Full Text
HIGH COURT OF DELHI
Date of Decision: 15.07.2025
CHAHNA GUPTA .....Petitioner
Through: Mr. H.S. Phoolka, Sr. Adv.
Through: Mr. Ankur Mahindro, Mr. Amkush Satija and Ms. Divya Mishra, Advs. for R-1.
Mr. Jai Shankar, Adv. for R-2 and 3.
CM Appl. 41083/2025[Exemption from filing certified/typed copies]
JUDGMENT
1. Allowed, subject to just exceptions.
2. The Application stands disposed of. REV. PET.375/2025
3. The present Review Petition has been filed on behalf of the Respondent No.1 impugning the order dated 15.05.2025 passed by this Court [hereinafter referred to as “Order in Review”]. By the Order in Review, the order has been passed allowing the Application under Order XII Rule 6 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”] filed by the Petitioner/Plaintiff before the learned Trial Court and other antecedent directions have been passed.
4. Learned Counsel for the Review Petitioner [Respondent No.1] essentially raises two grounds of challenge. Firstly, he submits that service was not affected on Respondent No.1 in accordance with the practice directions as set out by this Court for Civil Revision Petitions. Secondly, it is contended that triable issues were raised in the Written Statement filed by Respondent No. 1 which required adjudication.
5. Learned Counsel for Review Petitioner [Respondent No.1] submits that there was no proper service affected on him prior to filing of the Petition. He seeks to rely upon the Practice Directions NO. 69/Rules/DHC/2019 dated 05.12.2019 of High Court of Delhi at New Delhi [hereinafter referred to as “Practice Directions”] in this behalf stating that service has not been affected in terms of these Practice Directions including 1(c) since no advance intimation had been sent to Respondent No. 1.
6. Learned Senior Counsel for the Petitioner refutes this contention. He submits that in terms of Practice Directions, an advance service was sent by email to Respondent No.1. He seeks to rely upon an email dated 14.05.2025 [which is annexed at page 189 of the case file]. The email reflects that service of the Petition was done on 14.05.2025. 6.[1] Learned Senior Counsel for the Petitioner also submits that notice of motion which is annexed at page 2 of the Petition sets out that the Petition is likely to be listed for hearing on 15.05.2025 or any date thereafter. Thus, it is contended that the advance service was validly effected.
7. It is apposite to extract the Practice Directions which are below:
Code of Civil Procedure, 1908 arising from an order in a pending proceeding before a Court subordinate to the High Court, an advance copy of the paper book shall be served upon each opposite party or their counsel (if any) who appeared last for such opposite party in the Trial Court. Provided that the requirement of service of advance copy of the paper book is dispensed with in respect of such opposite parties who have been proceeded ex parte before the Trial Court. (b) In the event, the opposite party is the Union of India; a State Government, a Statutory Authority, a Public Sector Undertaking, or a Government Department etc., who may have nominated Senior / Standing Counsel; Nominated Counsel; or Empanelled Counsel, such advance copy shall be served directly upon such Counsel (other than a Senior Advocate), under written endorsement of service, and not directly served upon Union of India / State Government / the concerned department, as the case may be.
(c) The petitioner shall intimate all opposite parties in the matter about the filing and likely date of listing of the said petition. The petition shall be accompanied by written proof of such intimation and their respective service, besides indicating name (s) of all opposite parties in the matter. Once the petition has been cleared for listing by the Registry, the date of listing of the petition shall be intimated by the counsel for the petitioner to each opposite party or their counsel (if any) by phone / SMS/ email. The counsel for the petitioner shall give an undertaking to this effect in his application for urgent listing of the petition.” [Emphasis supplied] 7.[1] Paragraph 1(a) of the Practice Directions provides that advance service is to effected on "each opposite party or their Counsel" while paragraph 1(c) of the Practice Directions, which would be applicable, provides that the Petitioner shall intimate all opposite parties about the filing and likely date of listing of the Petition. 7.[2] The record reflects that an email was sent by the Petitioner to two emails ID’s priyankaarukia26@gmail.com and ankitgupta.6nov@gmail.com who are the Respondent No. 1 and Respondent No. 2 in advance at 10:35 AM on 14.05.2025. The memo of parties also provides that the email id of Respondent No. 3 is also ankitgupta.6nov@gmail.com. Thus, service was effected on all the opposite parties. The notice of motion filed with the Petition also did set out that the matter shall be listed on 15.05.2025 or any day thereafter. The extract of the notice of motion setting out these details is below: "Take notice that the accompanying Revision Petition has been filed by the Petitioner, is likely to be listed before the Hon'ble Court for hearing on 15.05.2025 or any other day thereafter as per the rules."
