9911796707
TMI Blog2017 (5) TMI 1726X X X X Extracts X X X X X X X X Extracts X X X X ..... able Under Section 18 to 22 of Act, 2005, thus, can also be sought by the aggrieved person. When the suit filed by the Plaintiff for determination or enforcement of his right as a licensor can be taken cognizance by Judge, Small Causes Court we fail to see that why the relief claimed by the Appellant in the Court of Small Causes within the meaning of Section 26 of Act. 2005 cannot be considered by the Judge, Small Causes Court. In facts of the present case, the bar and embargo under Item No. 11 of Schedule II read with Section 15 of Act, 1887 stand whittled down and engulfed by virtue of Section 26 Sub-section (1) as applicable in Maharashtra. Section 26 of the Act, 2005 has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by Act, 2005 is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court - When the proceeding initiated by Plaintiff in the Judge, Small Causes Court alleged termination of gratuitous licence of the Appellant and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent by the Society in the year 1971. On 13th June, 2011, the husband of Appellant left her at the suit flat and shifted to live with his parent at Mrutunjay Society. A daughter, namely, Ishwari was born from the wedlock of the Appellant and the Abhimanyu, who was about 9 years in the year 2014. The Respondent along with his wife had been residing in another flat nearby. The Appellant was treated with cruelty by her husband and other members of the family. A suit for divorce on the basis of cruelty being P.A. No. 23/2011 was filed by the Appellant against her husband. A notice was sent on behalf of the Respondent to the Appellant on 23.01.2013 revoking the gratuitous licence and asking the Appellant to stop the use and occupation of the suit flat. The Appellant replied the notice. The Respondent filed Suit No. 77/2013 in the Small Causes Court, Pune seeking for following reliefs: A. By an order of mandatory injunction the Defendant may be directed to stop the use and occupation of the suit flat and remove her belongings therefrom. B. The Defendant may be restrained by an order of perpetual prohibitory injunction from using/occupying the suit flat. C. The Defendant may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit has filed an application dated 14.07.2014 Under Section 9A (Maharashtra Amendment) of the Code of Civil Procedure, 1908. In the application, the Respondent claimed that declaration sought by the Appellant in the suit is not maintainable, hence, a preliminary issue Under Section 9A of Code of Civil Procedure be framed. The application was objected by the Appellant by filing objection on 16.08.2014. The Appellant claimed that since she has been subjected to domestic violence she is entitled for the reliefs sought by way of counter claim as provided in the Act, 2005. It was contended that the reliefs sought by way of counter claim are not barred as per Section 15 of Act, 1887. The trial court framed preliminary issue as to whether the Court has jurisdiction to entertain the counter claim . Judge Small Causes Court by its judgment and order dated 05.11.2014 held that Court has no jurisdiction to entertain the counter claim. Revision was filed against the order passed by the Small Causes Court before the District Judge. The District Judge rejected the revision on 17.12.2015 which order was challenged by the Appellant by means of writ petition which has been dismissed by judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovincial Small Cause Court. Learned Counsel further made reference to Section 12 and Section 18 of Act, 1887 by which, according to him, the Registrar, who is a Chief Ministerial Officer of the Court, is empowered to try certain suits which the Judge, Provincial Small Cause Court by general or special order directs. He submits that power given to Registrar to decide certain issues also militate against the idea that substantive issues can be decided by a Judge, Small Causes Court. 11. Learned Counsel for the parties relied on various decisions of this Court and Bombay High Court which shall be referred to while considering submissions in detail. 12. We have considered the above submissions of the parties and perused the record. 13. As noted above, the only question to be answered in this appeal is as to whether the counter claim filed by the Appellant seeking right of residence in accordance with Section 19 of Act, 2005 in a suit filed by the Respondent, her father-in-law under the Provincial Small Cause Courts Act, 1887 is entertainable or not. Whether the provisions of the Act, 1887 bar entertainment of such counter claim, is the moot question to be answered. The Provinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11) of the Second Schedule of P.S.C.C. Act which is one of the excepted categories does not empower the Small Causes Court to entertain and try the suit for the determination or enforcement of any other right to or interest in immovable property. In the counter claim the Defendant has prayed for residence orders as provided in Section 19 of D.V. Act as also for declaration that the suit flat is the shared household