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Pooja Jain v/s Akhil Jain


Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    Civil Revision No. 2188 of 2013

    Decided On, 09 April 2013

    At, High Court of Punjab and Haryana

    By, THE HONOURABLE MR. JUSTICE M. JEYAPAUL

    For the Petitioner: Amit Rawal, Sr. Advocate with Raman Walia, Advocate. For the Respondent: Ashwani Chopra, Arun Jain, Sr. Advocates with Ashish Chopra, Sunil Sharma, Advocates.



Judgment Text

M. Jeyapaul, J.

1. Plaintiff filed suit for permanent injunction restraining the defendant from interfering with the peaceful use and occupation of the plaintiff in House No.334, Sector 9D, Chandigarh, and also for restraining the defendant from obstructing entry of the plaintiff into the premises and exit of the plaintiff from out of the said premises. Plaintiff also filed an interlocutory application seeking interim injunction during the pendency of the suit. Trial Court allowed the application. Lower appellate Court also having concurred with the decision of the trial Court dismissed the appeal preferred by the defendant. Therefore, the defendant has come up with the present revision.

2. Plaintiff has contended that he is the husband of the defendant. It is his further contention that the plaintiff and the defendant are residing in House No.334, Sector 9D, Chandigarh, ever since the date of their wedlock. They have also been blessed with two minor daughters. The suit property was settled by the plaintiff in favour of the defendant by virtue of gift-deed dated 07/05/2005 under threat, intimidation and undue pressure exerted by the defendant upon the plaintiff. It is alleged that the defendant assaulted the plaintiff on 17/07/2012 which culminated in the registration of FIR No. 147 dated 17/07/2012 under Sections 323, 506 IPC. The said case was compromised between the parties and both the plaintiff and the defendant started residing together in the house and as a result of which the above First Information Report was quashed by the High Court. Thereafter, the defendant made a complaint before the police on 05/09/2012 and got registered an FIR against the plaintiff with a false allegation that the plaintiff hit the defendant. In fact the defendant fell on the ground and sustained injuries. It is further alleged by the plaintiff that the defendant is interfering in the peaceful use and occupation of the suit premises by the plaintiff. Having thus alleged, the plaintiff has sought for interim injunction.

3. It is contended by the defendant that she has filed suit for permanent injunction against the plaintiff and his family members which is still pending adjudication before the Civil Judge (Jr. Division), Chandigarh. Defendant has also filed an application under Section 12 of the Protection of Women from Domestic Violence Act, apprehending physical and mental torture at the hands of the plaintiff. Defendant alongwith her daughters is staying in the suit property. Even in the year 2002, plaintiff gave severe beatings to the defendant but the same was not reported to the police. The defendant is the exclusive owner of the suit property; therefore, no injunction can be granted against a lawful owner. Defendant has sought for dismissal of the application praying for interim injunction.

4. Trial Court having held that though the plaintiff appears to be owner of the demised premises as per gift-deed executed by the plaintiff in favour of the defendant, the plaintiff-husband is entitled to reside in the shared household alongwith his wife. The wife cannot oust her husband by using force. Trial Court also made an observation that even though the possession is illegal, the plaintiff cannot be thrown out of the house by the defendant by use of force. Having thus observed, the trial Court granted interim injunction in favour of the plaintiff.

5. In the appeal preferred by the defendant aggrieved by the order passed by the trail Court, the first appellate Court having observed that the plaintiff who has been in settled possession of the suit property, earlier as member of the Joint Hindu Family, thereafter as owner of the suit property and finally as husband of the defendant, cannot be thrown out of the suit premises by the defendant. First appellate Court ultimately dismissed the appeal preferred by the defendant.

6. Learned senior counsel appearing for the defendant-revision petitioner would submit that the defendant has become owner of the suit property by virtue of the gif-deed executed by the plaintiff. Presently, the plaintiff is out of possession. Even otherwise, the defendant apprehends danger to her life on account of the attack launched by the plaintiff. Permitting the plaintiff to re-enter the house would adversely affect the peaceful enjoyment of the property by the defendant who is the owner thereof. Referring to the complaint given by the plaintiff and the defendant, he would submit that she had given a graphic account of the misbehaviour of the plaintiff with the defendant. Under such circumstances, discretion under Order 39 Rules 1 and 2 of the Code of Civil Procedure cannot be exercised in favour of the plaintiff.

7. Per contra, learned senior counsel appearing for the plaintiff-respondent herein would vehemently submit that the plaintiff who had gifted away the suit property on account of the pressure and the intimidation given by the defendant is virtually on the road without any shelter. Even a trespasser who is in settled possession cannot be forcibly thrown away except by due process of law. The husband who has been living in the house cannot be thrown out by the defendant on the mere allegation that he has been giving trouble to the defendant. It is his further submission that it was only the defendant who attacked the plaintiff and caused injuries which culminated in registration of the FIR. Therefore, it is his submission that the plaintiff is entitled to be in possession and his peaceful possession should be protected by the Court.