8. This Court had after examining the documents evidencing advance service had held that none appears for the Respondents and thereafter proceeded to hear the matter.
9. On the second ground of challenge, it is the case of the Review Petitioner [Respondent No.1] that the suit property was a joint family property. Reliance in this behalf is placed on the Written Statement and that there were triable issues raised which could not be adjudicated at the stage of Order XII Rule 6 of the CPC.
10. Learned Counsel for the Review Petitioner [Respondent No.1] further submits that this is a shared household under Section 29(s) of the Protection of Women from Domestic Violence Act, 2005 [hereinafter referred to as “DV Act”]. Reliance in this behalf is placed on the judgment Satish Chander Ahuja v. Sneha Ahuja[1] to submit that from a reading of the Written Statement, it can be made out that triable issues have been raised. It was further held that these are collusive proceedings between the Petitioner and Respondent Nos. 1 and 2.
11. This Court had examined the Written Statements filed by both Respondent No. 1 as well as Respondent No. 2 as well as that contention of the subject property being a “shared household”. After examining and extracting the relevant portion of the Written Statements filed, this Court gave a finding that since the right of the Respondent No.1 to reside in the suit property stems from the rights of Respondent No. 2 and Respondent NO. 2 and 3 have admitted to the ownership of the Petitioner and stated that they were licensee's/permitted users in the suit property. Thus, at best Respondent No.1 was also a licensee in the suit property of which license has previously been terminated. The ground of collusion as is set out in the plaint is not borne from the facts of the case. 11.[1] This Court examined the registered sale deed placed on record which reflects that the property original belonged to the uncle of the husband of Respondent No.1 and the father of the Petitioner and held that the suit property was the self-acquired property of the father of the Petitioner which was inherited by the Petitioner. It was observed that there are no averments that it was taken on rent by him nor is it a joint family property of a family of which the husband/Respondent No. 2 is a member. It was thus held that it is the exclusive property of the Petitioner and the Respondents were only licensee in the suit property. The Court has in detail dealt with the contentions of Respondent No. 1 as made in her Written Statement as well as in the Petition and other Written Statement as well. The relevant paragraphs of the Order in Review are set out below:
as to whether the suit property is the matrimonial house of Respondent No.1 which can only be ascertained during the trial. Thus, the learned Trial Court dismissed the application under order XII Rule 6 of CPC, filed by the Petitioner.
