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2017 Supreme(P&H) 2328
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RAJ MOHAN SINGH, J.
SUNITA - Appellant
Versus
SAT NARAIN - Respondent
CR No. 4562 of 2017
Decided on : 04-09-2017
Advocate Appeared:
For the Appellant :Mr. V.K. Rana, Advocate.
For the Respondent:Mr. Malkeet Singh, Advocate.
The main legal point established in the judgment is the interpretation of the concept of a shared household and the application of Order 1 Rule 10 CPC in the context of impleading a minor child in the proceedings.
Headnote:
shared household - Mandatory Injunction - Order 1 Rule 10 CPC, S.R. Batra v. Smt. Taruna Batra (2007) 3 SCC 169, Hamina Kang v. District Magistrate (U.T.) Chandigarh, 2016 (1)RCR (Civil) 976, Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, 2008 (2) RCR (Criminal) 699
Fact of the Case:
The respondent filed a suit for mandatory injunction to obtain vacant possession of a portion of a house. The suit was decreed, and the defendant's appeal was dismissed. The respondent then filed for execution of the decree, which was objected to by the defendant on the grounds of non-impleadment of a minor child.
Finding of the Court:
The court found that the house in question did not qualify as a shared household, as per the legal precedents. The objection regarding the non-impleadment of the minor child was dismissed by the trial court and upheld by the appellate court.
Issues: The main issues were the claim of right of residence in the shared household and the objection regarding non-impleadment of the minor child.
Ratio Decidendi: The court relied on the legal position established in S.R. Batra v. Smt. Taruna Batra and subsequent cases to determine that the house in question did not qualify as a shared household. The objection regarding non-impleadment of the minor child was dismissed based on the trial court's previous ruling.
Final Decision: The revision petition was dismissed as it was found to be bereft of merits.
RAJ MOHAN SINGH, J.
1. In this revision petition, petitioners have assailed the order dated 09.05.2017 passed by Additional District Judge, Jalandhar vide which appeal filed by the present petitioners was dismissed against the order dated 20.05.2015 passed by Civil Judge (Junior Division), Jalandhar, dismissing the objections filed by the petitioners.
2. A suit for mandatory injunction filed by the respondent directing the defendant-petitioner No. 1 to deliver the vacant possession of the portion of the house was decreed vide judgment and decree dated 25.09.2014 with costs and the defendant-petitioner No. 1 was directed to hand over the vacant possession of the suit property within two months from the date of passing of the judgment and decree by the trial Court, failing which liberty was given to the plaintiff-respondent to take possession of the property by means of execution.
3. Defendant-petitioner No. 1 unsuccessfully challenged the aforesaid judgment and decree in appeal and the same was dismissed vide judgment and decree dated 25.02.2016 passed by Additional District Judge, Jalandhar. Thereafter, execution was filed by the decree holder-respondent against the defendant-petitioner No. 1 for taking possession by way of warrants of possession of the suit property.
4. In the execution proceedings, objections were filed by the defendant-petitioner No. 1 for herself and on behalf of her minor child namely Nitin Kumar. The said objections were dismissed by the Executing Court vide order dated 20.05.2015. The only objection taken by the judgment debtor was that the minor child of Dharminder was not made party to the suit proceedings and the execution was liable to be dismissed on the ground of mis-joinder and non-joinder of necessary parties. The objections were dismissed by the Executing Court and the said order was upheld in appeal by the Additional District Judge, Jalandhar on 09.05.2017.
5. It has come on record that the plaintiff-respondent had purchased the plot in question in the year 1997 and thereafter, constructed three rooms, kitchen, store, verandah and toilet by availing loan facility from the Bank.
6. Defendant-petitioner No. 1 was married to the son of the respondent namely Dharminder Singh, who died on 09.10.2009. At that time, defendant-petitioner No. 1 along with her husband was living separately in the village. In the year 2005, son of the petitioner requested the respondent-father to give one room and kitchen in the self-acquired house. The respondent accommodated his son. Electricity meter and another documents remained in the name of the respondent throughout. Husband of the defendant-petitioner No. 1 was accommodated only as licencee.
7. After the death of Dharminder Singh on 09.10.2009, defendant-petitioner No. 1 broke open the locks of the room and forcibly occupied the same. A complaint was made to the police and thereafter, legal notice was issued to defendant-petitioner No. 1 on 28.10.2010.
8. During the suit proceedings, an application was filed by the defendant-petitioner No. 1 under Order 1 Rule 10 CPC for impleading the minor as a party to the proceedings but the said application was dismissed by the trial Court on 10.09.2014 and the said order was never assailed by the defendant-petitioner No. 1 in any forum and the same became final between the parties. Thereafter, suit was decreed on 25.09.2014 and the said decree was maintained by the lower Appellate Court on 25.02.2016.
9. The execution came to be filed during pendency of the first appeal before the lower Appellate Court. The only objection of the defendant-petitioner No. 1 was that the minor child was not made party and therefore, judgment and decree was not executable. Even the Executing Court wrote a separate request to the District and Sessions Judge, Jalandhar for providing police help for executing the judgment and decree.
10. The Hon'ble Apex Court in S.R. Batra v. Smt. Taruna Batra, (2007) 3 SCC 169 held that the wife could claim rig
