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Judgment
Rajiv Sahai Endlaw, J
This appeal impugns the judgment and decree, dated 19th February, 2020 of the Family Court, in favour of the respondent no. 1/ plaintiff/husband
and against the appellant/defendant No. 1/wife, of recovery of possession of shop no. 22, on the ground floor of Archana Shopping Complex/Arcade,
Greater Kailash-I, New Delhi and for recovery of mesne profits.
The appeal came up first before this Court on 14th December, 2020, and was adjourned from time to time.
The appeal came up before this Bench on 12th March, 2021, when, on the counsel for the respondent no.1/decree holder/husband informing that a
sum of Rs.1,35,61,277/- was due as in February, 2021, towards mesne profits, we gave an option to the counsel for the appellant/judgment debtor/wife
to, if not interested in depositing the said amount in the Court, argue the appeal finally, on that only. The counsel for the appellant wife agreed and the
hearing commenced and continued on 15th March, 2021 and 7th April, 2021, when hearing was concluded and judgment was reserved.
Needless to state that all throughout the hearing, the dispute being between husband and wife, efforts were made to arrive at an amicable
settlement. However the said efforts, till the time the judgment was reserved, did not bear any fruit. However, while reserving the judgment also, the
counsels were requested to continue their efforts for amicable settlement, till the judgment was pronounced.
The appellant wife filed C.M. No.14984/2021, stating that she was ready and willing to handover vacant, peaceful and physical possession of the
subject shop to the respondent no.1/husband, subject to the decree for mesne profits being set aside. It was also stated that the appellant wife needs
about 6-7 months’ time to wind up her business in the said shop.
On receipt of the aforesaid application, the presence of the counsel for the respondent no.1/husband was sought.
We may record, that the respondent no.2 Amar Preet Singh Sohal is one of the sons of the appellant and the respondent no.1 and the respondent
no.3 Roop Shri Sohal is the wife/ex live in partner of the said Amar Preet Singh Sohal. The respondents no. 2 and 3 have not been appearing in this
appeal till now and are informed to have also not contested the proceedings from which this appeal arises.
We have today informed Mr. Vijay Chandra Joshi, Advocate for the appellant, that the respondent no.1 can be persuaded to the proposal aforesaid,
subject to the appellant as well as her two sons namely respondent no.2 Amar Preet Singh Sohal as well as Satnam Singh Sohal furnishing undertaking
to this Court, to handover vacant, peaceful and physical possession of the shop aforesaid to the respondent no.1, on or before the stipulated date. The
need for the undertaking of the sons, besides that of the appellant, is felt to ensure that if the respondent no.1 is not granted mesne profits, he at least
is certain that possession will be delivered on the stipulated date. The need for the undertaking of the sons is also felt, to ensure that even in the
unfortunate eventuality of demise of appellant, possession of the shop is delivered to the respondent no.1.
Mr. Vijay Chandra Joshi, Advocate for the appellant explained that Amar Preet Singh Sohal is a resident of Dubai and Satnam Singh Sohal is a
resident of U.K. and requested for pass-over, to enable the appellant as well as the said sons to join the virtual hearing.
On enquiry, as to who is residing with the appellant at Delhi, it is stated that Sukhmani Kaur Sohal, daughter of Amar Preet Singh Sohal is residing
with the appellant at Delhi and is a major.
In view of above, it is deemed expedient to record the undertaking of the said Sukhmani Kaur Sohal also.
Mr. Vijay Chandra Joshi, Advocate for the appellant was requested to obtain instructions from the aforesaid sons and granddaughter also, to
furnish an undertaking on their behalf.
The matter was accordingly passed over.
