If the interpretation canvassed on behalf of the daughter-in-law is accepted, all these houses will be sharing households and the wife can well insist in living in all such houses because she had stayed with her husband for some time in those houses in the past. Such a view, as observed by the Supreme Court in that case, would lead to chaos and would be absurd. If the premises, as in the present case, is held to be a shared house, that will undoubtedly lead to chaos and no company would ever be able to provide residential accommodation to its employees and if they do, they would not be able to take back possession of such houses. Therefore, in my opinion, the provisions of the Act of 2005 has and can have no application to a third party, such as defendant
Bombay High Court
Shammi Nagpal vs Sudhir Nagpal, Director Of Hotel ... on 6 May, 2008
Bench: D Bhosale
1. This Notice of Motion is taken out by the plaintiff seeking directions to the defendants to forthwith hand over and restore to the plaintiff the vacant and peaceful possession of the premises being flat no. 209, Olympus Apartments, Altamound Road, Mumbai (for short, "the suit premises") and, in the alternative, for the appointment of the Court Receiver, High Court, Bombay as Receiver for the suit premises and put the plaintiff in possession thereof as an agent without royalty or compensation. The plaintiff is further seeking a direction to the defendants to restore to the plaintiff all movable furniture/articles taken from the suit premises. The plaintiff has also prayed for the appointment of a Commissioner to inspect and take an inventory of the suit premises and for an injunction restraining the defendants from in any manner dealing with, disposing of, alienating, encumbering or creating third party rights of any nature whatsoever in respect of the suit premises. The suit is instituted under Section 6 of the Specific Reliefs Act, 1963 alleging forcible dispossession from the suit premises between 14.3.2008 and 17.3.2008 when the plaintiff was out of India.
2. The relevant factual matrix, as disclosed from the material placed before this Court and the submissions, that are advanced by the learned senior counsel for the parties , to the extent it is necessary for deciding this motion, is as under. Defendant no. 1 and the plaintiff are husband and wife, who got married on 1.9.1987. Till 1993, they resided with the parents of defendant no. 1. Defendant no. 1 is a Director of Piem Hotels Limited (for short, "Piem"). During the period between 1993 and 1995, they were staying in Hotel President. In 1995 the suit premises was purchased by Piem as Director's accommodation for defendant no. 1. According to the plaintiff, she and defendant no. 1 resided at the suit premises from 1996 onwards till she was dispossessed in March, 2008.
2.1 On 1.4.2005, defendant no. 1 was appointed as the IT Advisor of defendant no. 2 - Indian Hotels Co.Ltd and it was then continued vide letter dated 7.3.2007. His appointment was thereafter confirmed by defendant no. 2 vide letter dated 24.8.2005. Subsequently, Piem granted licence of the suit premises to defendant no. 2 by entering into a Leave and Licence Agreement for the period from 1.8.2005 till 31.7.2007. According to defendant no. 2, this agreement was thereafter renewed and it was subsisting till the possession of the suit premises was surrendered by defendant no. 1 to them on 17.3.2008. After entering into the Leave and License Agreement, defendant no. 2 had allotted the suit premises to defendant no. 1 vide their letter dated 20.10.2005. A Service Occupancy agreement was also entered into between the defendants on 20.12.2005 and since then it appears that defendant no. 1 continued to be in possession of the suit premises as a licensee.
2.2 The plaintiff and defendant no. 1 stayed in the suit premises till August 2006. On 12.8.2006 defendant no. 1 left the suit premises and started residing at Taj President at Cuffe Parade and since then, according to the plaintiff, she was in exclusive possession of the suit premises till she was illegally dispossessed.
2.3 In December,2006 defendant no. 1 had filed M.J.Petition No. A 210 OF 2007 for annulment of the marriage before the Family Court at Bandra, Mumbai. The said petition, however, came to be disposed of by the Family Court for want of jurisdiction.
2.4 According to the plaintiff, some time in November-December 2006, upon the advice of defendant no. 1 she had changed the front door locks of the suit premises since it was found damaged. In January and February, 2008 there were complaints of water leakage from the suit premises which, according to the defendants, were not properly attended to and that the suit premises was also not properly maintained by the plaintiff.
2.5 On 13.3.2008 the plaintiff left on a business trip to Germany and Singapore. On 14.3.2008, defendant no. 2 issued a purported termination letter of the service occupancy agreement to defendant no. 1. Some time between 14.3.2008 and 17.3.2008 defendant no. 1 allegedly entered the suit premises, purportedly through the side door, and cleared out a total of 133 cartons of personal belongings of the plaintiff and stored the same in a godown at Vashi. Out of the 133 cartons defendant no. 1 claims that 79 were of the plaintiff and the remainder were his belongings. This bifurcation has not been disputed by the plaintiff. After vacating the suit premises, defendant no. 1 handed it over to defendant no. 2 on 17.3.2008.
