M. Nirmala Vs. Dr. Gandla Balakotaiah - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under.....orderbilal nazki, acj 1. this is a revision filed by the petitioner against an order passed in i.a. no. 330 of 2007 in f.c.o.p. no. 186 of 2007. the petitioner and respondent are husband and wife. the wife filed an application under order 39 read with section 151 of c.p.c. seeking an injunction against her husband from dispossessing her from the schedule property. in this connection, she relied on section 19 of the protection of women from domestic violence act, 2005 (for short, 'the act'). in her affidavit before the trial court, she stated that she had filed an o.p. for perpetual injunction. she submitted that respondent had purchased the schedule property from out of the funds given by her and her family members, but the property was purchased in the name of the respondent in the year.....

Judgment:
ORDER

Bilal Nazki, ACJ

1. This is a revision filed by the petitioner against an order passed in I.A. No. 330 of 2007 in F.C.O.P. No. 186 of 2007. The petitioner and respondent are husband and wife. The wife filed an application under Order 39 read with Section 151 of C.P.C. seeking an injunction against her husband from dispossessing her from the schedule property. In this connection, she relied on Section 19 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act'). In her affidavit before the trial Court, she stated that she had filed an O.P. for perpetual injunction. She submitted that respondent had purchased the schedule property from out of the funds given by her and her family members, but the property was purchased in the name of the respondent in the year 1996. From February, 1997, she was staying in the said property. The same was their matrimonial home. Due to the differences between the couple, they started living separately. She continued to live in the same house. She submitted that the respondent had been resorting to several tactics in order to dispossess her from the petition schedule property and he was sending strangers to the house, who, in turn, were claiming that they were prospective purchasers of that house. The said persons were threatening her that if she did not vacate the premises, she would be dealt with severely. On 21.4.2007, two persons came to her claiming to be the purchasers of the property and threatened her to leave the premises. She stated that the schedule property was the matrimonial home and she was entitled to reside there apart from being the real owner of the same.

2. In the counter-affidavit filed by respondent, he stated that he had purchased the property from out of his own funds and neither the petitioner nor her family members contributed any amount in purchasing the same and agreed that since February, 1997, the petitioner is staying in the petition schedule property; that due to differences, he started living separately and the petitioner is living in the same premises. He submitted that he did not send any persons to dispossess the petitioner. He stated that he has sold the property to one Sri P. Subbaiah through a registered sale-deed on 16.4.2007 bearing document No. 921 of 2007 and has also delivered symbolic possession. He also submitted that he had purchased the property by raising a housing loan from a bank. Since he had suffered some problems relating to his health and had incurred expenses, he could not pay installments towards housing loan. Thereafter, the banker identified the purchaser and sold the property. He also stated that he recognized the right of the petitioner for shelter and without prejudice to his contention, he was ready to provide alternative accommodation to her by paying a sum of Rs. 2,500/- per month towards rent for the premises chosen by her.

3. The Family Court dismissed the petition, but directed the respondent to pay a sum of Rs. 3,500/- per month towards rent. This order is challenged now by the wife on the ground that she was entitled to the possession of the matrimonial house in terms of Section 19 of the Act.

4. Before dealing with the above contention, it may be pointed out that this ground was not raised in the affidavit filed in support of the application before the Family Court. This is also not raised in the memo of revision and it appears that the petitioner wanted the matter to be decided within the parameters of Order 39 Rules 1 and 2. She had filed a suit for perpetual injunction, but from the impugned order it appears that such an argument was made before the Family Court and the argument has been reiterated before me. Without going to Section 19 of the Act, neither the petitioner has been able ^ to show, prima facie, a case that the house does not exclusively belong to her husband i.e. respondent nor produced any evidence to substantiate her claim over the suit premises. On the other hand, the respondent has raised loans from the bank to purchase the house. He has also sold the house to a third party for the purpose of liquidating of the loan. The Family Court has given an alternate relief to the petitioner by directing payment of Rs. 3,500/- per month for the purpose of payment of rent. As such, the petitioner would not suffer any irreparable loss. She herself is well placed and drawing a handsome salary. She on her own gets Rs. 3,929/- as house rent allowance from her employer. So, in all, she would be getting an amount of more than Rs. 7,000/- towards house rent.

5. Now coming to the question of Section 19 of the Act, it has to be read along with Section 12 because, it comes into play when an application has been made under Section 12 and an aggrieved person or a Protection Officer or any person on behalf of the aggrieved person can make an application to the Magistrate seeking an order or relief under the Act. Certain reliefs are provided under Sub-section (2). Section 19 lays down that while disposing of an application under Sub-section (1) of Section 12, the Magistrate can pass an order with respect to possession of the household. So, a sine qua non for an order under Section 19 is an application under Section 12 before the Magistrate and the Magistrate has to satisfy himself before passing an order under Section 19 that domestic violence has taken place. Therefore, in my view, in a suit pending before a Family Court, no such relief could be sought as the requirements for issue of injunction under Order 39 of C.P.C. are altogether different than the requirements under Section 19 of the Act and the law has provided different for a for different remedies.

5.1. Therefore, I do not find any ground in the 'revision, which is accordingly dismissed.