Now on pass over, Mr. Vijay Chandra Joshi, Advocate for the appellant states that Amar Preet Singh Sohal and Satnam Singh Sohal as well as
Sukhmani Kaur Sohal, besides the appellant, have virtually joined the hearing and he also has instructions from the appellant as well as all three of
them, to, on their behalf, state that the appellant is in vacant, peaceful and physical possession of the shop aforesaid and is in a position to deliver the
possession thereof as undertaken, to the respondent no.1 and none else is in the possession of or in control of the said shop and to jointly and severally
undertake to this Court, that (a) they will handover vacant, peaceful and physical possession of the entire shop aforesaid, to the respondent no.1, on or
before 30th June, 2021; (b) that they will hereafter and till delivery of possession as aforesaid to respondent no.1, not induct any other person into
possession of the shop or any part thereof and will not allow use of the said shop to any other person; (c) that they will pay all electricity, water and
maintenance charges with respect to the shop, till the date of vacation and delivery of vacant, peaceful, physical possession thereof to the respondent
no.1; and, (d) that they will hereafter not cause any damage to the shop and will deliver vacant, peaceful and physical possession thereof to the
respondent no.1 in a lockable state.
We have asked the counsel for the respondent no.1, whether the respondent no.1 is agreeable to waiver of decree for mesne profits, subject to the
aforesaid undertaking being accepted and the appellant and the other three persons aforesaid being ordered to be bound therewith.
The counsel for the respondent no.1 states that respondent no.1 is not willing to give up the claim under the decree for mesne profits. It is also
stated that since the judgment has been reserved, this Court, under Order XX Rule 1 of the Code of Civil Procedure, 1908 (CPC), is bound to pass
judgment. Reliance is placed on dicta of High Court of Karnataka in Rabiya Bi Kassim M. Vs. The Country Wide Consumer Financial Service Ltd.
2004 SCC OnLine Kar 195 (DB). It is also stated that the appellant should be made to give up her right to claim maintenance in future, from the
respondent no.1 and should be directed to withdraw the claims filed by the appellant against the respondent no.1.
The counsel for the appellant as well as her sons and granddaughter aforesaid states that it was/is the case of the appellant that the aforesaid shop
was given to her by the respondent no.1 in lieu of maintenance and since the appellant is now delivering possession of the shop, she would be entitled
to claim maintenance from the respondent no.1. It is also stated that sons of the appellant and the respondent no.1 have a right/share in the said shop
as the sons of the respondent no.1.
It is obvious that the respondent no.1 is in no mood to compromise and/or to settle, in spite of the appellant having agreed to deliver possession on
or before 30th June, 2021. With the appellant having agreed to so deliver possession, the challenge in this appeal, in so far as to the decree for
recovery of possession, does not survive and need not be adjudicated. What however remains, is the decree in favour of the respondent no.1 and
against the appellant, for recovery of mesne profits. What this Court has to decide is, whether it is incumbent on the Court to decide on merits the
appeal against the decree for mesne profits.
As far as the contention of the counsel for the respondent no.1 with respect to Order XX Rule 1 of the CPC and the reliance on Rabiya Bi
Kassim supra is concerned, the same would not apply to the proceedings under the Family Courts Act, 1984. Section 9 of the said Act mandates the
Court to, in every proceeding under the said Act, endeavour to assist and persuade the parties in arriving at a settlement in respect of subject matter of
the proceedings and to follow such procedure as it may deem fit in this regard. Sub-Section (2) of Section 9 also empowers the court to, at any stage,
adjourn the proceedings if it appears that there is a reasonable possibility of a settlement. Section 10 of the said Act, though makes provisions of the
CPC applicable to the proceedings under the said Act, in Sub-Section (3) thereof provides that application of the provisions of CPC shall not prevent
the Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the proceedings. Section 13 of
the Act provides, that notwithstanding anything contained in any law, no party to a proceeding before a Family Court shall be entitled, as of right, to be
represented by a legal practitioner. Sections 14 and 15 of the Act also dilute the application of the provisions of the Evidence Act, 1872 to a
proceeding thereunder. All this indicates that the proceedings under the Family Court Act, need not be strictly in accordance with the procedure
prescribed in the CPC.