as per Section 2(s) of D.V. Act and also for injunction restraining the Plaintiff (i) from dispossessing her from the suit fiat and disturbing her possession in any manner in the suit flat, (ii) from entering suit flat, and (iii) from creating third party interest as per Section 19 of D.V. Act. It is not in dispute and cannot be disputed that the counter claim is to be tried as a suit. The Defendant seeks determination or enforcement of her right or interest in the suit flat i.e. immovable property. In view thereof, counter claim set up by the Defendant cannot gone into by the Small Causes Court in view of express language of Section 15 and Second Schedule of P.S.C.C. Act. If the contention of Mr. Kulkarni is accepted, it will enlarge the jurisdiction of Small Causes Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dress this phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence Under Section 498A of the Indian Penal Code. In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society the Protection of Women from Domestic Violence Bill was introduced in Parliament. Statement of Objects and Reasons 1. Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family. * * * 3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below: 26. Relief in other suits and legal proceedings.- (1) Any relief available Under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the Respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. 20. There cannot be any dispute that proceeding before the Judge, Small Causes Court is a legal proceeding and the Judge, Small Causes Court is a civil court. On the strength of Section 26 any relief available Under Section 18 to 22 of Act, 2005, thus, can also be sought by the aggrieved person. 21. Order VIII Rule 6A provides for counter claim by Defendant. Order VIII Rule 6A of Code of Civil Procedure is quoted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd licence fees or rent, except those to which other Acts apply, to lie in Court of Small Causes.-- (1) Notwithstanding anything contained elsewhere in this Act, but subject to the provision of Sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between in licensor and licensee, or a landlord and tenants, relating to the recovery of possession of any immovable property situated in the area within the local limits of the jurisdiction of the Court of Small Causes, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings. (2) Nothing contained in Sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Provincial Municipal Corporations Act, 1919 or the Maharashtra Housing and Area Development Act, 1976, or any law for the time being in force, apply. 26. Section 26 Sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or enforcement of any such right or interest in immovable property. But by virtue of Section 26 Sub-section (1) as applicable in State of Maharashtra, Item No. 11 of Schedule 2 has to give way to Section 26(1) and a suit between licensor and licensee which is virtually a suit for recovery of immovable property is fully maintainable in Judge, Small Causes Court that is why the suit has been instituted by the Plaintiff in the Judge, Small Causes Court claiming the right and interest in the immovable property. 30. When the suit filed by the Plaintiff for determination or enforcement of his right as a licensor can be taken cognizance by Judge, Small Causes Court we fail to see that why the relief claimed by the Appellant in the Court of Small Causes within the meaning of Section 26 of Act. 2005 cannot be considered by the Judge, Small Causes Court. In facts of the present case, the bar and embargo under Item No. 11 of Schedule II read with Section 15 of Act, 1887 stand whittled down and engulfed by virtue of Section 26 Sub-section (1) as applicable in Maharashtra. 31. A statutory provision containing non obstante Clause has to be given full effect. This Court in Union of India an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides a general Act and when a conflict is found in two special Acts, the special Act latter in point of time has to prevail. He further contends that dominant purpose of the Act has to be looked into while deciding the question as to which of the Act shall prevail over other. In the facts of the present case especially Section 26 as inserted in the State of Maharashtra by Maharashtra Act 24 of 1984, it is not necessary to enter into the issue of conflict between Act, 1887 and Act, 2005. We have already observed above that the suit in the nature of present suit was cognizable before the Judge, Small Causes Court, hence, in the said suit determination of claim of the Appellant seeking a right of residence Under Section 19 is also not excluded from consideration. It is further to be noted that Act, 2005 was enacted to secure a social purpose. The provisions of the Act have to be construed widely. This Court in Hiral P. Harsora and Ors. v. Kusum Narottamdas Harsora and Ors. 2016 (10) SCC 165 had occasion to consider the ambit and scope of Act, 2005. In paragraph 25 following has been stated by this Court: 25. When we come to Section 26 of the Act, the sweep of the Act is such that a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
