2020 Supreme(All) 612

IN THE HIGH COURT OF ALLAHABAD
Vivek Kumar Birla, J.
Sujata Gandhi – Appellant
Versus
S.B. Gandhi – Respondent
Second Appeal No. 1079 of 2019
Decided On : 12-06-2020

Point of law:
The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (‘Code’ for short), which provides for impleadment of proper or necessary parties.

Headnote:

UP Zamindari Abolition and Land Reforms Act, 1950 – Section 176 (i) – Code of Civil Procedure, 1908 – Order 1 Rule 3, 9, 10 – Constitution of India, 1950 – Articles 226, 227 – Protection of Women from Domestic Violence Act, 2005 – Section 2 (s), Section 17 and Section 26 – Domestic Violence – Matrimonial Dispute –Eviction – Case of defendant is that she never left the matrimonial house and is continuously living in the same – Present appeal has been filed for setting aside judgment and decree passed by Additional District Judge, Court No. 13, in Civil Appeal and judgment and decree passed by Civil Judge (S.D.), in Original Suit – Held, To say that appellant daughter-in-law cannot be evicted without seeking decree of eviction against son with whom she had moved on 1st floor of the suit property after marriage of son of plaintiff with the appellant, would be a futile relief claimed against son who is not residing in house in question, therefore, cannot be granted by the court – It would be even more unfortunate that under such circumstances parents are compelled to seek decree of eviction against son when real relief is, in fact, being sought against daughter-in-law who has made life of in-laws miserable – Appellant daughter-in-law can be evicted without seeking decree of eviction against son with whom she had moved on 1st floor of suit property after marriage of son of plaintiff with appellant – Appeal Dismissed (Paras 39, 40, 41, 42)

Fact of the case :

Appeal has been filed for setting aside the judgment and decree dated 19.9.2019 and 23.9.2019 passed by the Additional District Judge, Court No. 13, Ghaziabad in Civil Appeal No. 63 of 2017 (Sujata Gandhi vs. S.B. Gandhi) and judgment and decree dated 8.3.2017 and 22.3.2017 passed by Civil Judge (S.D.), Ghaziabad in Original Suit No. 907 of 2014 (S.B. Gandhi vs. Smt. Sujata Gandhi). Necessary facts shorn of details are that the appellant was married with the plaintiff's son namely, Vijay Gandhi on 29.4.1998 and two children born out of this wedlock. In the year 2013 Vijay Gandhi, son of the plaintiff deserted the appellant and thereafter filed a divorce petition under section 13 of the Hindu Marriage Act. One NCR/FIR was lodged at police station Link Road, Ghaziabad by the plaintiff against the appellant. According to the plaint case the plaintiff is owner of House Number A-242, Surya Nagar, Ghaziabad. After marriage of his son he permitted his son and the defendant to live on the first floor of his house. It is alleged that he is old and his wife is also old and is handicapped. The defendant started harassing the plaintiff and his wife. Under such circumstances the plaintiff asked his son to vacate the house along with the defendant. His son Vijay Gandhi left the suit property and started living somewhere else with the defendant, however, after sometime she came back and forcibly occupied the suit property and thereafter the defendant refused to vacate the house. As such, the suit for eviction of the defendant was filed. The case of the defendant is that she never left the matrimonial house and is continuously living in the same.

Finding of the Court :

To say that appellant daughter-in-law cannot be evicted without seeking decree of eviction against son with whom she had moved on 1st floor of the suit property after marriage of son of plaintiff with the appellant, would be a futile relief claimed against son who is not residing in house in question, therefore, cannot be granted by the court – It would be even more unfortunate that under such circumstances parents are compelled to seek decree of eviction against son when real relief is, in fact, being sought against daughter-in-law who has made life of in-laws miserable – Appellant daughter-in-law can be evicted without seeking decree of eviction against son with whom she had moved on 1st floor of suit property after marriage of son of plaintiff with appellant.

Result: Appeal dismissed