Smt. Sudha Miglani Vs. Smt. Savitri Devi
RCA No. 8/18
IN THE COURT OF SHRI TARUN YOGESH
ADDL. DISTRICT JUDGE03: SOUTH WEST DISTRICT:
DWARKA COURTS:NEW DELHI
Regular Civil Appeal No. 8/18
In the matter of:
Smt. Sudha Miglani
W/o Sh. Amit Miglani
R/o D2/89, First Floor,
Janak Puri,
New Delhi. …..Appellant
Versus
Smt. Savitri Devi
W/o Late Sh. N. C. Miglani
R/o D2/89, Ground Floor,
Janak Puri,
New Delhi. … Respondent
Date of Institution of Appeal : 06.02.2018
Date on which judgment was reserved : 19.03.2018
Date on which judgment was pronounced
:
19.03.2018
APPEAL AGAINST JUDGMENT DATED 15.03.2017 PASSED BY
SH. DHARMENDER SINGH, LD. CIVIL JUDGE (WEST),
TIS HAZARI COURTS, DELHI IN CIVIL SUIT NO. 75/15.
:J U D G M E N T:
1. Appellant Smt. Sudha Miglani (hereinafter referred as
defendant no. 1) has filed regular civil appeal assailing judgment and
Smt.
decree dated 15.03.2017 passed in Civil Suit No. 75/15 titled ”
Savitri Devi vs. Sudha Miglani Anr.”.
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Smt. Sudha Miglani Vs. Smt. Savitri Devi
RCA No. 8/18
2. Briefly stated, facts of the case leading to filing of appeal
against impugned judgment are discussed below :
2.1 Plaintiff Smt. Savitri Devi has filed suit for mandatory
injunction, permanent injunction and mesne profits Rs. 60,000/ alongwith
pendente lite and future interest against her daughterinlaw Smt. Sudha
Miglani and son Sh. Amit Miglani.
2.2 As per plaintiff’s case, her husband Sh. Nau Nihal Chand
Miglani was the original allottee of property No. D2/89, Janak Puri, New
Delhi and conveyance deed dated 25.08.2003 was subsequently issued in
his favour whereas defendants being her son and daughterinlaw were
permitted to reside in the suit property after their marriage solemnized on
24.08.1998.
2.3 Plaintiff has also averred about settlement effected between
defendants before CAW Cell in the year 2003 who thereafter started living
together in the suit property. Further, plaintiff has also stated about
collaboration agreement entered between her husband and builder for
reconstruction of property and retention of ownership of ground floor, first
floor and third floor of the property with roof rights in the year 2011.
Further, she has also averred about registered Will dated 13.10.2011
executed by her husband bequeathing all his rights in the ground floor, first
floor (without roof rights) and roof rights of the third floor in her favour for
asserting herself as sole and absolute owner of said portion of the property
to the exclusion of all other heirs or successors.
2.4 Plaintiff and her husband are stated to have resided on the
ground floor of the property whereas defendants alongwith with their two
daughters (grand daughters of plaintiff) were permitted to reside on the
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Smt. Sudha Miglani Vs. Smt. Savitri Devi
RCA No. 8/18
first floor while the third floor of the property was let out on rent.
2.5 Plaintiff has also alleged about harassment and mental torture
meted out by defendant Smt. Sudha Miglani by filing false complaints
raising vague, reckless and frivolous allegations under Protection of
Women against Domestic Violence Act, 2005 at Women Cell, PS Mayapuri
and PS Kirti Nagar and referred to petitions U/s 12 of PWDV Act, 2005 and
U/s 125 Cr.PC which are pending before Ld. MM, Mahila Court and Ld.
Family Court at Tis Hazari Courts.
2.6 Further, plaintiff has also averred about notice dated
30.12.2014 calling upon defendants to vacate the suit property, but in vain,
for seeking damages @ Rs. 1000/ per day as defendants being licence
have remained in unauthorized possession of the property and are
therefore liable to pay damage/mesne profits till the date of actual
possession first floor of the property.
3. Defendants were served summons and were directed to file
their written statement within statutory period vide order dated 22.04.2015.
Perusal of Trial Court Record reveals that father of defendant No. 1 had
appeared in court on 07.07.2015 and requested for extension of time for
filing written statement which was acceded by Ld. Trial Court directing
defendant No.1 to file her written statement within three weeks. Matter was
thereafter listed for filing written statement till 13.08.2015 when
defendants’ right to file written statement was eventually closed.