8. The plaintiff is none other than the husband of the defendant. They have been blessed with two minor daughters. It is an admitted fact that the suit property was transferred in the name of the defendant by virtue of gift-deed dated 07/05/2005 executed by the plaintiff. Of course, the said gift-deed executed by the plaintiff is under challenge in a different suit on the ground that it was obtained by threat, coercion, intimidation and undue influence. Such a plea raised by the plaintiff will have to be determined finally by the Competent Court but prima facie it has been shown by the defendant that she has become the absolute owner of the suit property by virtue of gift-deed dated 07/05/2005 executed by her husband. When the defendant has established prima-facie that she is the owner of the suit property, plaintiff cannot seek for permanent injunction in his capacity as owner of the suit property.

9. The fact remains that the plaintiff has got the suit property under partition in the joint family. Thereafter, he had gifted the suit property under gift-deed dated 07/05/2005 in favour of the defendant. Under such circumstances, it can be presumed that the plaintiff is in permissive occupation of the suit property only in his capacity as husband of the defendant.

10. The Protection of Women from Domestic Violence Act, 2005, has been enacted give remedy in the civil law for the production of women from being victims of domestic violence and also to prevent occurrence of domestic violence-in the society. The said law has not been enacted to provide such remedy to a husband who was allegedly ill-treated by his wife. The phrase 'aggrieved person under Section 2 of the said Act would mean a woman who has been subjected to any act of domestic violence by the husband.' Under Sections 17, 18 and 19 of the said Act, it is only the wife who was subjected to domestic violence can enforce a right to reside in a shared household. If she establishes that there has been domestic violence at the hands of the husband or his relatives, she can pray for residence orders directing the husband to remove himself from the shared house-hold and also restraining the husband or his relatives from entering into any portion of the shared household. She can also seek for protection order from committing any act of domestic violence at the hands of the husband or his relatives under the aforesaid Act but quite unfortunately, the trial Court has made an observation that the husband has a legal right to reside in the shared house-hold. It is made clear that the concept of shared house-hold would be applicable only to the wife who was subjected to domestic violence at the hands of the husband or his relatives under the aforesaid Act.

11. On 17/07/2012, an FIR was lodged by the plaintiff as against the defendant under Section 323, 506 IPC. As both the parties compromised the issue and submitted before the High Court in the proceedings under Section 482 Cr.P.C. that they have been living together happily, the above FIR stood quashed.

12. Pursuant to the quashment of the FIR by the High Court, it is found that the husband has sworn to an affidavit to the effect that all the charges levelled by him against his wife Pooja Jain on 17/07/2012 were false. Such a declaration had also been published in the newspaper at the instance of the plaintiff.

13. Of course it is contended that the affidavit and the declaration had been made to the above effect in order to buy peace and to save the matrimonial relationship. At any rate, it has been prima facie established by the defendant by producing the above affidavit and declaration in the above newspaper that a false complaint had been lodged by the husband as against the wife under Sections 323, 506 IPC.

14. In fact, the defendant has filed a suit as against the plaintiff on 21/07/2012 and his family members praying for permanent injunction. Thereafter, the present suit has been instituted by the plaintiff as against his wife praying for permanent injunction. It is to be noted that the pendency of the earlier suit filed by the defendant-wife against the plaintiff-husband was not specifically mentioned in the suit filed by him later. It is contended that as per compromise entered into between the parties, all proceedings, civil criminal, were to be withdrawn by the respective parties. But quite unfortunately, the plaintiff withdrew the criminal proceedings but his wife refused to withdraw the suit for permanent injunction laid by her. At any rate, as the above suit filed by the wife as against the husband for the very same relief has been pending disposal, the plaintiff should have in all fairness referred to the pendency of the said suit in his suit for permanent injunction.

15. After the compromise was entered into between the parties, the plaintiff and the defendant had lived together for about a week’s time. Thereafter, the wife lodged an FIR on 05/09/2012 against her husband. She has alleged in the said complaint that her husband was very violent. He has been threatening the defendant to part with the property already gifted in her favour. The husband also threatened her with dire consequences and has been giving her beatings mercilessly. It has been alleged that the husband has been desperate to get the property transferred to his name. Again, she has given a complaint on 06/09/2012 to the SSP Chandigarh wherein she has stated that the plaintiff used to run away to his parents’ house after picking up fight with her. She has stated therein that she was prepared to live peacefully with her husband but she cannot permit him to abuse, shout, scream or beat her up or scare her children with his loud behaviour. On 12/09/2012, she has given a complaint to the SSP Chandigarh to provide her police protection as her husband was very violent and has been hitting her brutally for many months. She has categorically stated that her husband has been absconding but he would come home if he got bail from the Court.

