IMPORTANT POINT
Proceedings under the Domestic Violence Act cannot act as an embargo in civil proceedings.

JUDGMENT

Manmeet Pritam Singh Arora, J. - This Petition filed under Article 227 of the Constitution of India impugns the order dated 14.10.2023 passed by ADJ-05, South West District, Dwarka Courts, New Delhi ('Trial Court') in CS No. 673/2019, titled as Rani Jain v. Rishabh Jain & Anr., whereby the Trial Court dismissed an application filed under Section 151 of the Code of Civil Procedure, 1908 ('CPC') by the defendant no.3 i.e., the Petitioner herein seeking dismissal of the partition suit on the ground of concealment by the plaintiff i.e., Respondent No.1.

1.1. The Petitioner herein is the defendant no.3. The Respondent No.1 is the plaintiff. Respondent Nos.2 and 3 are defendant nos.1 and 2 respectively before the Trial Court.

1.2. The plaintiff i.e., Respondent No.1 has filed a partition suit on 09.08.2019 seeking partition of the property bearing no. 237, Atulya Apartments, Sector 18-B, Dwarka, New Delhi ('suit property').

1.3. The Petitioner herein filed an application under Section 151 CPC on 08.09.2020 seeking dismissal of the partition suit on the ground of concealment by the plaintiff of the orders passed by the MM ('Mahila Court), Dwarka Courts ('DV Court'), in CC No. 45524/2016 ('DV Proceedings') initiated by the Petitioner herein. Thereafter, the Petitioner filed another application under Section 151 CPC dated 06.10.2022 seeking disposal of the earlier application filed on 08.09.2020.

1.4. The Trial Court vide order dated 14.10.2023 after allowing the application for early hearing, dismissed the Section 151 CPC application dated 08.09.2020 seeking dismissal of the partition suit.

2. The Petitioner herein i.e., defendant no.3 who appears in person states that the Trial Court in the impugned order has referred to the order dated 18.03.2013 passed by DV Court restraining the Respondents from not dispossessing the defendant no.3 from the suit property without due process of law.

2.1 She states that the Trial Court failed to appreciate that the defendant no.3 was relying upon the orders dated 17.12.2016, 28.02.2017 and 27.07.2017 whereby DV Court had restrained the Respondents herein i.e., plaintiff and defendant nos. 1 and 2 from (i) dispossessing the Petitioner from the suit property; and (ii) also restrained them from visiting the suit property.

2.2 She states that the said orders of the D.V. Court restraining the Respondents from visiting the suit property, though interim in nature are in subsistence.

2.3 She states that the consequence of these restraint orders is that Respondent No.1 i.e., the plaintiff is not in actual or constructive possession of the suit property. She states that since the plaintiff is not in actual or constructive possession of the suit property, the suit for partition is not maintainable, as no separate relief for recovery of possession has been sought for in this partition suit.

2.4 She states that a plaintiff is not entitled to maintain the suit for partition unless he/she has actual or constructive possession of the suit property. In this regard, she placed reliance on the decisions pronounced by Patna High Court in Mukha Singh & Ors. v. Ramchariter Singh & Ors., 1955 SCC OnLine Pat 74, Mysore High Court in M.L. Sreenivasa Rao v. Harinath Upadyaya & Ors., 1971 SCC OnLine Kar 20, Calcutta High Court in Babu Lokenath Singh v. Babu Dhwakeshwar, AIR 1915 Cal 357, Kerala High Court in Ummer v. Sainuddin & Ors., 1959 KLJ 65 and Delhi High Court in Harphool Singh v. Daropati & Ors, 2011 SCC OnLine Del 957 (Reversed in Daropti v. Harphool Singh,(2013) 10 SCC622.

2.5 She states that the suit has been instituted on 09.08.2019 without disclosing the proceedings initiated by defendant no.3 under the Domestic Violence Act, 2005, the orders passed therein and in view of this suppression, the plaint ought to have been dismissed.

2.6 She states that the defendant no.3 disputes that the plaintiff along with defendant no.1 and defendant no.2 is a co-owner of the suit property. In this regard, she states that it is a m