2.6 Defendant no. 1 thereafter on 18.3.2008 informed the plaintiff by an e-mail about the alleged termination of the service occupancy agreement and handing over of the suit premises to defendant no. 2 after clearing out all the belongings in the suit premises. The plaintiff claims that she saw the e-mail on 19.3.2008 when she first came to know of an alleged agreement of Leave and License and her forcible dispossession of the suit premises. She returned to Mumbai on 19.3.2008 and since she could not enter the suit premises in view of the changed locks to the main door she has approached this Court by way of instant suit.
3. It appears that since the society refused permission to defendant no. 2 to induct its employees in the suit premises for want of NOC from Piem, it remained vacant till filing of the suit and thereafter till this date in view of the statement made by their learned senior counsel. When the Motion was placed before this Court for ad-interim relief, the learned Counsel for the parties have agreed for final disposal at this stage and accordingly it was adjourned to enable the parties to file their affidavits, rejoinders, sur-rejoinder etc.
4. In short, the case set up by the plaintiff is that she was residing at the suit premises for 13 years and it was her matrimonial home till she was dispossessed in March, 2008. She was in exclusive possession thereof since August, 2006 when defendant no. 1 had moved out and was residing separately at the Hotel Taj President. The defendants have colluded illegally and forcibly evicted her from the suit premises in her absence and without her consent between 14.3.2008 and 17.3.2008 and have illegally removed her personal and precious belonging from the suit premises during the above period when she was out of India.
4.1. On the other hand, according to the defendants, defendant no. 2 had allotted the suit premises to defendant no. 1 who, as per the terms of employment, was entitled to a furnished residential accommodation from defendant no. 2. In January, 2008 they learnt that the suit premises were being neglected and were badly maintained. During this time, defendant no. 2 also came to know that the lock to the main door of the suit premises had been unlawfully and illegally changed. In view of these breaches committed by defendant no. 1, by virtue of their right under the service occupancy agreement, defendant no. 2 terminated the said agreement. The suit premises were accordingly handed over by defendant no. 1 to defendant no. 2 to avoid legal and/or penal action being taken against him and the plaintiff.
5. I have heard learned senior counsel for the parties at great length and with their assistance gone through the entire material placed before this Court. Mr Thorat, learned senior counsel for the plaintiff, at the outset, submitted that the suit premises belonged to Piem and when the plaintiff was dispossessed, defendant no. 2 had no right to claim possession thereof either from her or from defendant no. 1. The plaintiff and defendant no. 1 were allotted the suit premises by Piem in 1995-96 and they continued to be in possession till last.
5.1. Mr.Thorat submitted that the plaintiff had no knowledge about the Leave and Licence and Service Occupancy Agreements. But he then submitted that the suit premises were given on a leave and licence by Piem to defendant no. 2 only for a period of two years expiring the said period on 31.7.2007. After this date, defendant no. 2 has absolutely no right, title or interest in and to the suit premises. Mr.Thorat, submitted that defendant no. 2 had no right either in law or equity to make any claim whatsoever in or to the suit premises or to any alleged breach of the terms of the service occupancy agreement or to question the right of the plaintiff to reside at the suit premises considering that defendant no. 1 was separated from her. He submitted that there was a collusion between the defendants who committed the illegal act of forcibly dispossessing the plaintiff without following due process of law.
5.2. Next Mr Thorat submitted that at no point of time Piem had physically handed over the suit premises to defendant no. 2 and there was no disturbance to her continuous possession of the suit premises. He submitted that the plaintiff was residing at the suit premises alone and she was not aware about the service occupancy agreement in respect of the suit premises entered between the defendant. In fact, defendant no. 1 had no keys of the main door and in view thereof defendant no. 1 has attempted to cover up the fact of forcible entry by alleging entry through the side door in his affidavit dated 16.4.2008. The said assertion, according to Mr Thorat, is patently false as the said side door had also been kept locked and latched from inside by the plaintiff.
5.3. Mr Thorat also invited my attention to the provisions in Domestic Violence Act and submitted, the plaintiff's right as a wife of the defendant to share the home is well protected therein and the defendants have taken possession of the suit premises in flagrant violation of the provisions of the said Act. He submitted that both law and equity are in favour of the plaintiff, an estranged wife, whose husband has resorted to illegal means to gain oust her from her matrimonial home and to steal her belongings in her absence. He submitted, if the defendants wished to obtain possession, they ought to have followed the due process of law. The actions of the defendants in unceremoniously throwing the plaintiff out of her home and depriving her of her personal belongings is in flagrant violation of her rights and in fact her privacy.
