Friday, May 31, 2013

Daughter in law has NO rights to father in law's bunglow: Gem from Bombay HC : The DIL can be evicted from the household or any part of it by a procedure established by law



Notes

  1. Employed daughter in law / "wife of the male" !, leaves husband along with her minor son (grand son of the elders in this case)
  2. She tries to occupy / squat in father-in-law's bunglow claiming that construction was part paid by her and she is also entitled to stay there under sec 17(1) of DV act
  3. The father in law is forced to institute a Regular Civil Suit No.1483/2009 in the Court of the Civil Judge, Pune to recover possession of property
  4. In this regular civil suit, the learned civil judge evaluated the evidence on hand and decreed in favour of the father in law
  5. It is pertinent to note that the daughter in law does NOT provide satisfactory proof of parting away with her money or that money was given to her estranged hubby or that the husband gave that money to the father in law for building a bunglow !!
  6. Having lost the Regular civil suit, daughter in law goes on appeal [Regular Civil Appeal No. 465 Of 2011 ] to the District Court, Pune
  7. On the appeal she also takes a stand that she was entitled to live in the house under DV act [shared household ]
  8. Daughter in law wins right to residence in this appeal @ the District Court, Pune!!
  9. FIl and MIL appeal to HC against the judgement of the District Court, Pune
  10. HC quashes the district court's judgement and decrees
  11. (a) the daughter in law's testimony / proof is NOT strong
  12. (b) daughter in law has not proven that the money given by her has been in deed used in the construction of the bunglow and
  13. (c) the daughter in law does NOT have rights to live in that prpoerty as per Sec 17(2) of the DV act (The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. ]



IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION.

Second Appeal No.115 Of 2012.

(1) Mr. Gopal Keshav Mainkar : Age : 87 Years, Occ.: Retired.
(2) Mrs. Lila Gopal Mainkar : Age : 81 Years, Occ.: Household.
Both R/o.: Plot No.18 situated in Prashant  Co  Operative  Housing Society, Survey No.135/2C/3A/4A & 136/2B, Kothrud, Pune.

................ Appellants (Ori. Plaintiffs)

Versus

(1) Mrs. Medha Subhash Mainkar : Age : 46 Years, Occ.: Service.
(2) Rohan Subhash Mainkar : Age : 19 Years, Occ.: Education.
Both R/o.: Plot No.18 situated in Prashant  Co  Operative  Housing Society, Survey No.135/2C/3A/4A & 136/2B, Kothrud, Pune.

................ Respondents (Ori. Defendants)


CLAIM : Appeal arising out of Judgment and Decree dated 5th December, 2011 passed by the learned District Judge -2 Pune in Regular Civil Appeal No.465 Of 2011.

Appearance => Mr. Shriram S. Kulkarni, Advocate for the Appellants. Mr. M.S. Gandhare, Advocate for Respondents.

CORAM => R.Y. GANOO, J.

DATE => 6th FEBRUARY, 2013.

ORAL JUDGMENT ::-

Notice before admission was issued in this Second Appeal. In the order dated 9th February, 2013 (Coram : R.M. Savant, J.), it was mentioned that efforts would be made to hear and decide the Second Appeal finally at the stage of admission.

[2]  The Respondents appeared before the Court through Mr. M.S. Gandhare, Advocate. This Second Appeal was adjourned from time-to-time for final disposal. It was taken up for final hearing on 1st February, 2013. It was argued on 4th  February, 2013 and posed for Judgment on 6th  February, 2013. On 4th February, 2013 learned advocate Mr. Gandhare appearing on behalf of Respondents stated that he wanted to address the court on some important points. Hence, this appeal was adjourned to today at 4.00 P.M. It was called out today and I have heard Mr. Kulkarni, learned advocate for the appellants as well as Mr. Gandhare, learned advocate for the respondents and it is in these circumstances, the Second Appeal is taken up for disposal.

[3]  On consideration of points involved, the Second Appeal is admitted. Mr. Gandhare, learned advocate for the respondents waives service. By consent it was taken up for final hearing. The appeal is admitted.