4. Defendant Smt. Sudha Miglani, thereafter, filed application U/s
151 CPC dated 15.09.2015 for condoning delay in filing written statement
and for seeking reasonable time to file her written statement which
application was heard and dismissed by Ld. Trial court vide order dated
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Smt. Sudha Miglani Vs. Smt. Savitri Devi
RCA No. 8/18
16.10.2015. Matter was, thereafter, listed for further proceedings by Ld.
Trial Court till 23.05.2016 when plaintiff was directed to lead her evidence.
5. Defendant Smt. Sudha Miglani, in the meantime, filed appeal
assailing order dated 16.10.2015 of Ld. Trial Court which appeal was
dismissed being not maintainable by Ld. ADJ01, West, Tis Hazari Courts,
Delhi vide order dated 22.12.2015 passed in MCA No. 10/15 titled “Sudha
Miglani vs. Savitri Devi”. Defendant’s counsel, nonetheless, kept on
asserting about appeal against order dated 16.10.2015 filed before
Hon’ble High Court of Delhi as recorded in ordersheets dated 14.03.2016,
03.05.2016 and 23.05.2016.
6. Plaintiff Smt. Savitri Devi has examined herself as PW1 by
tendering her affidavit in evidence which is Ex. PW1/A and relied upon
documents referred as Ex. PW1/1 to Ex. PW1/9. Her examinationinchief
was recorded on 30.08.2016 and crossexamination by defendant’s
counsel was deferred to 26.09.2016 subject to cost of Rs. 1000/ to be
paid to plaintiff. Cost Rs. 1000/ was paid to plaintiff on the next date but
crossexamination of plaintiff (PW1) could not be recorded as defendant’s
counsel was stated to have gone to Haridwar for performing shraad of his
father and matter was adjourned to 26.10.2016 for crossexamination of
PW1 upon defendant’s request, but in vain, and defendant’s right to cross
examine the plaintiff was eventually closed on 26.10.2016. No other
witness was examined by plaintiff and plaintiff’s evidence was closed on
26.10.2016.
7. Matter was thereafter listed for final arguments but defendant
filed three applications viz. application under Order VII Rule 11 CPC;
application under Order VII Rule 10 CPC and application U/s 26 and 19 of
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Smt. Sudha Miglani Vs. Smt. Savitri Devi
RCA No. 8/18
PWDV Act, 2005 r/w Section 151 CPC on 22.02.2017. Submissions were
heard and defendant’s applications were dismissed by Ld. Trial Court vide
three separate orders, all dated 14.03.2017, and plaintiff’s suit was
thereafter decreed vide judgment dated 15.03.2017 granting reliefs of
permanent injunction, mandatory injunction and damages/ mesne profits
@ Rs. 1000/ per day from the date of termination of licence till vacation of
first floor of suit property in addition to interest @ 6% per annum from the
date of institution of the suit till realization of amount.
8. Aggrieved by the judgment and decree passed by Ld. Trial
Court, defendant no. 1 (appellant herein) has filed appeal assailing
judgment upon following grounds :
8.1 That suit property is a joint family property and defendant
Smt. Sudha Miglani having resided in the property for last 19 years is
entitled to reside in shared household as her fatherinlaw had died
intestate.
8.2 That legal notice dated 30.12.2014 referred as Ex. PW1/4 is
void ab initio as suit property was not in existence at the time of execution
of impugned Will.
8.3 That alleged Will dated 13.10.2011 has not been proved as
per section 68 of the Indian Evidence Act, 1872 which fact has been
ignored by Ld. Trial Court resulting in miscarriage of justice.
8.4 That plaintiff has wrongly averred and testified in her affidavit
Ex. PW1/A that defendant Smt. Sudha Miglani and her husband are
staying on the first floor of the property whereas plaintiff’s son (husband of
defendant no. 1) is residing with his mother on the ground floor of the
property.
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Smt. Sudha Miglani Vs. Smt. Savitri Devi
RCA No. 8/18
8.5 That plaintiff is not the absolute owner of suit property and
has filed suit in connivance with defendant no. 2 to dispossess defendant
Smt. Sudha Miglani (appellant herein) from matrimonial house which is
evident from judicial record as defendant no. 2 has neither entered
appearance nor engaged any counsel.