5.4. Lastly, Mr Thorat submitted that the defendants, who are very well placed in society and have a high standing and reputation, have unfortunately stooped to forcibly dispossessing the plaintiff by breaking open the front door and entering the suit premises and removing her possession in her absence, have committed several criminal acts and hence the reliefs sought in the Motion, deserve to be granted to protect and restore her rights in and to the suit premises. In support of his submissions, he placed reliance upon the following judgments:(i)
6. On the other hand, Mr.Dwarkadas, learned senior counsel for defendant no. 1 submitted, the plaintiff was never in exclusive possession of the suit premises though defendant no. 1 had removed himself from the suit premises for quite some time. Technically and legally defendant no. 1 continued to be in possession, he being the allottee of the suit premises as an employee of defendant no. 2.
6.1 Mr Dwarkadas submitted, the plaintiff and defendant no. 1 were in possession of the suit premises by virtue of the service occupancy agreement dated 22.12.2005 and defendant no. 1 was liable to surrender it on expiry or termination of the said agreement, which he did and, therefore, contention of the plaintiff that she was forcibly dispossessed is unsustainable in law.
6.2 Next, Mr Dwarkadas, submitted that defendant no. 1 had free and unrestricted access to the suit premises all through out and he was never prevented by the plaintiff to have such access. He also had a lot of belongings lying in the suit premises and he used to visit it frequently until January 2008, when, the plaintiff unilaterally changed the locks to the front door.
6.3 Right of the plaintiff, according to Mr Dwarkadas, to reside in the suit premises was subject to the service occupancy agreement and she had no independent right to stay in the suit premises. She was in occupation of the suit premise solely by virtue of being a family member of defendant no. 1.
6.4 Mr Dwarkadas also took me through the affidavits, rejoinder and the pleadings in support of his submissions in response to the allegation that the documents executed between the defendants are suspect and that there was collusion between the defendants to dispossess her from the suit premises. Lastly, he submitted that under any circumstances she cannot claim any right to seek restoration of possession of the suit premises. In support of his submissions, he placed reliance upon the following judgments: i) Vinodkumar Jain v. Cox & Kings (India) Ltd and Ors. 1995 (84) Comp.Cas, (ii) Gangabai wd/o Mahadeo Ramchandra Badve v. Jankibai w/o Ramchandra Badve ILR XLV Bombay Series 337, (iii) Lalita Jalan v. Bombay Gas Company Ltd
7 Mr Chhagla, learned senior counsel for defendant no. 2, submitted that party moving a civil court for possession must prove his/her legal entitlement to recover possession and the possession cannot be granted to a stranger or trespasser. He submitted, a licensee does not have juridical possession and on termination of his licence he becomes a trespasser and, therefore, he is not entitled to relief under Section
6.
7.1 Mr Chhagla submitted, the plaintiff, who claims to be the wife of defendant no. 1, has no independent or personal right to the suit premises and can claim none. There was no privity of contract between the plaintiff and defendant no. 2. He then submitted, assuming that the plaintiff is defendant no. 1's wife, a wife of an employee, during her husband's life time, is permitted a right of occupancy in the property of the company only by virtue of being a family member of the employee. Once the right of an employee to remain in possession of the property gets extinguished either on account of termination of services or otherwise, a wife or other family members in occupation cannot claim any independent right and any such occupation after extinguishment of the right of an employee would in law be unlawful.
7.2 Mr.Chhagla submitted that act of surrender of the suit premises by defendant no. 1, even if it is against a wish of the plaintiff, cannot be called illegal and in any case defendant no. 2 cannot be stated to have had forcibly dispossessed her. He submitted that no injunction, as prayed in the instant motion can be granted against defendant no. 2 who is rightful owner and in favour of a person who cannot have any legal right to claim such possession of the suit premises.
7.3 Mr Chhagla further submitted that the plaintiff is not someone who has no roof over her head, as is sought to be portrayed by her and that she in fact resides in a mansion of about 5000 sq.ft in Singapur and drawing an income of over rupees two crores per annum, and only stays in the suit premises when she visits Bombay occasionally. He, therefore, submitted that the balance of convenience is solely in favour of defendant no. 2 who need this premises for its employees.
7.4 Lastly, he submitted that the plaintiff has suppressed material facts and has not approached this Court with clean hands and, therefore, disentitled herself to grant any equitable relief. He submitted that the protection of Women and Domestic Violence Act, 2005 has and can have no application to a third party company. He placed reliance upon the following judgments:(i) Maganlal Radia v. State of Maharashtra The Bombay Law Reporter, Vol.LXXII page 784; (ii) ; (iii)Corporation of Calicut v. K.Shreenivasan
; (v) Sunita Bhagat and Ors. v. Voltas Ltd and Ors.
Company Cases Vol.84 page 28; and (vi) Sopan Sukhadeo Sable and Ors. v. Assistant Charity Commissioner and Ors.