Following are the substantial question of Law =>

Que.No.1  => Whether the learned District Judge -2 Pune was right in invoking the provisions of Section 17(1) of "The Protection of Women from Domestic Violence Act, 2005." ( For short, said Act).?

Que.No.2  => Whether the Judgment and Decree dated 5th December, 2011 passedby the learned District Judge – 2 Pune in Regular Civil Appeal No.465 Of 2011 suffers from an error apparent on the face of record as regards appreciation of the evidence of both the sides.?


Few facts necessary for the disposal of this Second Appeal are as under :-

[4] Appellant No.1 Gopal is the husband of appellant No.2 Mrs. Lila. Respondent No.1 Mrs. Medha is the daughter-in-law of appellants. Respondent No.2 Rohan is grand son of appellants. The appellants have two sons by name Subhash and Prasanna. Husband of respondent No.1 Subhash is elder son; whereas Prasanna is younger to the Subhash. Plot No.18 situated in Prashant Co. Operative Housing Society, (For  short, said  Society),  Survey No.135/2C/3A/4A & 136/2B, Kothrud, Pune  was allotted to appellant No.1 as he was the member of said society. In the beginning, some construction was carried out by appellant No.1 on the said plot and thereafter, in the year 1982 ground floor was further developed and that is how, the property existed on the plot No.18 upto the year 1982. It is seen that at the instance of appellant No.1, membership of the  society was transferred in the names of Subhash and Prasanna. Thereafter, the Co .Operative society passed a resolution on 9th  April, 1985 and purport of resolution was an interest in the property cannot be transferred to third party without execution of proper and legal document. Thereafter, at the instance of present appellant No.1 and undoubtedly on account of consent given by Subhash and Prasanna, said Society executed a lease deed in favour of present appellant No.1. It is  noticed that in the year 1999 construction of first floor commenced and said construction was completed in the year 1999.

[5] The appellant instituted Regular Civil Suit No.1483/2009 in the Court of the Civil Judge, Junior Division, Pune for recovery of possession and to evict present respondent Nos. 1 and 2 from the suit premises more stated in the plaint, where the respondents have been residing. It is common ground that present appellants as well as respondents have been residing on the first floor under the same roof and no specific portion is put into possession of a particular party. In substance, by filing the said suit,the appellants wanted that respondent Nos. 1 and 2 should leave the suit premises. In the plaint, it is stated that the behaviour of respondent No.1 was not befitting the behaviour of daughter-in-law and she used to harass the appellants in many ways and that resulted in appellants taking decision that respondents should be asked to leave the bungalow situated on the plot No.18.

[6] Respondents contested the suit. The allegations levelled against respondent No.1 as regards improper behaviour were denied. Some explanation was given as to how, respondent Nos.1 and 2 were left alone by her husband Subhash and what are the activities of Subhash after he has left respondent Nos. 1 and 2 in the company of present appellants. In the Written-Statement defence is taken by Resp. No.1 that she was working and she had handed over certain amount to her husband i.e. Subhash for utilizing the same for construction of the first floor. It was also contended by respondent No.1 that between the period in the year 1981 and upto the year 2009 the membership in respect of said plot No.18 stood in the name of Subhash and Prasanna jointly and construction as regards the first floor was carried out at the behest of Subhash and Prasanna and plans were sanctioned at the instance of Subhash. It was also alleged that even for some time, assessment bills stood in the names of appellant No.1 as well as Subhash and Prasanna. On the basis of the these points, respondent No.1 contended before the trial court that as Subhash had constructed first floor, she in the capacity of wife of Subhash has every right to reside in the premises as marriage between herself and Subhash is in subsistence.

[7] It is required to be clarified that at the time of institution of the suit, respondent No.2  Rohan was minor. Therefore, he had contested the suit through his mother and no separate Written- Statement was filed. In any case, no specific stand is taken by respondent No.2 before this court that he was subjected to prejudice on account of the events took place uptill now.

[8] At the trial level, appellant No.1 Gopal adduced evidence as PW 1. P.W.2 Mr. V.D. Limaye, gave evidence in his capacity as office bearer of Prashant Co. Operative Housing Society. On behalf of the respondents, respondent No.1 Medha stepped into the witness-box.

