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Judgment
M.R. Shah, J.—RULE Shri D.P. Kinariwala, learned advocate waives service of notice of Rule on behalf of Respondent No. 1 and Shri L.B. Dabhi, learned Additional Public Prosecutor waives service of notice of Rule on behalf of Respondent No. 2. In the fact and circumstances of the case and with the consent of learned advocates appearing for respective parties, petition is taken up for final hearing today.
Present petition under Article 227 of the Constitution of India has been preferred by the Petitioners - original opponents to quash and set aside the impugned order dated 17.02.2011 passed by the learned Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application No. 2/2011, by which the learned Sessions Judge has directed to transfer the proceedings of Criminal Miscellaneous Application No. 826/2010 to the Court of learned 3rd Additional Civil Judge and Additional Chief Judicial Magistrate, Ahmedabad (Rural) to be heard with Special/Regular Civil Suit No. 570/2009.
3 Shri Modi, learned advocate appearing on behalf of the Petitioners has vehemently submitted that as such there was no reason whatsoever for the learned Judge to transfer the proceedings under the Domestic Violence Act to be heard along with civil suit filed by the landlord which is to get the possession of the property in which the Petitioner No. 1 and wife were residing. It is submitted that as such an application was submitted at the time when the learned Judge was hearing the Application No. 826/2010 for dropping the proceedings and exemption and the same was only at the stage of arguments on behalf of Respondent No. 1 and at that stage Respondent No. 1 submitted the application to transfer the case. It is further submitted that as such the dispute/controversy in Domestic Application No. 826/2010 has nothing to do with the controversy in the Regular Civil Suit No. 570/2009 which was filed by the landlord to get the possession of the property in question. Therefore, it is requested to allow the present petition and to quash and set aside the impugned order.
Shri Kinariwala, learned advocate appearing on behalf of Respondent No. 1 has opposed the present petition by submitting that as it was apprehended by Respondent No. 1 that the Petitioner may surrender the possession and/or may agree for consent decree affecting the rights of Respondent No. 1, application was submitted to protect the right of Respondent No. 1. It is submitted that if suitable observations are made protecting the rights of Respondent No. 1, Respondent No. 1 may not insist for transfer of proceedings to be heard with Regular Civil Suit No. 570/2009.
Having heard the learned advocates appearing for respective parties and considering the facts narrated herein above, as such on apprehension on the part of Respondent No. 1 that the Petitioner may surrender the possession to the landlord and agree for consent decree and therefore, the proceedings under the Domestic Violence Act were sought to be heard along with civil suit. On the aforesaid ground the proceedings under the Domestic Violence Act are not required to be heard with Civil Suit No. 570/2009 filed by the landlord. It is to be noted that as such Respondent No. 1 herself is a party to Regular Civil Suit No. 570/2009 and even if the Petitioner tries to surrender the possession and/or agree for consent decree, it will always be open for Respondent No. 1 to oppose the same and/or contend that the concession by the Petitioner is not binding to her and the learned trial Court is required to pass appropriate order in accordance with law and on merits in Regular Civil Suit No. 570/2009. Whatever the concession is given by the Petitioner will never bind Respondent No. 1 and it will be open for her to defend the suit independently as a tenant/co-tenant which is required to be considered by the Court in Regular Civil Suit No. 570/2009 in accordance with law and on merits.
In view of the above observation and clarification, Shri Kinariwala, learned advocate appearing on behalf of Respondent No. 1 does not invite any further reasoned order while quashing and setting aside the impugned order passed by the learned Sessions Judge transferring the proceedings under the Domestic Violence Act. Hence, this Court is not assigning any further reasoned order.
In view of the above and for the reasons stated above and with above observations and clarifications with respect to rights of Respondent No. 1, impugned order dated 17.02.2011 passed by the learned Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application No. 2/2011 is hereby quashed and set aside and now the learned Chief Judicial Magistrate, Ahmedabad (Rural) to proceed further with the proceedings of Application No. 826/2010 in accordance with law and on merits, and without in anyway being influenced by the present order and/or earlier order. Rule is made absolute accordingly.