8. Section 6 of the Specific Relief Act,1963 provides that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. The object of Section 6 is to provide a speedy remedy for that class of cases, wherein a person in physical possession of property is forcibly dispossessed from it against, his will and consent. The main question for determination, therefore, in a case under the Section is whether, the plaintiff while in physical possession of the property has been dispossessed of the same in the manner and within the time specified in the Section. The object is to check the tendency to recover possession of property by taking law in hand.
8.1 There is no prohibition under Section 6 to grant interim relief, directing to restore the possession which existed immediately before filing of the suit. However, such power, in my opinion, is to be exercised by the Court with great care and caution and only when the plaintiff shows more than just prima facie case that he/she was in lawful possession of the subject premises just before he/she was evicted unlawfully. In short, where there is sufficient material on record to show that the plaintiff was in lawful possession and he/she has been dispossessed otherwise than in due course of law, the court can grant interim relief. The Supreme Court in relied upon by Mr Thorat,learned senior counsel for the plaintiff emphasised that the nature of the enquiry under Section 6 is confined to the question of unlawful dispossession within a period of six months from institution of the suit ignoring the question of title. Keeping this position of law in view, I would now like to advert to the submissions advanced by the learned Counsel for the parties against the backdrop of the facts detailed in the earlier paragraphs.
9. The suit premises were purchased by Piem as director's accommodation. It appears, that until October, 2005 the plaintiff and defendant no. 1 were in possession of the suit premises by virtue of the first defendant's status as a director of Piem and thereafter he continued to be in possession thereof as an employee of defendant no. 2 by virtue of the service occupancy agreement. It is against this backdrop, the contention urged on behalf of the plaintiff that she was not aware about the Leave and Licence Agreement dated 11.10.2005 and Service Occupancy Agreement dated 22.12.2005 will have to be examined at the first instance.
9.1 Looking at the sequence of events between January, 2008 and March, 2008, that is, till the plaintiff was allegedly dispossessed, it would be difficult to hold that the plaintiff was totally unaware about the leave and licence and service occupancy agreements. It appears that in January, 2008, an oral complaint of water leakage was made by the society of the suit premises to the plaintiff. Similarly, the complaint was also made to defendant no. 1. Defendant no. 1, on 4.1.2008, informed defendant no. 2 that he had received complaints of water leakage in the suit premises but he could not enter the suit premises as the locks had been changed. On 7.1.2008, Col.Yadav, the representative of defendant no. 2, visited the suit premises and found that the front door locks were changed. Admittedly, Col.Yadav is an employee of defendant no. 2. The society, vide letter dated 8.2.2008, informed Piem about the leakage asking them to attend it. The plaintiff was also informed orally by the society about the leakage and she allowed the society's plumber to do some repairs between 9.2.2008 and 16.2.2008. Thereafter, on 26.2.2008, the plaintiff returned to Mumbai and saw a note from Col.Yadav, requesting her to contact him. Admittedly, the plaintiff on 27.2.2008 sent a message to Col Yadav. They fixed a meeting on 29.2.2008. The meeting was accordingly held. Col Yadav, according to the defendants, found that the flat was not properly maintained. The repairs were carried out and thereafter on 1.3.2008 the plaintiff again left on business trip. No explanation is forthcoming as to why the plaintiff responded to the note written by Col.Yadav and contacted him by sending an SMS if, according to her, she did not know about the agreements between the defendants. It is clear that she knew that Col.Yadav was General Manager, Administration, of defendant no. 2. Moreover, in paragraph 3.7 of the affidavit in support of the motion the plaintiff has clearly stated that "on and after the suit premises were given to defendant no. 1 by defendant no. 2, defendant no. 2 or anyone on their behalf including Piem did not have the keys to the main door of the suit premises." This assertion, in my opinion, prima facie, further indicates that the plaintiff was aware about the leave and licence agreement so also the service occupancy agreement.
10. The plaintiff, in order to explain as to why she changed the lock of the suit premises, has set up a case that some time in November, 2006 she found that the front door lock of the suit premises had been tampered with and, therefore, she replaced the lock on the advise given by defendant no. 1. Defendant no. 1, has however, denied this assertion stoutly. The case of the defendants, on the contrary, is that till January 2008 they had keys of the suit premises and defendant no. 1 intermittently used to visit it for some or other purposes. The plaintiff in support of her case of damage to the lock on the front door, has placed reliance upon an SMS sent by defendant no. 1 to her which, according to her, substantiate her case. She has reproduced a text of the SMS in paragraphs 7(f) and 7(i) of her Rejoinder. The SMS reads thus : "Yes, you should writ a letter to the society explaining what happened. The copy of this can also be lodged with the Gamdevi Police Station. I can get PH Security to assist in that. Will be in meetings the whole day and will speak to her later tonight after work around 9 PM." In my opinion, this SMS does not support her contention as to why she changed the lock in November,2006. At this stage, it would be very difficult to accept the statement of the plaintiff regarding change of lock, in November,2006. The case of the defendants that they learned about the change of lock, for the first time, in January,2008 when they attempted to attend the complaints of leakage in the flat sounds more probable.
