Delhi High Court
Atul Krishna Trivedi vs Pushpa Trivedi & Ors on 10 July, 2017
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 10th July, 2017
+ CM(M) 929/2016 & CM No.34172/2016
ATUL KRISHNA TRIVEDI ..... Petitioner
Through: Mr. R.K. Jain and Mr. Himanshu
Setia, Advs. with petitioner in person.
versus
PUSHPA TRIVEDI & ORS ..... Respondent
Through: Ms. Rachna Aggarwal, Adv. for R1
and R3.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the order dated 28th July, 2016 whereby
the Trial Court held the appellant's suit for injunction to be a suit for
possession and directed the appellant to pay the ad valorem Court-fees.
2. The appellant claims to be the owner of the suit property bearing flat
No.45, Pragati Apartments, West Enclave, Pitampura, Delhi-110034 and
was residing in the suit property up to 24th April, 2013 when the defendants
prevented the entry of the appellant in the house. The appellant claims to
have again attempted to enter his house on 04th June, 2016 but was not
allowed to enter. The appellant filed the suit for permanent and mandatory
injunction for restraining the respondents for preventing him to enter the
house.
3. Learned counsel for the appellant urged at the time of hearing that the
appellant can maintain a suit for permanent and mandatory injunction.
Reliance is placed on Padmavati Mahajan v. Yogender Mahajan, 152
(2008) DLT 363.
4. Learned counsel for the respondents submits that the appellant is
liable to pay ad valorem Court fees by treating the prayer for permanent
injunction as a prayer for possession. Learned counsel for the respondents
further submits that the respondent No.1 is the legally wedded wife of the
appellant and matrimonial disputes are pending between the parties before
various Courts. It is submitted that respondent No.1 is not a licensee. It is
submitted that the suit property is the matrimonial home of respondent No.1
and the respondents have right to stay in the suit property. It is further
submitted that the appellant's suit is barred by limitation.
5. This Court is of the view that the appellant who claims to be the
absolute owner of the suit property and was staying their till 24 th April,
2013, can maintain a suit for permanent and mandatory injunction. The law
on this issue is well settled by catena of judgments namely Gowri v. Shanthi
and Another, (2014) 11 SCC 664, Malik Mohd Tanveer v. Uzma Malik,
2016 SCC OnLine Del 4515, Mulk Raj Khullar v. Anil Kapur, 2013 (139)
DRJ 303, Hasan Ali v. Akbari Begum, 2006 (133) DLT 26, Virender
Kumar v. Jaswant Rai, 2011 SCC OnLine Del 1258 and Hori Lal v.
Sarwan Kumar, (1992) 46 DLT 173. The learned counsel for the appellant
could not cite any judgment to the contrary.
6. The appeal is allowed and the impugned order is set aside. The
valuation of the suit for the purposes of Court-fees is held to be proper and
the Trial Court shall proceed with the suit in accordance with the law.
Pending application is disposed of.
7. It is clarified that this Court has not examined respondent's objection
of limitation and the respective claims of the parties on the merits. The
parties shall urge their respective contentions before the Trial Court.
8. Learned counsels for the parties submit that this matter be referred to
Delhi High Court Mediation and Conciliation Centre to enable the parties to
make an endeavor for settlement and the report of the outcome of the
mediation be sent directly to the Trial Court.
9. List before Delhi High Court Mediation and Conciliation Centre on
20th July, 2017 at 04:30 P.M.
10. The Delhi High Court Mediation and Conciliation Centre shall
appoint a Senior Mediator to mediate between the parties. The Delhi High
Court Mediation and Conciliation Centre shall send the report of the
mediation to the Trial Court.
11. Copy of this judgment be given dasti to learned counsels for the
parties under signature of Court Master.
JULY 10, 2017 J.R. MIDHA, J.
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