Vrinda Ahuja v. Raveen Ahuja

6. Accordingly, Mr. Ashok Kumar, advocate, the Notary Public who attested the above mentioned agreement, produced the original entry register for perusal of this Court and the same was found in proper nature and entry has been made therein on 26.10.2012.

7. Brief facts of the case are that the petitioner filed the petition under Section 12 of the DV Act alleging therein that the respondent (namely Raveen Ahuja) is her father, who alongwith his family members i.e. Satish Ahuja and Prem Kant Ahuja (grand father and grand mother of the petitioner), has subjected her to domestic violence and has deprived her from financial aid to support her education. Apart from this, she has levelled allegations of the abuse and taunts. Her mother, Sneha Ahuja has already filed a petition u/s 12 of DV Act bearing CC No.2010/3/2015 alleging domestic violence and seeking various reliefs u/s 18, 19, 20 etc.

8. The petitioner also filed an application u/s 23 (2) of DV Act for grant of interim ex-parte order.

9. In this application, she had sought various interim reliefs, one of them being a restraining order qua the respondent herein from selling / alienating / transferring or creating any third party interest in property No.2009, Bank Street, Karol Bagh, New Delhi in which he has l/3rd share.

10. Ld. Metropolitan Magistrate after hearing the application of Vrinda Ahuja, passed the order on 11.01.17 stating therein, inter alia, that there is an apprehension of the alienation of property No.2009, Bank Street, Karol Bagh, New Delhi and hence, an ex-parte order for grant of prayer as per clause (e) of application u/s 23 (2) of DV Act is warranted at this stage. The respondent No.l was restrained from alienating property bearing No.2009, Bank Street, Karol Bagh, New Delhi till further orders.

11. After passing this order on 11.01.17, notice was directed to be issued to the respondents in the said petition for 10.04.17.

12. The respondent herein, aggrieved of the above stated order dated 11.01.17, filed an application u/s 25 of DV Act for modification of this order. However, prior to that, the appeal u/s 29 of the DV Act was filed on 15.02.17 by the respondent. Since an objection was taken by the petitioner herein that the respondent cannot choose two forums to seek similar relief, the counsel for the appellant/respondent herein made submission opting to withdraw the application u/s 25 of the DV Act before the Ld. Metropolitan Magistrate and it was informed that the said application had been withdrawn on 18.08.17.

13. In reply to the appeal, the petitioner had taken various grounds to challenge the appeal, one of them being that the respondent had also filed an application u/s 25 of the DV Act. Since the said application had been withdrawn, this ground to contest the appeal, that simultaneously to the appeal, the respondent was also seeking remedy before the trial court u/s 25 of the DV Act, was not considered.

14. The main ground taken before the Appellate Court was that the exparte order had been passed without affording a reasonable opportunity to the respondent herein. The similar relief which was sought in the complaint case bearing CC No.2010/3/2015 was declined on 10.12.15.

15. The mother of the petitioner, Sneha Ahuja is the petitioner in CC No.2010/3/2015, and the application u/s 12 of the DV Act, in which the order dated 11.01.2017 was passed, had been filed by Ms. Vrinda Ahuja (petitioner herein) through her attorney/mother namely Ms. Sneha Ahuja.

16. The order dated 11.01.17 had also been assailed on the ground that it was devoid of any reasoning and the Ld. MM had not recorded any satisfactory reasons regarding the existence of any domestic violence. Another ground to challenge the above said order was that the impugned order has been passed in absence of any urgency when similar relief had already been declined. Another ground to challenge the impugned order was that the respondent is one of the share holders of the commercial property and the petitioner Vrinda Ahuja, being the daughter, cannot claim any right in the said property for restraining the respondent from dealing with the property as per law.

17. After considering rival contentions of the parties, the Ld. Court below observed that a relief of the nature provided u/s 18 (e) is granted after hearing the aggrieved person and the respondent. Thus, while granting a relief ex-parte u/s 23 (2) of the Act, there must exist a circumstance of great urgency and there must be an observation by the trial court regarding the said urgency before passing any ex-parte interim order of the nature as provided in section 18 (e) of the Act. Section(s) 19 to 22 of DV Act do not lay down such condition as laid down in section 18 of DV Act. Section(s) 19 to 22 of DV Act provide various types of reliefs which can be granted while disposing application under Section 12 of DV Act. It is only section 18 of DV Act which says that relief of the nature provided under Section 18 of DV Act can be granted after hearing aggrieved person and respondent. Section 23 (2) of DV Act, however, provides for ex-parte order on the basis of "affidavit" only after recording satisfaction of act of domestic violation. Such ex-parte order can be qua any relief provided under section 18 to 22 of DV Act.