11. Even if it is accepted that the plaintiff was unaware about the leave and licence and the service occupancy agreements still that would not help her at this stage of the proceedings against the backdrop of the case set by both the defendants. The case set up by defendant no. 1 is that due to irreconcilable differences with the plaintiff, he moved out of the suit premises and while doing so told the plaintiff that she could continue to reside in the suit premises during the subsistence of the service occupancy agreement. The Leave and Licence agreements and service occupancy agreements are placed on record by defendant no. 2. Existence of these documents cannot be overlooked, even if it is accepted that the plaintiff was unaware about the same. The fact remains, that such agreements between the defendants were entered into.
12. Defendant no. 2 claims that they terminated the service occupancy agreement on two grounds, firstly, the suit premises was not maintained properly and there were several complaints from the society and, secondly, the lock of the premises was changed unilaterally without their permission.
13. Defendant no. 1 claims that he was unaware of the travel plans of the plaintiff for the last two years since he was living separately and, therefore, he had no knowledge that the plaintiff during the period between 14.3.2008 and 19.3.2008 was out of India. The moment service occupancy agreement was terminated defendant no. 1 handed over possession to defendant no. 2 within two days of the receipt of the termination letter dated 14.3.2008. He claims that he attempted to contact the plaintiff to inform her about the letter of termination and since she was travelling at the relevant time their efforts failed. He further states that he had to search her e-mail ID and after having found it he sent across an e-mail to her informing about the termination of the service occupancy agreement and handing over possession of the suit premises to defendant no. 2. He contends that he was bound to surrender possession of the suit premises to defendant no. 2 to avoid penal action being initiated against him and the plaintiff.
14. It is against this backdrop, the question that falls for my consideration is whether it is possible to hold that the plaintiff was in exclusive possession of the suit premises and that she was forcibly dispossessed and, therefore, is entitled for restoration of possession to "her", it being her matrimonial home, to the exclusion of defendant no. 1, as prayed in the motion. In my, prima facie, opinion, even if it is accepted that defendant no. 1 had moved out of the suit premises and she alone was in possession since August, 2006, still technically and legally, she cannot claim exclusive possession of the suit premises. Moreover, it is not her case that defendant no. 1 had no right to enter the suit premises, nor does she state that defendant no. 1 had no keys of the suit premises till she had changed the lock. Similarly, she does not claim that the articles, which were removed from the suit premises are only her belongings and the defendant has no concerned with it. On the contrary, defendant no. 1 claims that he cleared out a total of 133 cartons of personal belongings of both, the plaintiff and defendant no. 1, which assertion has not been disputed by the plaintiff.
14.1. The plaintiff contends that the suit premises was her matrimonial home and it was in her occupation without any interruption for a period of 13 years. She also claims that since August, 2006 she was in exclusive possession of the suit premises. We do not find a definition of the phrase "Matrimonial home" in statute. According to Stroud's Judicial Dictionary of Words and Phrases, Sixth Edition, "Matrimonial Domicile" means the residence with the intention of permanent settlement of that place. In other words, the "matrimonial home' is the domicile where persons live together, actually or constructively, as man and wife. In my opinion, it means a home where both spouses have an equal right to possession, regardless of the ownership. That is, one spouse may legally own the home, but, nevertheless, both spouses will be equally entitled to live in it. If a relationship breaks down, the spouse owning the matrimonial home is not entitled to require the other spouse to leave it. Likewise, one spouse cannot unilaterally change the locks to a matrimonial home. This entitlement to equal possession can be varied only by court order or agreement. The court has power to grant exclusive possession of a matrimonial home in limited circumstances. For instance, if there is evidence of physical abuse or violence, or behaviour on the part of one of the spouses clearly adverse to the best interests of the children living in the matrimonial home. However, emotional abuse on the part of one of the spouses against the other spouse is usually not sufficient on its own to warrant an order of exclusive possession. The more subtle implications of having a matrimonial home are that the spouse 'legally owning the home' is not entitled to sell it or to encumber it without the consent of his or her spouse.
14.2 In my opinion, even the home, such as one in the present case, could also be treated as a matrimonial home so long as the employee either continues to be in possession of such home or is entitled to retain possession thereof till termination of his service or till retirement or resignation or death or termination of service occupancy agreement. The moment his right to retain possession gets extinguished such employee is under an obligation to return the said property to the company and in such eventuality the home ceases to be the matrimonial home. In the present case, the suit premises is admittedly not of defendant no. 1's ownership and he was in possession thereof right from inception as a licensee either of Piem or of defendant no. 2. Although the plaintiff has contended that the leave and licence agreement was not renewed after it had expired on 31.7.2007 and that defendant no. 2 has absolutely no right, title or interest in and to the suit premises, in reply defendant no. 2, on affidavit, has clearly stated the leave and licence agreement has been renewed and defendant no. 2 continues to be the licensee of Piem and no dispute or lis exists between Piem and defendant no. 2 with regard to his possession. At this stage, I do not find any reason to disbelieve the statement made on affidavit.