[9] The appellant No.1 in his evidence came out with a case that construction of the ground floor as well as first floor has been done at his costs and he is the owner of entire bungalow.  So far as cross-examination of appellant No.1 is concerned, it is required to be observed that evidence of appellant No.1 has not been shattered as regards his stand that he incurred expenses and was responsible for constructing the bungalow. Even the stand of respondent No.1 was not effectively put up and  nothing has  been elicited in the cross- examination of appellant No.1 to record any admission in favour of respondent No.1.

[10] Respondent  No.1  stepped  into  the  witness  box.  Her evidence mainly surrounded the situation which she had to undergo. So far as main point is concerned she had not given evidence in her examination-in- chief to disclose as to how much amount she had given to her husband and out of that, how much amount her husband used  in  construction  of  the  bungalow.  In  cross-examination  of respondent No.1 she had categorically admitted that she does not have any documentary evidence in support of her contention that she had spent money for construction. She also admitted that, she has no documentary evidence to  show that,  Prasanna had spent for construction of first floor of bungalow. In substance, evidence led by Resp. No.1-Medha was not at all convincing so as to support her stand that either her husband - Subhash or herself or Prasanna participated and spent money in the construction of first floor or even part of the ground floor of said bungalow.

[11] With these  material, the learned trial judge decreed the suit  by his  Judgment and Decree  dated 2nd  May,  2001.

Being aggrieved by the said Judgment and Decree, present Respondent Nos.1 and 2 preferred Regular Civil Appeal No. 465 Of 2011 in the District Court, Pune. It was allowed by the Judgment and Decree dated 5th December, 2011 and Judgment and Decree passed by the trial court in Regular Civil Suit No. 1483/2009 was quashed and set aside.

[12] On account of this, Mr. Gopal and Mrs. Lila (present appellants) challenged the Judgment and Decree passed by the learned District Judge, Pune in Regular Civil Appeal No.465/2011, by way of this Second Appeal.

[13] Mr.  Kulkarni,  learned  advocate  for  the  appellants submitted that since in the Written-Statement specific stand was taken by Resp.No.1-Medha that she had delivered money to her husband Subhash and Subhash used the same for construction of bungalow, it was necessary for her to discharge the burden. He submitted that Resp. No.1-Medha has failed to discharge the said burden.  He further submitted that, once Resp.No.1-Medha had taken stand that part of that amount for construction was spent by Subhash; it would naturally mean that if that part is accepted, rest of the expenses were incurred by the appellant 1. He therefore, submitted that primary burden was on Resp.No.1 to prove that her husband utilized the amount which she had paid to him for the construction of first floor, and surely if this court comes to the conclusion that Resp.No.1 has failed to discharge her burden, Judgment and Decree passed by the appellate court should be set aside and confirm the decree passed by the trial court.

[14] Mr. Kulkarni, learned advocate took me through the entire record as it was necessary for this court to ascertain whether the learned District  Judge had appreciated the  evidence  in  proper perspective. I have with the assistance of Mr. Kulkarni as well as Mr. Gandhare gone through the evidence. Resp.No.1-Medha has not been able to prove that she had handed over money to her husband Subhash which were utilized by him for the construction of first floor of bungalow. Mr. Kulkarni, learned advocate also pointed out admission on part of Resp.No.1-Medha where she has admitted that she is unable to produce any documentary evidence in support of her case.

[15] As against this learned advocate Mr. Ganghare submitted that primary burden was on the appellants to show that appellant No.1 had constructed the bungalow at his costs and there was no participa -tion of Subhash or Resp.No.1-Medha in the matter of construction.

[16] I have gone through the relevant evidence and I am inclined to observe that Resp.No.1-Medha has failed to discharge the burden cast upon her as regards her stand that she had handed over certain amount to Subhash and thereafter, Subhash had handed over it to the appellants or same were used for construction of bungalow. Burden on Resp.No.1-Medha was heavy. Since the case involved construction of bungalow surely substantial amount must have been spent. It was necessary for Resp.No.1 to state how much amount was spared by her. It was absolutely necessary for Resp.No.1-Medha to disclose the details of monies spent. She has failed to do so. If it was the case of Resp.No.1-Medha that she had spent for monies, it was necessary for her to explain the source of said funds alleged to have been spent. That has not been done. Hence, it is clear that Resp.No.1- Medha has failed to discharge the burden cast on her.