9. A perusal of the record reflects that it is the case of Respondent No.1 that the suit property was her matrimonial house since after her marriage with Respondent No.2, Respondent No.1 was residing in the suit property. It is further contended that husband of Respondent No. 2 was the co-owner of the suit property thus suit property is her matrimonial house. The relevant extract of the Written Statement is reproduced below: “Preliminary Objections …
7. That without admitting the allegations levelled in the plaint and without prejudice to the rights and defense of the defendant, it is submitted that the defendant got married to Shri Ankit Gupta (cousin brother of the plaintiff) on 01/07/2018 as per Hindu Rites and ceremonies at Delhi. After marriage, the defendant was brought to her matrimonial home i.e. B-82, First Floor, Opp. Sanatan Dharam Mandir, Ganesh Nagar, Janak Puri, New Delhi by her husband and in laws and all of them were residing peacefully therein. The suit property is the matrimonial house of the defendant. Just after the marriage, the husband and in laws of defendant as well as the plaintiff and other family members made the life of defendant a hell and inflicted various physical as well as mental harassment and cruelties upon her during her stay at matrimonial house. The defendant having no option has filed a domestic violence case against her husband and in laws which is pending before the Court of Ms. Sadhika Jalan, Ld. MM. Dwarka Courts, New Delhi. … …The defendant is residing in her matrimonial home and the plaintiff has no right, title or interest in respect of the suit property and the grounds to file the present suit are baseless and vague and the plaintiff has sufficient accommodation for her residence. Hence the suit filed by the plaintiff is liable to be dismissed with heavy cost. Reply on Merits: …
14. That para no.14 of the plaint is false, frivolous, vague and vehemently denied. It is denied that because of bona fide requirement of the suit property, father of the plaintiff during his life time cancelled the license of the family of his deceased brother and asked them to vacate the suit property in a family meeting held on 01.03.2019 in the presence of all the near relatives. It is denied that in the said meeting Ms. Manju Gupta or her son Shri Ankit Gupta requested to the father of the plaintiff to allow them to stay in the suit property till 31/05/2020 meanwhile they will find suitable place for living. It is submitted that the plaintiff has made a concocted story in collusion with in laws and husband of the defendant only with a sole motive to throw out the defendant from the suit property. The husband of defendant is co-owner of the suit property. The contents of preliminary objections of written statement are hereby read as part and parcel and the same are not repeated herein for the sake of brevity. xxx xxx xxx xxx
17. That para no.17 of the plaint is false, frivolous, vague and vehemently denied. It is denied that the plaintiff also approached defendant on 01/06/2021 or requested her to vacate the suit property as the same is immediately bonafidely required for the plaintiff in the presence of the relatives or neighbors or that the defendant deliberately not vacating the suit property. It is denied that the defendant does not have any legal right to live; use or occupation of the suit property as the license of mother-in-law or her husband or of defendant for residing or using the suit property has already been terminated. It is submitted that no such notice for termination has ever been received by the defendant. No notice was ever sent or served upon the defendant by plaintiff. It is submitted that the plaintiff has made a concocted story in collusion with in laws and husband of the defendant only with a sole motive to thrown out the defendant from the suit property. The contents of preliminary objections of written statement are hereby read as part and parcel and the same are not repeated herein for the sake of brevity. [Emphasis Supplied]
10. The Respondent Nos.[2] and 3 have filed their Written Statement wherein it is stated that the entire suit property was owned by late Shri Subhash Gupta, who is the father of the Petitioner/Plaintiff. The Respondent No. 2 & 3 have admitted the fact that the license of Respondent No. 2 &3 for residing and using the suit property was terminated. In addition, it is stated therein that the Respondent Nos.[2] and 3 vacated the suit property on 18.05.2019 and handed over the possession thereof, however, the Respondent No.1 forcibly continued in possession of the property. The relevant extract of the joint Written Statement as filed by Respondent No. 2 & 3 is reproduced below:
property. However, the Defendant No. I forcibly occupied the property.
5. That the Defendant No.2 and the answering defendant vacated the suit property on 18.05.2019 and handed over the possession. xxx xxx xxx
17. That the contents of the para no. 17 is pertained to the defendant no. l. however it is the admitted facts that as the license of mother-in- law and her husband and of defendant for residing and using the suit property has already been terminated.”
11. Concededly, since the right of the Respondent No.1 to reside in the suit property stems from the rights of Respondent No. 2 and Respondent No. 2 and 3 have admitted to the ownership of the Petitioner and stated that they were licensee in the suit property. Thus, at best Respondent No.1 was also a licensee in the suit property, which license has been terminated.