14.3 Thus, even if it is accepted that the suit premises was a matrimonial home of the plaintiff, it ceased to be so on termination of the service occupancy agreement and, therefore, prima facie, I am of the view that she would not be entitled to claim any right in it. If such view is not taken the entire system of companies offering premises to employees will break down. The companies will have to fight litigation to secure possession of such premises till the last member in the family of such employee is evicted. The law cannot be interpreted or read to protect such family members of the employees.
14.4 The plaintiff cannot claim to have any independent right or higher right than defendant no. 1, who was an allottee of the suit premises under the service occupancy agreement. Even if it is accepted that defendant no. 1 had physically removed himself out from the flat and that the plaintiff was in exclusive possession thereof the fact remains, his personal belongings, articles, as observed earlier, continued to remain in the suit premises and it appears that he used to visit it whenever he had any work. Both the defendants claim that they had a set of keys of the suit premises. Even if it is assumed that they did not have a set of keys that, by itself, is not sufficient to hold in law that she was in exclusive possession and defendant no. 1 had no right in the suit premises after he left it in August, 2006. Insofar as matrimonial home is concerned, both the spouses have equal right in it even if their relationship breaks down and such right to equal possession can be varied only by an order of the court or agreement. In the present case, it was neither.
14.5 I would not like to enter into the issues surrounding the marriage of the plaintiff and defendant no. 1. However, it cannot be overlooked that they were staying together as husband and wife for all these years and during the lifetime of defendant no. 1, she may be entitled as of right, to occupy the residential house either of his ownership or the house allotted to him by his employer by virtue of being his family member or it being a "Matrimonial Home". However, it is well settled that once the right of an employee to remain in possession of the property gets extinguished, either on account of termination of service or otherwise, a wife or other family members in occupation cannot have any independent right. Defendant no. 2 is not and cannot be stated to have any concern with the disputes or differences existing or purported to be existing inter se between defendant no. 1 and the plaintiff.
15. It is now well settled, the family members cannot claim exclusive possession or right in the residential premises allotted by the company as a condition of service by entering into the service occupancy agreement. The Supreme Court in has observed, "it cannot be ignored that the legal heirs or representatives in possession of the property acquire the right of occupancy in the property of the company by virtue of being family members of the employee or the officer during employment of the officer or the employee and not on any independent account. They, therefore, derive their colour and content from the employee or the officer and have no independent or personal right to hold on to the property of the company". The Supreme Court has further observed, "once the right of the employee or the officer to retain possession of the property, either on account of termination of services, retirement, resignation or death, gets extinguished, they (the persons in occupation) are under an obligation to return the property to the company and on their failure to do so they render themselves liable to be dealt with under Section 630 of the Act for retrieval of the possession of the property."
15.1 The Supreme Court in (supra) has held "even the wife and son of the Director of a Company wrongfully withholding property of the company are liable to be prosecuted under Section 630 of the Companies Act, 1956". It is further observed, "if the object of the provision of Section 630 of the Act is borne in mind, the expansive meaning given to the expression "employee or anyone claiming through him" will not be unrelated to the object of the provision nor is it so far fetched as to become unconstitutional."
15.2 This Court in s case (supra) has held that under Hindu Law a widow cannot assert her right of residence in a house which has been sold by her husband during his life-time, unless a charge is created in her favour prior to the sale. The right which a Hindu wife has during her husband's life-time is a matter of personal obligation arising from the very existence of the relation and quite independent of the possession by the husband of any property, ancestral or self-acquired.
15.3 The company premises are meant for deserving employees in service of the company who are in need of accommodation. In our case the suit premises was allotted to defendant no. 1. Defendant no. 2 terminated the service occupancy agreement requiring defendant no. 1 to vacate and hand over possession thereof within the stipulated time, which he did. It is against this backdrop, if the allegation of the plaintiff that she was forcibly dispossessed is examined one will have to draw a conclusion that it was not forcible dispossession but it was a surrender of the suit premises by the husband-employee to his employer. In any case defendant no. 2 cannot be stated to have dispossessed the plaintiff illegally. Defendant no. 1 terminated the service occupancy agreement which they were entitled to, and then obtained possession from its employee, that is, defendant no. 1. This, prima facie, show that a due process of law was followed by defendant no. 2 for seeking possession of the suit premises.