8.6 That defendant Smt. Sudha Miglani is entitled to reside in the
shared household as per section 16 of PWDV Act and reliefs U/s 18, 19,
20, 21 and 22 can be sought by defendant in any legal proceedings before
Civil Court as per Section 26 of DV Act which was enacted for providing
more effective protection of rights of women guaranteed under the
Constitution of India.
9. Notice of appeal was issued and served upon respondent and
Trial Court Record (TCR) has been summoned from Record Room, Tis
Hazari Courts, Delhi.
10. Advocate Sh. Anuj Kumar Pandey for appellant has
addressed his submission by relying upon following caselaws:
1. A. V. Papayya Sastry Ors. vs. Government of A. P. Ors.
on 7th March 2007, Supreme Court of India.
2. Ramchandra Singh vs. Savitri Devi Ors. On 9 th October
2003, Supreme Court of India.
3. S. P. Chengalvaraya Naidu vs. Jagannath on 27 th October
1993, Supreme Court of India.
4. Preeti Sateja vs. Raj Kumari on 15 th January 2014, Delhi
High Court.
5. Roma Rajesh Tiwari vs. Rajesh Deenanath Tiwari on 12 th
October 2017, Bombay High Court.
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Smt. Sudha Miglani Vs. Smt. Savitri Devi
RCA No. 8/1811. At the outset, it is apt to record that defendant Smt. Sudha
Miglani has ingeniously avoided filing written statement before Ld. Trial
Court as written statement was not filed by defendant till 13.08.2015 when
her right to file written statement was closed and thereafter defendant's
application dated 15.09.2015 U/s 151 CPC was filed before Ld. Trial Court
for condoning delay in filing written statement and for seeking reasonable
time to file written statement which application was dismissed vide order
dated 16.10.2015 and appeal bearing MCA No. 75/15 assailing order of
Ld. Trial Court was dismissed by Ld. ADJ01, West/Delhi, Tis Hazari
Courts vide order dated 22.12.2015.12. Advocate Sh. A K Pandey for defendant having asserted
about appeal filed before Hon'ble High Court of Delhi, nevertheless, during
course of submissions has stated that appeal against order dated
16.10.2015 was not admitted by Hon'ble High Court of Delhi and was
thereafter not pursued.13. Since plaintiff's averments about conveyance deed dated
25.08.2003 issued in favour of her husband Sh. Nau Nihal Chand and
registered Will dated 13.10.2011 executed in her favour for asserting
herself as sole and absolute owner of suit property has remained
uncontroverted in the absence of written statement and her testimony has
remained unrebutted in the absence of crossexamination by defendant's
counsel so defendant Smt. Sudha Miglani (appellant herein) cannot raise
any plea contending suit property as joint family property/ shared
household at appellate stage. Similarly, defendant's contention that
registered Will dated 13.10.2011 has not been proved as per section 68 of
Indian Evidence Act, 1872 does not require any interference by this courtPage 7 of 8 DOD: 19.03.2018
Smt. Sudha Miglani Vs. Smt. Savitri Devi
RCA No. 8/18as plaintiff Smt. Savitri Devi being motherinlaw is not required to seek
declaration of title for evicting her daughterinlaw from property which
was alloted to her husband late Sh. Nau Nihal Chand Miglani and
conveyance deed dated 25.08.2003 was subsequently issued in her
favour.14. Hon'ble High Court of Delhi in para no. 29 of case titled
"Barun Kumar Nahar vs. Parul Nahar" 2013 (199) DLT 1 has referred to
various statutes including Hindu Marriage Act, 1955; the Hindu
Succession Act, 1956; the Hindu Adoption and Maintenance Act, 1956;
the Protection of Women from Domestic Violence Act, 2005 and the Code
of Criminal Procedure, 1973 for observing that none of these statutes
confer any right of maintenance including residence for the married
women as against the parents of husband.15. Judgment and decree dated 15.03.2017 of Ld. Trial Court is
therefore upheld and appeal being devoid of any merit is accordingly
dismissed. Parties to bear their own cost.16. Trial Court Record be sent back to Record Room, Tis Hazari
Courts alongwith copy of this judgment.17. Appeal file be consigned to Record Room after necessary
compliance.Digitally signed by
TARUN TARUN YOGESHYOGESH Date: 2018.03.21
16:23:39 +0530Announced in the open Court (Tarun Yogesh)
On 19.03.2018 ADJ03/South West
Dwarka / New DelhiPage 8 of 8 DOD: 19.03.2018
