Mala De vs Minati Dey & Ors.

The writ petitioner/respondent no. 1 is the mother of the respondent no. 9. The appellant is the wife of the respondent no. 9. It appears that the

appellant (in short Mala) and the respondent no. 9 (in short Ranjan) used to reside with Ranjan's parents. The property belongs to Ranjan's mother (in

short Minati). It appears that marital discord developed between Ranjan and Mala. It is contended on behalf of Ranjan and Minati that Mala started

misbehaving with Ranjan's parents who are quite advanced in age. Furthermore, Minati is a cancer patient and she is undergoing treatment. Mala used

to treat Ranjan's parents with cruelty.

It is submitted by Mr. Dey, learned advocate, appearing for Ranjan that Minati filed a suit for evicting Ranjan and Mala from the family house. The

suit was decreed ex parte. Mala filed an application for setting aside the said ex parte decree. Such application was dismissed for default. She filed an

application for restoration of the setting aside application. The restoration application was also dismissed. The decree was put into execution and with

the help of police, possession was recovered from Ranjan and Mala.

It appears that some time thereafter Mala somehow trespassed into her parent-inlaw's house and is presently residing there. Learned advocate for

Minati submits that Mala had broken the padlock on the entrance door and entered the house. Such contention is denied by the learned advocate for

the appellant. Minati lodged complaint with the police. Since there was no action on the part of the police authorities, Minati approached this Court by

filing a writ petition being W.P. No. 13200(W) of 2017.

The learned Single Judge took note of the fact that there is a family dispute between Ranjan and Minati on one hand and Mala on the other hand. The

learned Judge also noted that Mala has filed a case under Section 12 of the Protection of Women from Domestic Violence Act. The learned Judge

left the parties to pursue their respective remedies before the appropriate forum and did not pass any positive direction on the writ petition. However,

the learned Judge observed that lawful orders passed by the judicial authorities shall be implemented by the police authorities in accordance with law.

Being aggrieved by this observation, Mala has come up in appeal before us. It is submitted on behalf of Mala that she has filed a suit being Title Suit

No. 32 of 2018 before the learned Civil Judge, Junior Division, Kalyani, Nadia, wherein she has obtained an ad-interim order of injunction restraining

Minati, Ranjan and Ranjan's father from disturbing Mala's possession in respect of the property where she is presently residing. We are extremely

surprised as to how such order of injunction could be passed. A Court of competent jurisdiction passed an eviction decree against Mala and

Ranjan and the decree was executed and Mala was removed from her parent-in-law's house with the help of police. In that factual background, in our

opinion, no order of injunction should have been passed by the learned court below. Further, neither under Section 17, nor under Section 19 of the

Protection of Women from Domestic Violence Act, 2005 a daughter-in-law has right to reside in property belonging to the parents-in-law. The wife is

only entitled to claim a right of residence in a shared household and a 'shared household' would only mean a house belonging to or taken on rent by the

husband, or a house which belongs to the joint family of which the husband is a member. Such household would not include the house belonging to the

mother-in-law. This was so held by the Hon'ble Supreme Court by its judgment dated 15th December, 2006 in Civil Appeal No. 5837 of 2006 in the

case of S.R. Batra & Anr. -vs- Smt. Taruna Batra.

It is submitted on behalf of Ranjan that pursuant to the execution of the eviction decree, Ranjan has been residing separately from his parents. In fact,

he has been compelled to do so because of the trouble created by his wife in the parental household. However, for the sake of giving peace to his

parents, he is willing to allow Mala to reside with him in the rented accommodation where he is staying. At this juncture, it is submitted on behalf of

Mala that on an earlier occasion, she had moved to a rented accommodation with Ranjan. However, after sometime, Ranjan deserted her, leaving her

high and dry in such rented accommodation and stopped paying rent also.

This submission is strongly disputed by Mr. Kaushik De, learned counsel, appearing on behalf of Ranjan. We are of the firm view that Mala has no

right to reside forcibly in the property belonging to her mother-in-law. However, Ranjan has been kind enough to offer accommodation to Mala and

she will be well advised to move out from her mother-in-law's house immediately and reside with Ranjan or arrange for her independent

accommodation.

We reiterate our disappointment at the learned court below passing the adinterim order of injunction in the suit filed by Mala. In the case of Mahadeo

Savlaram Shelke & Ors. -vs- Pune Municipal Corporation & Anr., reported in (1995) 3 SCC 33, the Hon'ble Supreme Court held that after an order

of eviction was passed by following due process of law and the same had become final, no right remained in favour of the judgement debtor to remain

in possession of the suit premises. Her possession would be unlawful and, therefore, she cannot seek any injunction against the rightful owner from

evicting her. In that case, the Hon'ble Supreme Court rejected the prayer for injunction holding that there was neither balance of convenience, nor

irreparable injury would be caused to the appellant against whom the eviction decree had been passed.

The basic principle of existence of a prima facie case and balance of convenience before an ad-interim order of injunction is passed, was perhaps lost

sight of by the learned court below. We trust and hope that in future such principle of law and the other principles of law indicated above, shall be duly

kept in mind by the learned court below. In so far as Title Suit No. 32 of 2018 pending in the court of Civil Judge, Junior Division, Kalyani, Nadia, is

concerned, the defendants therein would file their written objection to the injunction application filed by Mala by 20th of June 2018. We are informed

that the injunction application has been fixed for hearing on 22nd June 2018. Mala would be at liberty to file her reply/rejoinder to the written objection

of the defendants in the meantime.

We request the learned court below not to grant any unnecessary adjournment to either of the parties and to make all endeavour to dispose of the

injunction application on 22nd June 2018 itself in the light of the principles of law discussed in this order and after considering the respective pleadings

of the parties filed before the learned court below.The learned court below is requested to submit a copy of the order whereby the injunction

application is disposed of to the Learned Registrar General of this court, who in turn shall place the same before us on the returnable date.List the

matter on 2nd July 2018 under the heading ""For Orders"".