[17] It is pertinent to note that Resp.No.1-Medha has not examined key witness i.e. her husband - Subhash. The learned District Judge has dealt with this aspect of the matter by discussing that the relations between Resp.No.1-Medha and Subhash are strained and, therefore, it cannot be expected that Resp.No.1-Medha could easily examine her husband Subhash. But, it appears that the learned District Judge has excused Resp.No.1-Medha for non examining her husband. In my view, if at all Resp.No.1-Medha wanted to prove that she had paid money to her husband and said amount was utilized for the construction of the bungalow, she should have examined Subhash or at least she could have examined any other person, who would be in a position to say that money were delivered by Resp.No.1-Medha to Subhash, who in turn, used it for the construction of bungalow.  Fact remains that in the course of trial Resp.No.1 failed to adduce cogent evidence in support of her stand and to that extent the argument advanced by Mr.Kulkarni, learned advocate for the appellants that Resp.No.1-Medha failed to prove her case about delivery of money for construction of bungalow etc. will have to be accepted.

[18] Once the case of Resp.No.1-Medha that she participated in the construction by paying certain amount is negativated, it would clearly goes to show that entire construction was done at the cost of the appellant No.1, as it is nobody's case that any third person other than the parties to the suit had incurred expenses or paid any amount for the construction of bungalow.

[19] Mr.  Kulkarni,  learned  advocate  for  the  appellants submitted that the learned District Judge had given much emphasis on the fact namely, Subhash and Prasanna were the members of the Society for the period 1981 - or thereabout till the month of August, 2009. Mr. Kulkarni, learned advocate submitted that membership of said society had nothing to do with the construction to be carried on the plot and nothing to do in particular with reference to who has incurred money for construction. According to him, suit plot was initially allotted to appellant No.1 and he thereafter for the reasons best known to him transferred the membership of said plot in favour of his both the sons i.e. Subhash and Prasanna and  thereafter construction was carried out. He further submitted that there is some evidence to show that plans were sanctioned at the instance of Subhash. According to him, merely because plans were sanctioned, in the name of Subhash that by itself would not be sufficient to hold that cost of the construction was borne by Subhash.

[20] Mr.  Kulkarni,  learned  advocate  for  the  appellants submitted that plans were sanctioned at the instance of Subhash because at the relevant time, when building plan was put up in the year 1999, membership of that plot was standing in the name of the Subhash. He further submitted that, stand of respondent No.1 that as plans were sanctioned in the name of Subhash or that Subhash and Prasanna were the members of the society should not be accepted to hold that Subhash had participated in the construction, by paying money. Mr. Kulkarni, learned advocate for the appellants submitted that inference drawn by the learned District Judge in that behalf are not correct and, therefore, they should not be accepted by this Court.

[21] Mr. Gandhare appearing on behalf of the respondents submitted that view taken by the learned District Judge that as membership stood in the name of Subhash and Prasanna and as plans were sanctioned in the name of Subhash, this court should confirm the finding  recorded  by the  learned District Judge as regards  the construction at the cost of Subhash. After having considered rival contentions, I am inclined to observe that stand of present respondent No.1 that because membership stood in the name of Subhash when construction was carried out in the year 1999, or as plans stood in the name of Subhash, the construction was done at the costs of Subhash, cannot be accepted.

[22] It goes without saying that if membership of said plot was in the name of the Subhash, competent authority would not have entertained the application for sanction for plans, at the instance of appellant No.1. Naturally, the Officer of the Corporation would go into question as to who is the member of society and to whom membership is assigned and then proceed to sanction the plans. In my view, merely because the membership of the society was in the name of the Subhash at the relevant time i.e. in the year 1999 and moreso, merely because the plans were sanctioned at the instance of Subhash, these points cannot be taken as a guiding factors to hold that the construction was carried out at the cost of Subhash.