16. In the suit filed by the plaintiff, the plaintiff has categorically admitted that the relationship between him and his wife had been in strain. He would also state that the defendant sustained injuries not on account of his beatings but on account of her fall on the ground. The fact remains that she had sustained injuries before she lodged a complaint alleging that she was beaten by her husband.

17. In the appeal preferred by the defendant, she had given a different address of the plaintiff and the plaintiff had been duly served with notice. The truth in the allegations made in the complaint laid by the wife as against her husband would come to light only during the investigation by the Station House Officer but the defendant has shown prima facie that after she lodged a complaint a against her husband, he had left the house. In fact, the District Judge who took up the transfer application, recorded the statement made by the plaintiff that he would not enter into the house till the matrimonial dispute is settled by the Mediation and Conciliation Centre but quite unfortunately, the efforts to amicably settle their matrimonial dispute by the Mediation and Conciliation Centre had failed.

18. To top it all, Ananya, the daughter of the plaintiff and the defendant, who was a student of 8th class in Carmel Convent School, Chandigarh, proceeded to the office of the Senior Superintendent of Police, UT, Chandigarh, along with her school Principal and lodged a complaint with him alleging ill treatment being meted out to her mother at the hands of her father. She has stated that she and her mother are living in fear.

19. As already held by me, the defendant has established prima-facie that she is the owner of the suit property. Plaintiff has lived with her after he gifted the suit property in favour of his wife only in his capacity as husband of the defendant. After the compromise fell through and the complaints lodged by the wife against the husband, the plaintiff has come out of the house. It is the admitted case of the plaintiff that the matrimonial relationship is under strain. It has also been established prima facie that the defendant and her children apprehend danger to their life and property.

20. The power conferred under Order 39 Rules 1 and 2 of the Code of Civil Procedure is discretionary in nature. Such an equitable relief cannot be granted as a matter of right or as a matter of course. If the equitable consideration suggest that the grant of interim injunction would not meet the ends of justice, the Court shall not exercise its discretion in favour of the plaintiff.

21. In the instant case, of course, the plaintiff had been living along with his wife in his capacity as husband for more than eight long years but the relationship has strained and the wife apprehends danger to her life and property. Plaintiff also is not presently residing in the house. If he is permitted to enter the house and reside therein, neither the plaintiff nor the defendant would have peace of mind and comfortable living. The complaints lodged by either of the parties against each other would suggest that living of the husband with the wife in the subject property would definitely aggravate their adversity. Inasmuch as none of them had approached the Competent Court for divorce, there is every likelihood for an amicable settlement of their matrimonial dispute in course of time. But the whole atmosphere would be vitiated and the chance for such reconciliation would reach a point of no return if the plaintiff is permitted to re-enter the house.

22. In view of the above, I find that the plaintiff has failed to establish a prima facie case. The balance of convenience is only in favour of the defendant. Irreparable injury would be caused to the defendant, if the interim injunction is granted to the plaintiff. But quite unfortunately, both the Courts below failed to appreciat

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e the issue involved in the proper perspective and granted the relief sought for by the plaintiff. 23. It is brought to the notice of this Court that the defendant Pooja Jain has filed civil suit against her husband and others in Civil Suit No. 19882/6201 of 2012 before the court of Shree Ashish Saldi, Civil Judge (Jr. Division), Chandigarh, seeking the relief of permanent injunction and the plaintiff herein has filed a suit before the court of Shri Ajit Pal Singh, Civil Judge (Jr. Division), Chandigarh, as against the wife in Civil Suit No. 15211 of 2012 seeking the very same relief and the plaintiff has also filed another suit in Civil Suit No.343 of 2012 before the court of Shri Ajit Pal Singh, Civil Judge (Jr. Division), Chandigarh, as against his wife and others praying for declaration that he is the absolute owner of the suit property and that the gift-deed executed by him is null and void. 24. Learned Senior Advocates appearing on either side would submit that they have no objection if a direction is issued to the District Judge, Chandigarh, to consolidate all the above three suits and transfer them to a Court of competent jurisdiction for common trial. It is ordered accordingly. The Court to which all these three cases have been transferred, shall conduct common trial and dispose of all the three suits within six months from the date of receipt of records in his Court on transfer. 25. With the above direction, the application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure by the plaintiff-respondent stands dismissed. Consequently, the impugned orders passed by the Courts below are set aside and the revision petition is allowed. Revision allowed.
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