Supreme Court, in Santhini Vs. Vijaya Venketesh (2018) 1 SCC 1 stressed, that it is the duty and responsibility of a Family Court to secure speedy
settlement of disputes relating to marriage and family affairs and expressed anguish at the delays in disposal of the said disputes. Again, in Anu
Bhandari Vs. Pradip Bhandari (2018) 6 SCC 389, while closing 23 cases between husband and wife, it was observed that else, they would have gone
on for many more litigations for many more years. It was emphasized, that it is the duty of the Court to assist and persuade the parties in arriving at a
settlement and it was held that the jurisdiction of the Court is not just to decide a dispute, on the contrary the Court also has to involve itself in the
process of conciliation/mediation, to secure speedy settlement of disputes. It was yet further held that such timely intervention of the Court will not
only resolve the disputes but also settle the parties peacefully and prevent sporadic litigations between them.
It would thus be seen that the reliance by the counsel for the respondent no.1 on Order XX Rule 1 of CPC is misconceived in the present context.
Rabiya Bi Kassim supra was not a proceeding under the Family Court Act and would thus not apply. Under the Family Court Act, even after the
judgment is reserved, the Court is empowered to explore the possibility of a settlement. Even otherwise, Order XX Rule 1 of the CPC does not bar all
applications, after the judgment has been reserved and the bar is only to making of an application for setting aside ex parte. The Division Bench of this
Court in Stichting Doen â€" Postcode Loterij Vs. Vin Poly Recyclers Private Limited 2010 SCC OnLine Del 587 held that all applications are not
barred, after the judgment is reserved. The reliance by the counsel for the respondent no.1, on a judgment of another High Court, in the face of a dicta
of the Division Bench of this Court, is even otherwise not apposite.
This Court, in this appeal, is concerned only with the decree for recovery of possession of immoveable property and for mesne profits and is not
concerned with other disputes between the parties. Similarly, the claims, if any of the sons of the appellant and the respondent no.1 to the shop
aforesaid, were not the subject matter of the proceedings from which appeal arises and if there are any such claims, the said sons would be entitled to
make the same only after delivering the vacant, peaceful and physical possession of the shop to the respondent no.1. The demand of the respondent
no.1, that the appellant should withdraw all her claims against the respondent no.1, is thus unreasonable and cannot be acceded to.
Since the respondent no.1 has not agreed to a settlement qua mesne profits, we have enquired from the counsel for the appellant, in the presence
of the appellant and her sons and granddaughter, whether the appellant is agreeable to the appeal against the decree for mesne profits being dismissed,
if the appellant does not abide by her undertaking to deliver vacant, peaceful, physical possession on or before 30th June, 2021.
The counsel for the appellant states that the appellant is so agreeable.
We, in exercise of our power under Section 9 of the Family Courts Act, are of the view that it is just and proper, that the decree for mesne profits
stands extinguished/satisfied, if the appellant, on or before 30th June, 2021 delivers vacant, peaceful, physical possession of the shop to the respondent
no.1, as undertaken above.
The aforesaid undertakings of the appellant and her two sons and granddaughter are accepted and all of them are jointly and severally ordered to
be bound thereby and informed of the consequences of breach of the undertaking given to the Court.
The appeal is thus disposed of, (a) upholding the decree, insofar as for recovery of possession of shop aforesaid and dismissing the appeal to that
extent, but granting time till 30th June, 2021 to the appellant to vacate the shop; if the appellant does not deliver vacant, peaceful, physical possession
of the shop to the respondent no.1 on or before 30th June, 2021, the respondent no.1, besides initiating proceedings for Contempt of Court for breach
of undertaking given to the Court, shall also be entitled to execute the decree for recovery of possession; (b) by directing that if the appellant and/or
her sons/granddaughter deliver vacant, peaceful, physical possession of the shop to the respondent no.1 on or before 30th June, 2021, the decree for
mesne profits shall stand set aside/satisfied; however if the possession is not so delivered, the appeal in so far as against decree for mesne profits,
shall stand dismissed and the respondent no.1 shall be entitled to execute the decree for mesne profits also; and, (c) by leaving the parties to bear their
own costs.
Decree sheet be prepared.