Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Ker) 291

IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A.ABDUL HAKHIM, J.
NAVYA KIRAN - Appellant
Versus
K.P.RAJENDRAN - Respondent
RSA NO. 170 OF 2025
Decided On : 13-03-2025

Advocates:
Advocate Appeared:
For the Appellant : RAJESH V.NAIR, R.PARTHASARATHY

IMPORTANT POINT
A suit for mandatory injunction is maintainable against an aggrieved person under the DV Act, as their occupation is permissive and does not confer legal possession.

Headnote:
(A) Protection of Women from Domestic Violence Act, 2005 - Sections 17 and 19 - Suit for mandatory injunction - The plaintiffs, aged parents of the 1st defendant, sought to evict the 2nd defendant, the wife of the 1st defendant, from their property, claiming she trespassed by breaking the lock. The Trial Court decreed the suit, which was upheld by the First Appellate Court. The 2nd defendant claimed legal possession under the DV Act, but the court found her occupation to be permissive, not legal possession. (Paras 2 , 10 , 12 )
(B) Legal possession vs. permissive occupation - The court ruled that the 2nd defendant's residence was based on her status as the daughter-in-law and not on legal possession, thus allowing the suit for mandatory injunction. (Paras 10 , 12 )
Facts of the case:
The plaintiffs owned the property and sought to evict the 2nd defendant, who had broken into the house. The 2nd defendant claimed rights under the DV Act.
Findings of Court:
The court found that the 2nd defendant did not have legal possession and that the suit for mandatory injunction was maintainable.
Issues: Whether the 2nd defendant had legal possession of the property and if a suit for mandatory injunction was appropriate under the DV Act.
Ratio Decidendi: The court held that the 2nd defendant's occupation was permissive and did not confer legal possession, thus allowing the plaintiffs' suit for mandatory injunction.
Result: Regular Second Appeal dismissed, but the 2nd defendant allowed to stay for six months.

JUDGMENT :

1. The 2^nd defendant in a suit for mandatory and prohibitory injunction is the appellant. The Trial Court decreed the suit which was confirmed by the First Appellate Court.

2. The plaintiffs are the husband and wife. They are the aged parents of the 1^st defendant. The 2^nd defendant is the wife of the 1^st defendant. The plaint schedule property and the residential building therein belonged to the plaintiffs as per Ext.A1. Originally, the suit was filed for prohibitory injunction. Thereafter, the suit was amended, including the prayer for mandatory injunction compelling the 2^nd defendant to vacate the house in the plaint schedule property on the ground that the 2^nd defendant trespassed into the plaint schedule property, breaking open the lock of the house.

3. The Trial Court decreed the suit directing the 2^nd defendant to vacate the house in the plaint schedule property by taking all her belongings within one month from the date of the judgment. Further, the defendants are restrained by a decree of permanent prohibitory injunction from trespassing into the house in the plaint schedule property without prior permission of the plaintiffs and committing waste therein.

4. I heard the learned counsel for the appellant Sri. Rajesh V. Nair and the learned counsel for the respondents 1 and 2 Smt.C.Leena.

5. The learned counsel for the appellant contended that the possession of the 2^nd defendant can only be a legal possession as she has a right to reside in the shared household as per Section 17 of the Protection of Women from Domestic Violence Act, 2005. Considering her right to remain in possession, the learned Magistrate passed Ext.B9 Residence Order in favour of the 2nd defendant. It is true that the 2^nd defendant can be evicted from the premises in accordance with the procedure established by law. But since the possession of the 2^nd defendant is that of a legal possession, a suit for mandatory injunction will not lie. The plaintiffs should have filed a suit for recovery of possession. The learned counsel invited my attention to the definition of the respondent in Section 2(q) of the DV Act to substantiate the contention that the respondent mentioned therein will include the 1^st plaintiff also, who is her father-in-law. The learned counsel further contended that there is a clear mandate under Section 19(1)(f) of the DV Act to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same. So only after ensuring such accommodation or payment of rent by the plaintiffs the Court can direct the 2^nd defendant to vacate the plaint schedule building. The learned counsel relied on the decision of this Court in Karunagappally Coir Vyavasaya Co-Operative Society Ltd v. Sankaran Namboothiri Ramachandran Namboothiri, [2025 (1) KLT 487] to substantiate the point that when legal possession is with the defendant, a suit for a mandatory injunction could not be maintainable to evict him.

6. On the other hand, the learned counsel for the contesting respondents contended that the 2^nd defendant does not have a case that the 1^st defendant/her husband is having any right over the plaint schedule property. In view of the Section 17(2) of the DV Act, it is clear that the aggrieved person can be evicted in accordance with the procedure established by law. It is well settled by the decision of the Hon'ble Supreme Court in Archana Goindi Khandelwal v. Rajesh Balkrishnan Menon and Others, [2022 (2) KHC 540] that the dispute between husband and wife under the DV Act shall not preclude and affect the right of the landlord to the possession if otherwise is entitled. The learned counsel also cited the decision of the Hon’ble Supreme Court in Satish Chander Ahuja v. Sneha Ahuja, [2020(5) KHC 496] to substantiate the point that a suit for mandatory injunction is perfectly maintainable against the aggrieved person under the DV Act.

7. I have considered the rival contentions.

8. Even th