[23] Mr. Kulkarni learned advocate for the appellants addressed the court on the point relating to receipt of sum of Rs.11 Lakhs by appellant No.1 on account of surrender of certain tenement and use of said money, for acquisition of some premises at Goregaon, Mumbai.

[24] He took me through the Judgment of the District Court and pointed out that in the course of the cross-examination, appellant No.1 has admitted that certain premises at Mumbai were surrendered by appellant No.1 and lieu of that he received sum of Rs. 11 Lakhs from the landlord of the said premises and that amount was used for purchase of flat at Jogeshwari.

[25] Mr. Kulkarni, submitted that, the admission of appellant No.1 that he used Rs.11 Lakhs to purchase flat at Mumbai could not have been used by the learned District Judge to hold that appellant No.1 did have funds for construction of the first floor. He submitted that to that extent the learned District Judge erred.

[26] Mr. Gandhare, learned advocate for the respondents tried to support the view taken by the learned District Judge on the question of utilization of Rs.11 Lakhs and relevant aspects thereof. I have perused the relevant portion of the Judgment in Regular Civil Appeal No. 465/2011. Appellant No.1 was candid enough in admitting that on surrender of tenancy he received Rs.11 Lakhs and said amount was utilized by him for purchase of another flat in Mumbai. In my view, this point has nothing to do with the point as to who had incurred expenses for construction of the house. Surely respondent No.1 has not able to bring on record situation to show that appellant No.1 did not possess funds to construct first floor in the year 1999. Very fact that appellant No.1 received Rs. 11 Lakhs and he used said amount to purchase another flat clearly shows that appellant No.1 possessed substantial money to spend for construction in the year 1999. If the appellant No.1 had inadequate funds in the year 1999, he would have used said Rs.11 Lakhs for construction in the year 1999.

[27] Evidence of appellant No.1 if looked to judge the conduct of appellant No.1 it is clear that appellant No.1 was a prudent person. Even after the retirement, he has rendered some job to earn some money and that is how it can be safely observed that he was in possession of sufficient funds. Respondent No.1 has not been able to adduce before the Court any evidence by which it can be said that appellant No.1 had requested respondent No.1 to contribute for the construction. Similarly, respondent No.1 has not been able to place before the court any evidence to prove that, appellant No.1 requested Subhash to spare money and contribute for construction in the year 1999.  It appears that the learned District Judge at some place had suggested that it was appellant No.1 who should have examined Subhash. It was not necessary for appellant No.1 to examine Subhash as it was his specific case that Subhash had nothing to do with the construction. In fact, respondent No.1 should have examined Subhash or any person as stated earlier to support her stand.

[28] In the result, I am unable to accept findings given by the learned District Judge that respondent No.1 or Subhash spent monies. For the reasons mentioned the District Court committed error apparent on the face of record and said error is required to be corrected by setting aside the decision expressed in its judgment.

[29] For the reasons mentioned aforesaid I hold that appellant No.1 had spent monies to construct the bungalow.

[30] The learned District Judge has chosen to rely upon the provisions of Section 17 of said Act.  The learned District Judge has given some reasons to say that appellant No.1 is a woman residing in a domestic relationship in her household. The learned District Judge has ultimately come to the conclusion that since, he holds that provisions of Section 17(1) of said Act are attracted to this case respondent No.1 being a woman in a domestic relationship shall have the right to reside in the shared household and that is how Regular Civil Appeal No.465 Of 2011 was allowed.

[31] The learned counsel Mr. Kulkarni drew my attention to section 17(1) as well as 17 (2) of said Act and submitted that the learned District Judge has erred in applying provisions of Section 17(1) of said Act.

[32] Mr.Kulkarni, learned advocate submitted that section 17 (2) of said Act permits a person to institute a proceeding for eviction of person who is otherwise protected U/Section 17(1) of said Act.


[33] According to him, as per Section 17(2) of said Act a woman in a domestic relationship residing in the shared household cannot not be evicted or excluded from the shared household or any part of it save in accordance with the procedure established by law. He submitted that Regular Civil Suit No.1483/2009 instituted by the appellants was a due process of law adopted for eviction of respondent No.1 from the suit premises. He, therefore, submitted that even if it is accepted that respondent No.1 is covered by definition provided in section 17(1) of said Act namely "woman in a domestic relationship", she can be evicted by following due process of law.

