1999 (as contended by the respondent/husband) at least since 2001

(when according to the appellant/wife the parties resided therein as

husband and wife) i.e. for the last over 15 years has been lying

unused;

(vi) that to make the subject flat habitable, arrears of electricity

charges and maintenance charges will have to be paid and expenses

incurred in making the same habitable.

5. What is however peculiar is that the respondent/husband has not

disclosed any home to which the appellant/wife can/may claim as her

matrimonial home. The respondent/husband has also shied away from filing

the affidavit of his assets as he was directed to file. In this view of the

matter, I would be reluctant to sustain the decree for recovery of possession

of the said flat and for recovery of mesne profits against the appellant/wife,

especially when the matrimonial disputes between them are still at large.

6. However, at the same time allowing the appeal and setting aside of the

decree would also not serve any purpose. The appellant/wife is unable to

make any use of the said flat, for the reason of the same being without an

electricity connection and the maintenance charges thereof having also not

been paid and owing whereto it was informed that the Co-operative House

Building Society, of which the said flat is a part, is creating hindrances in

use thereof. At the same time, the respondent/husband has also been unable

to reap any benefits of the said flat. There is also no possibility of the

respondent/husband recovering any monies under the decree for recovery of

mesne profits from the appellant/wife.

7. Thus, in either situation, the property is wasted with neither party

benefiting therefrom.

8. Though this is a civil appeal (as distinct from a writ petition under

Article 226 of the Constitution of India in exercise of jurisdiction

whereunder the Court is empowered to pass such orders as are just), the

decision whereof has to be within the confines of the procedure prescribed

by the CPC and on the basis of the pleadings, issues framed and the

evidence led, but after having given considerable thought I am of the view

that this Court in proceeding to decide the appeal in this fashion would not

be doing justice, which is the primary function of this Court.

9. Though this is a litigation pertaining to rights in immovable property

but in reality qualifies as a matrimonial litigation and with respect whereto

the Supreme Court in B.S. Joshi Vs. State of Haryana AIR 2003 SC 1386

held should not be encouraged and a hyper-technical view which would be

counter-productive and would act against the interest of women should not

be taken and should be attempted to be brought to an end.

10. I am, in the aforesaid facts, of the view that justice would be done by

modifying the judgment and decree of recovery of possession and mesne

profits against the appellant/wife into a decree for partition of the subject flat

between the appellant/wife and the respondent/husband with each having

50% undivided share therein and by directing sale of the subject flat in 'as is

where is' condition and sharing / distribution of the net sale proceeds

between the appellant/wife and the respondent/husband equally and by

further directing that the said factum be taken into consideration / account in

the divorce and maintenance proceedings between the parties, particularly in

the context of fixation of maintenance / alimony, if any payable by the

respondent/husband to the appellant/wife.

11. In doing so, I further draw strength from Order VII Rule 7 of CPC

which empowers this Court to grant relief other than that which is sought

for, which may be found just as if it had been asked for. I am of the view

that in exercise of such power, the Court instead of granting the relief of

recovery of possession of the entire flat claimed by the respondent/husband

would be entitled to grant the relief to the respondent/husband of recovery of

value of half of the flat only. Strength in this regard is also drawn from

Section 27 of the Hindu Marriage Act, 1955 which though in a proceeding

under that Act (and which this is not) entitles the Court to make appropriate

provision as it deems just and proper with respect to the property. I may

also mention that the dispute of the present nature between the husband and

wife also qualifies as a family dispute within the meaning of Section 7 of the

Family Courts Act, 1984. Order 41 Rule 33 of CPC also empowers this

Court as appellate court to make an order or decree as the case may require.

12. Accordingly, (i) the judgment and decree insofar as for recovery of

possession of Flat No.A-7, Lovely Apartments, Mayur Vihar, Phase-I, Delhi

and for recovery of mesne profits is set aside; (ii) instead a decree for

partition of the aforesaid flat by sale thereof and of distribution of net sale

proceeds thereof equally between the appellant/wife and the

respondent/husband is passed; and, (iii) the decree insofar as for injunction

against the appellant/wife however is sustained with the clarification that the

said decree for injunction shall not come in the way of sale, as aforesaid of

the flat.

The parties are left to bear their own costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

MAY 31, 2016 'bs'