12. The suit property was the self-acquired property of the father of the Petitioner which was inherited by the Petitioner. The suit property is neither owned by Respondent No.2 (husband of Respondent No.1) nor was it taken on rent by him nor is it a joint family property of a family of which the husband/Respondent No. 2 is a member. It is the exclusive property of the Petitioner and the Respondents were only licensee in the suit property. The rights to reside in the suit premises was terminated by the predecessor-in- interest of the Petitioner, during his lifetime in the year
2019. Thereafter, Respondent No.1 continued to reside therein and Respondent Nos.[2] and 3 vacated the property. 12.[1] The Written Statement as filed by Respondent No.2 and 3 reflects that the Respondent Nos 2 and 3 have admitted the fact that the license to reside in the suit property has been terminated and that they are not residing in the suit property since the last several years.” 11.[2] The Court had further held that the defense has been raised that the suit property is a matrimonial house and thus she has the right to reside in the suit property is not borne out from any orders passed by any Family Court. The Court examined the fact and found that in the facts and circumstances of this particular case, this is not a shared household within the meaning of Section 2(s) of the DV Act or a matrimonial household of the Respondent No.1. The relevant paragraphs of the Order in Review are set out below: “13. The only defence as raised by Respondent No.1 is that the suit property is her matrimonial house and thus she has the right to reside in the suit property. The record reflects that proceedings under the DV Act have been initiated by Respondent No.1 against Respondent Nos 2 and
3. It is however not the case of Respondent No.1, that Respondent No.1 has been subjected to domestic violence by the Petitioner. Hence, it cannot be called a “shared household” or “matrimonial house”. 13.[1] In fact, it is the case of the Petitioner that in terms of the family settlement between her and her brothers, the first floor of the suit property has come to the share of the Petitioner. The Petitioner contends that after the death of her parents, she has continued to reside in that portion of the suit property which belonged to her brothers, in view of the fact that her share in the suit property is not being vacated by Respondent No.1. Since license of the Respondents has been terminated the Respondent No.1 has been asked to vacate the suit property by the Petitioner. Thus, the Respondent No.1 can at best be considered as a trespasser in the suit property and is liable to be evicted with the due process of law.
14. It is no longer res integra that where the shared household of a woman is tenanted/allotted/licensed accommodation, the DV Act would not operate against the landlord/lessor/licensor in initiating appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. 14.[1] The Supreme Court has in the case of Satish Chander Ahuja v. Sneha Ahuja[2], held that where the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/allotment/licence is in the name of husband, father-in-law or any other relative, the DV Act does not operate against the landlord/lessor/licensor in initiating appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. It has further been clarified that the embargo under Section 17(2) of the DV Act of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent” i.e. one who is respondent within the meaning of Section 2(q) of the DV Act. The relevant extract of the Satish Chander Ahuja case is reproduced below: “124. Drawing the analogy from the above case, we are of the opinion that the expression “save in accordance with the procedure established by law”, in Section 17(2) of the 2005 Act contemplates the proceedings in the court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a competent court. We may further notice that in subsection (2) the injunction is “shall not be evicted or excluded from the shared household … save in accordance with procedure established by law”. Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household. One most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 subsection (f) itself. There may be cases where the plaintiff can successfully prove before the competent court that the claim of the plaintiff for eviction of the respondent is accepted. We need not ponder for cases and circumstances where the eviction or exclusion can be allowed or refused. It depends on facts of each case for which no further discussion is necessary in the facts of the present case. The High Court in the impugned judgment [Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886] has also expressed opinion that suit filed by the plaintiff cannot be held to be non-maintainable with which conclusion we are in agreement.
125. In case, the shared household of a woman is a tenanted/allotted/ licensed accommodation where tenancy/ allotment/licence is in the name of husband, father-in-law or any other relative, the 2005 Act does not operate against the landlord/lessor/licensor in initiating appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo under Section 17(2) of the 2005 Act of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent” i.e. one who is respondent within the meaning of Section 2(q) of the 2005 Act.” 14.[2] The Supreme Court in the Satish Chander Ahuja case has also held that the law as set down in the S.R. Batra case is not good law.”
12. Learned Counsel for the Review Petitioner [Respondent No.1] fairly concedes that no orders have been passed by any Family Court holding the suit property as a shared household property and that no orders of residence have been passed by the Family Court up to date as well.
13. It is settled law that for a Review Petition to be maintainable, what has to be shown is that there is an error apparent on the face of record. The Review Petitioner [Respondent No.1] has merely reiterated those contentions that are already form part of her Written Statement and which have been dealt with by this Court in the Order in Review.
14. For the reasons as stated above, this Court finds no ground for review of the order dated 15.05.2025. The Review Petition is accordingly disposed of in the aforegoing terms.
TARA VITASTA GANJU, J JULY 15, 2025