[34] Learned advocate Mr. Kulkarni submitted that in this case, appellants had instituted suit for eviction of respondents from the suit premises and thus, sought to evict the respondents from the suit premises by following due process of law. He therefore submitted that view taken by the learned District Judge that respondent No.1 being woman in a domestic relationship is protected U/Section 17(1) of said Act, cannot be accepted.

[35] He submitted that it was necessary for the learned District Judge to read sub section 17(2) of said Act first and then determine whether the  procedure  followed by the  appellants  to  evict  the respondents was illegal or otherwise. He therefore, submitted that view taken by learned District Judge to protect respondent No.1 is contrary to the provisions of law and even contrary to the intent and purposes of said Act. Mr. Kulkarni therefore, submitted that finding recorded by the learned District Judge based on provisions of section 17(1) of said Act should be set aside.


[36] Mr. Gandhare, learned counsel for the respondents tried to justify the view taken by the learned District Judge by contending that respondent No.1 is a lady who is neglected by her husband and that she deserves protection and that is how the learned District Judge took proper view by resorting of the provisions of Section 17 of said Act. He submitted use of Section 17 of said Act done by the learned District Judge is correct and his finding should not be upset.

[37] I have heard rival submissions and I am inclined to accept submissions advanced by Mr. Kulkarni, learned advocate for the appellants. Section 17 of said Act read in its entirety would mean that "a woman in a domestic relationship" who is otherwise protected under section 17(1) of said Act can be evicted or excluded from the shared household or any part of it only in accordance with the procedure established by law.

[38] In the present suit as submitted by Mr. Kulkarni learned advocate, the appellant No.1 who is the owner of entire suit building thought it fit to seek eviction of respondent No.1 on the ground that he did not want Resp.No.1 to continue in the suit premises. In my view, approach of the learned District Judge in interpreting the provisions of Section 17 of said Act to protect the interest of respondent No.1 was contrary to the spirit of Section 17(2) of said Act. If interpretation put by the learned District Judge to the provisions of Section 17 of said Act is accepted; it would mean that person who is interested in evicting a "woman" in a domestic relationship from certain premises, cannot remove her from the same at all. Such a interpretation adopted by the learned District Judge is contrary to the well established provisions of sub section 17(2) of said Act.  In my view the learned District Judge possibly thought that by resorting to Section 17(1) of said Act he is protecting Resp.No.1 however, he failed to read 17(2) of said Act. Further, he failed in not noting that suit filed by the appellants was substantive proceeding for eviction of respondents from the suit premises. In view of above discussion the learned District Judge erred in applying provisions of Section 17(1) of said Act to the facts of this case. Hence, the Judgment delivered by the District Court will have to be set aside and Judgment of trial court will have to be restored.

[39] Mr. M.S. Gandhare, learned advocate appearing on behalf of respondents submitted that, the landlord of appellants by name Bhalchandra Vishnu Sowani instituted Regular Civil Suit No. 1717/1989 for recovery of possession of the premises from appellant No.1. He further pointed out that Appellant No.1 Gopal (defendant in that suit) adduced evidence on 7th October, 1993. Mr. Gandhare, learned advocate pointed out to me some passage from the evidence of appellant No.1 in that said suit where appellant No.1 has stated that his son Subhash and Prasanna have contributed for the construction of first floor. In  this connection,  it is  required  to be noted that examination-in-chief of appellant No.1 in the present suit ie R.C.S.No. 1483 Of 2009 was conducted in the year 2004. In such a situation if at all respondent No.1 was interested in using certain evidence tendered by appellant No.1 in Regular Civil Suit No. 1717/1989 to support her stand, it was necessary for her to confront said evidence to appellant No.1 while he was under cross-examination in the present suit. If that would have  been done,  appellant No.1 would have  give  some explanation about what he stated in the suit filed by the landlord.