16. Indubitably, the act of defendant no. 1 to surrender the suit premises to his employer upon termination of the service occupancy agreement was not bonafide. It may be true, defendant no. 2 did not play any role in taking possession of the suit premises except terminating the service occupancy agreement and asking defendant no. 1 to hand over vacant possession and taking possession of the suit premises on it being handed over to them. However, the role played by defendant no. 1 in this entire process cannot be termed as innocent. He, prima facie, seems to have taken disadvantage of the situation. The manner in which he handed over possession of the suit premises on termination of the service occupancy agreement within 24-48 hours and that too behind the back of the plaintiff without awaiting her arrival was undoubtedly not innocent and it deserves to be condemned. He ought to have waited for his wife to return or atleast requested defendant no. 2 to grant some more time to vacate the suit premises. Defendant no. 2, perhaps, would have granted some more time to the plaintiff to vacate the suit premises which is evident from their offer made in the course of arguments.
16.1 Mr Chhagla, learned senior counsel, on instructions, submitted that defendant no. 2, without prejudice to their rights and contentions, are prepared to put the plaintiff in possession of the suit premises for a period of three months or for such period as the court deems fit, provided the plaintiff gives an undertaking to the Court that on expiry of that period, she would hand over vacant and peaceful possession to defendant no. 2. He submitted, during this period the plaintiff would be able to make an alternative arrangement of her accommodation in Mumbai. The plaintiff, however, refused the offer.
17. Taking overall views of the matter, I have no hesitation to hold that though the act of defendant no. 1 in handing over possession of the suit premises to defendant no. 2 was not bonafide, still defendant no. 2 cannot be stated to have dispossessed the plaintiff forcibly or without following due process of law. They did terminate the service occupancy agreement asking defendant no. 1 to surrender possession of the suit premises, which defendant no. 1, without seeking any breathing time for doing so, vacated the suit premises behind the back of the plaintiff. It may be noticed that neither the defendants nor the plaintiff has independent right in the suit premises and their possession is/was only as licensees. Piem, who is the owner of the suit premises, has not been joined as a party to the proceedings and in view thereof the stand of defendant no. 2 that there is no dispute over their right in the suit premises by virtue of the leave and licence agreement will have to be accepted at this stage.
18. Mr Thorat,learned senior counsel for the plaintiff, placed heavy reliance upon the judgment of the Supreme Court in case (supra). The Supreme Court in that case, after considering the judgments in leading Privy Council case of and also the judgment in , has observed that it is a well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, cannot be dispossessed by the owner of the property except by recourse to law. In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. The law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, had it been a case of dispossession of both, defendant no. 1 and the plaintiff, by defendant no. 2 in the manner in which it happened between 13th and 17th March, 2008, perhaps, this judgment could have certainly helped them to get back the possession of the suit premises. In the facts of the present case this judgment, in my opinion, would not help the plaintiff to seek restoration of possession of the suit premises which is now in possession of defendant no. 2.
18.1. The Judgment in 's case also, in my opinion, is of no avail to the plaintiff. In that case, right of deserted wife to contest the eviction suit was under consideration wherein the Supreme Court has observed that the tenant cannot by collusion or by deliberate prejudicial act give up the protection of law to the detriment of his family members. In my opinion, the party moving a civil court for possession must prove his/her legal entitlement to recover possession. In the present case, the plaintiff seeks restoration of possession after it was surrendered by her husband. I am afraid, no injunction can be granted against a true owner of the property at the instance of the plaintiff, who was in possession of the suit premises by virtue of her status as a wife of defendant no. 1 and not in her own right. The grant of such injunction must depend upon general principles applicable to law of injunctions and the exercise of discretion while granting injunctions. In my opinion, no injunction, as prayed, can be granted against the rightful owner in favour of a person who cannot have any independent legal right in the suit premises.
18.2 The Supreme Court in 's case, while dealing with the submissions that the plaintiff was dispossessed illegal and the person who is in settled possession, if dispossessed illegally, was entitled to protection, in paragraphs 24,25 and 26 of the report has held thus:
24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that "If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit." That a person without title but in "settled" possession -as against mere fugitive possession - can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh AIR 1968 SC 620, Ram Rattan v. State of U.P., and State
of U.P. v. Maharaja Dharmander Prasad Singh . The
leading decision quoted in these rulings is the decision of the Bombay High Court in K.K. Verma v. Union of India .
25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, In Mahadeo Savlaram Shelke v. Pune Municipal Corpn , it was held, after referring to
Woodroffe: Law Relating to Injunctions; Goyle, L.C.; Law of Injunctions; Bean, David: Injunctios; Joyce: Injunctions and other leading articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quotedShiv Kumar Chadha v. Municipal Corporation of Delhi , wherein it was
observed that injunction is discretionary and that : (SCC p.175, para 31) "Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court."