18. It is the settled proposition of law and cannot be disputed that the litigants must come to the court with clean hands and should not conceal the facts from the court. The sanctity of the judicial proceedings need to be maintained. Any fact which could have a bearing on the decision of the court must be placed before the court. The petitioner, being the daughter of the respondent, has filed the petition claiming that she has been subjected to domestic violence as she has been deprived of financial support since 2015, however, her mother Ms. Sneha Ahuja is bearing the expenses of her education by arranging loans. Undisputedly, the petition has been filed by petitioner through her mother Ms. Sneha Ahuja who had sought the similar relief in the court in her petition. It was incumbent on the petitioner therefore, to disclose the facts that a similar relief had already been declined by the court with a detailed order.

19. In the case of Satish Khosla v. M/s Eli Lilly Ranbaxy Ltd. (1998) 71 DLT 1, this Court has deprecated the conduct of the party who had refrained from disclosing in subsequent suit that the interim relief sought in the second suit was declined at earlier occasion. The facts of present case are also similar. The petitioner herein had not disclosed that the same relief was declined earlier by the court, though it was mentioned that mother of the petitioner had also filed an application under section 12 of DV Act against respondent herein. The petitioner, therefore, has kept the court in dark in this regard. A litigant is expected to bring to notice of the court all the facts and stating half truth also amount to concealment.

20. Notwithstanding the fact that the petitioner did not disclose about the previous order dated 10.12.15 passed in CC No.2010/3/2015, the court also required to justify the order while granting exparte relief and in case of grave urgency, when it becomes imperative to grant an ex-parte interim injunction, however, it should be granted for a specified period and short duration.

21. On perusal of the order passed by learned MM, it is noticed that the Ld. MM passed the order on 11.01.17 and adjourned the matter for 10.04.17. The learned Court below has observed that it is against the judicial dicta that ex-parte injunction should be for short duration.

22. So far as the question of urgency is concerned, it was found mentioned in the impugned order itself that the agreement to sell was executed in October, 2015. More than one year had passed when the alleged agreement to sell was executed. There was no averment about the time for execution of the sale deed in this agreement to sell. Therefore, when there was no information regarding the date of execution of sale deed, any urgency to restrain the respondent from alienating the property was without any basis.

23. Accordingly, the learned Court below observed that justifying an exparte restrain order, the Ld. MM could have given a short notice to the respondent in the petition to respond to the contentions raised in the application u/s 23 of the DV Act.

24. The Ld. Counsel for the petitioner argued that the appellate court should not superimpose its opinion when an ex-parte stay has been granted.

25. The contention raised before the court during the course of arguments was that the property in question i.e. No.2009, Bank Street, Karol Bagh, New Delhi is the only asset on which the respondent can rely for financial resources. It is not in dispute that the property in question is not owned by the respondent only. However, he has only l/3rd share. The Court below observed that firstly, court should have restrained itself to put restriction on the right of other co-owner of this property to dispose of the same. As any such order affecting a person's right without his liability towards the party claiming the relief, would be against the principle of natural justice. The respondent is having only l/3rd share in the said property. Though in the appeal, he had stated that his share would come to l/9th because of an MOU being executed within his family, whereby his l/3rd share in the property in question would be shared by his father and brother. The petitioner in the petition u/s 12 of the Act had described the movable and immovable properties and assets of the respondent herein in detail. Apart from l/3rd share in the property in question, he has share in partnership business and also in movable and immovable properties. So, the assets which the respondent mentioned in the application u/s 12 of DV Act would show that the property in question is not the only immovable asset in his possession. Therefore, Ld. MM should have taken into account the nature of property qua which the restraining order was sought and also assessed, prima facie, the capacity of the respondent herein to maintain the petitioner financially, who happens to be his daughter.

26. At this stage, it is not required by this court to go into the fact whether there was prima facie material to establish the existence of the domestic violence.

27. Keeping in view of the aforesaid observation, the Court below allowed the respondent to sell the property with the direction that l/3rd of the sale proceeds thereof, out of the share of the respondent, shall be kept in a Fixed Deposit by the respondent in any ‘Nationalized Bank’ under intimation to trial court and the amount so kept shall not be utilized in any manner by respondent without the permission of the trial court and the trial court shall pass appropriate order qua this amount at appropriate stage, as it would deem just and proper.

28. The grievance of the petitioner herein is that the respondent has 1/3rd share in the property in question, but he has not complied with the order dated 24.10.2017 as he has not deposited the amount, whereas, case of the respondent is that he has 1/9th share in the property in question, in view of the MOU entered into on 10.10.12. Therefore, 1/3rd of the share of the respondent which has been received by him, has already been deposited in Court. This fact has not been disputed by learned counsel for the petitioner on instructions from the mother of his client, who is present in court.

29. Keeping in view the discussion above and legal position, I am of the considered view, there is no illegality and perversity in the order 24.10.2017 passed by the court below.

30. Accordingly, I find no merit in the present petition and the same is accordingly dismissed.

31. Pending applications stand disposed of.

JUDGE NOVEMBER 13, 2019 ms