[40] Having read the notes of evidence of appellant No.1 in Regular Civil Suit No. 1717/1989, it is clear that what ever appellant No.1 had stated by way of evidence in Regular Civil Suit No. 1717 Of 1989 was not confronted to him when he was under cross-examination in R.C.S. No. 1483/2009. Even otherwise, landlord - Bhalchandra in that suit was not examined as a witness by respondent No.1 in the present  suit.  In  substance,  contention  of  Mr.  Gandhare  learned advocate for the respondents that this court should read the notes of evidence of Regular Civil Suit No.1717/1989 to arrive at conclusion against appellant No.1, cannot be accepted as appellant No.1 did not get an opportunity to explain what he had stated in the that suit.

[41] There is one more aspect in the matter namely the R.C.S. No. 1483/2009 was instituted on 28th  October, 2009. Evidence of appellant Gopal was recorded in R.C.S.No.1717/1989 on 7th October, 1993. If respondent No.1 was certain as regards stand taken by her, certainly reference to those admissions given by appellant No.1 Gopal in the year 1993, much prior to filing of present suit, should have been found place in the Written-Statement filed by respondent No.1 in the present suit. No such reference is found in the Written-Statement filed in the present suit. If such reference would have been made; surely appellant No.1 would have been explained his stand about what he had  stated  in  the  R.C.S.No.1717/1989.  In  these  circumstances, argument advanced by Mr. Gandhare based on the evidence recorded in the suit filed by the landlord cannot be used to appreciate the evidence in this suit.

[42] Lastly, Mr. Gandhare learned advocate submitted that in the interest of justice, matter be remanded to the trial court to enable respondent No.1 to confront the admissions made by appellant No.1, so that justice can be done. I am not inclined to accept this submission.  Respondent No.1 had enough opportunity to deal with appellant No.1 when his cross-examination was going on. In my view, this is not a case where-in the court should remand the matter for recording the evidence.

[43] Hence,  for  the  reasons  mentioned  above,  substantial question of law framed at Sr.No.1 is answered to hold that the learned District Judge -2 Pune erred in applying the provisions of Section 17(1) of "The Protection of Women from Domestic Violence Act, 2005." Question framed at Sr.No.2 is answered to hold that the Judgment and Decree dated 5th December, 2011 passed by the learned District Judge – 2 Pune in R.C.A.No. 465 Of 2011 suffers from an error apparent on the face of record as regards appreciation of the evidence of both the sides and in particular, the stand of respondent No.1 that she had contributed to the construction of house. That, once it is observed that, respondent No.1 has failed to prove by adducing evidence that she had contributed for construction of the bungalow then stand of the appellants that appellant No.1 had spent money for construction of bungalow will have to be accepted.

[44] Once it is observed that appellant No.1 had constructed the bungalow at his costs, premises where-in respondent Nos. 1 and 2 are residing is said to be owned by appellant No.1. In such a case, residence of Resp.Nos. 1 and 2 will have to be treated as permissive residence that is to say respondent Nos. 1 and 2 would reside in the suit premises so long as appellant No.1 wishes. Since appellant No.1 had instituted specific suit for eviction of respondent Nos.1 and 2 from the suit premises and since appellant No.1 has proved on the basis of evidence that he is the owner of bungalow; his wish shall prevail and Suit filed by the appellant Nos.1 & 2 will have to be decreed.

[45] For the aforesaid reasons, following order is passed to dispose of this Appeal.

O R D E R

(i) Judgment and Decree dated 5th December, 2011 passed by the learned District Judge – 2 Pune in Regular Civil Appeal No. 465 Of 2010 is set aside. The Judgment and Decree dated 2nd May, 2011 passed by the learned 17th Joint Civil Judge, Junior Division, Pune in Regular Civil Suit No. 1483 Of 2009 is restored. In the the facts and circumstances of the case, there shall be no order as to costs.

[46] After dictating the afore
said order in open court, Mr. Gandhare, learned  advocate  for  the  respondents  submitted  that, operation of this order be stayed for some time to enable the respondents to peruse the text of this Judgment and to do needful in the matter.

[47] In my view, request is fair. Operation and effect of this judgment is stayed till 15th  March, 2013. In view of the Judgment given in Second Appeal, civil Application No.207 Of 2012 does not survive and is, accordingly, disposed of with no order as to the costs.


(R.Y. GANOO, J.)

source
Bombay high court web site