26. Reference was also made to Dalpat Kumar v. Prahlad Singh in regard to the meaning of the words "prima facie
case" and "balance of convenience" and observed in Mahadeo case that :(SCC P. 39, para 9) "9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession.
19. The decision in the case of is expressly referred to and dealt with in the case of Sopan Sukhdeo Sable. The Supreme Court in s case has observed that the principle laid down in Krishna Ram Mahale which is the same principle applied in the case of referred by the plaintiff, is subject to general principles of injunction and as to the scope of exercise of discretion while granting injunction. In that context, the Supreme Court in Sopan Sukhadeo Sable's case, after quoting , has observed that no injunction could be granted against a true owner at the instance of the person in unlawful possession. Thus, the law, as it stands today, is that no injunction, can be granted against a true owner of the property at the instance of a person in unlawful possession. Let me make clear that, at this stage, I have not entered into the controversy whether or not the possession of the plaintiff, as on the date of her dispossession, was lawful or that was of a trespasser, in view of my observations in the earlier part of the judgment that defendant no. 2 obtained possession of the suit premises from defendant no. 1, who handed it over to them on termination of his service occupancy agreement.
20. In the right of a daughter-in-law to live in her mother-in-law's house, in the light of the provisions of the Protection of Women from Domestic Violence Act, 2005, (for short, "Act of 2005") was under consideration. Admittedly, the house, in that case, was belonging to the mother-in-law. The Supreme Court considered the definition of a "shared house" so also the provisions of Sections 17 and 19 of the Act of 2005. The submission on behalf of the daughter-in-law in the said case was that since admittedly the daughter-in-law had lived in the property in question in the past, the said property was her "shared house". The Supreme Court, after considering all the relevant provisions in that case has observed that the wife is only entitled to claim right to residence in a shared house and a shared household would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member. The Supreme Court also observed that if the submission made on behalf of the daughter-in-law is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places. If the interpretation canvassed on behalf of the daughter-in-law is accepted, all these houses will be sharing households and the wife can well insist in living in all such houses because she had stayed with her husband for some time in those houses in the past. Such a view, as observed by the Supreme Court in that case, would lead to chaos and would be absurd. If the premises, as in the present case, is held to be a shared house, that will undoubtedly lead to chaos and no company would ever be able to provide residential accommodation to its employees and if they do, they would not be able to take back possession of such houses. Therefore, in my opinion, the provisions of the Act of 2005 has and can have no application to a third party, such as defendant
21. The submissions that are urged by the learned senior counsel on behalf of the plaintiff and the defendants, raising the questions as to what are the rights of a licensee?; what is the distinction between rights of a licensor and a licensee and a licensee as a trespasser?; whether possession of the plaintiff immediately after termination of the service occupancy agreement became that of a trespasser?; whether the plaintiff and defendant no. 1 are husband and wife in the eye of law?; whether the plaintiff has approached the court with clean hands?; What are her rights against defendants?; whether status of the parties and the differences between the plaintiff and defendant no. 1 had any bearing on the result of the suit?; and such other questions, which were raised in the course
22. In the result, the Notice of Motion is partly allowed. Prayers (a) and (b) in the motion are rejected and prayer (c) is allowed. The plaintiff shall collect her movable furniture and articles within a period of eight weeks from today. It is made clear that the plaintiff shall not be liable to pay the warehouse charges. It is open for the plaintiff to no. 2 in the present case. The provisions of this Act would apply only as between defendant no. 1 and the plaintiff. of arguments and the judgments relied upon by the learned Counsel in support thereof, I am not entering into and considering in view of my findings recorded and the observations made in this judgment. inspect the suit premises and take an inventory and prepare a panchnama with the aid and assistance of an officer of defendant no. 3, if she so desires, within a period of six weeks from today. Defendant no. 3 shall extend all help and co-operation if the plaintiff approaches him for necessary assistance, as aforestated. Defendant no. 2 shall not induct any of their employees in the suit premises for a period of eight weeks from today. Allotment of the suit premises, by defendant no. 2, to their employees after expiry of the period of eight weeks, as aforementioned, shall be subject to the result of the suit.
22.1. This order, however, shall not preclude the plaintiff from accepting offer made by Mr Chhagla, learned senior counsel for defendant no. 2, to put her back in possession of the suit premises for a period, as may be fixed by the court, subject to the plaintiff filing an undertaking in this Court to vacate the suit premises within the time stipulated. If the plaintiff desires to accept the offer, she may do so within five weeks from today by informing to defendant no. 2 in writing and shall file an undertaking to that effect with an advance copy thereof to the advocates for the defendants. The plaintiff will be allowed in that case to stay in the suit premises for a period of six months from the date of taking possession and shall hand it over to defendant no. 2 on expiry of the said period of six months to enable her to find her own accommodation. The notice of motion is disposed of. No costs.
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