Top News Headlines 5th Mar 2022: Cases Must Be Decided On The Touchstone Of Statutes And Constitutional Morality And Not On Basis Of Public Morality

Cases Must Be Decided On The Touchstone Of Statutes And Constitutional Morality And Not On Basis Of Public Morality: Rajasthan HC While Dismissing Petition For Eviction Of Children From The Parents’ House

• The Hon’ble High Court of Rajasthan (HC) in Vinod Sharma v Smt. Shanti Devi & Ors, observed that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Sr. Citizens Act) does not envisage an order of eviction neither by the District Magistrate nor the Tribunal.  
• Appeal before the HC arose due to the direction of the Tribunal relating to the eviction of the Petitioner and Respondents 3 & 4 who had been residing in the house of the Respondents.  
• The question before the HC was whether pursuant to an application filed under Section 5 of the Sr. Citizens Act, read with Rajasthan Maintenance of Parents and Senior Citizens Rules, 2010 (the Rules), can an order of eviction be passed by the Tribunal constituted under the Sr. Citizens Act.  
• Brief facts are that the Respondents, aged parents, filed an application under Section 5(A)(B) of the Sr. Citizens Act alleging that their children (Petitioners) are neither taking their care nor maintaining them.  The application also sought eviction of the Petitioners from residential house.  
• The contention of the Petitioner was that, the Respondents, despite having sufficient means to meet their ends, filed the instant petition with an intention to only harass the Petitioners and that the impugned order to the extent of forceful eviction of the Petitioner is illegal and fundamentally without jurisdiction.  
• The Petitioner argued that unless there were pleadings asserting execution of a gift-deed and consequent transfer of property, the Tribunal cannot assume jurisdiction and issue an order of eviction.
• Hearing the contention of both the sides and examining various precedents, the Court observed that Section 4 and 5 of the Sr. Citizens Act were meant to ensure that senior citizens were provided with sufficient mean to live with dignity and by no means, direct or indirect, do the provisions refer to eviction or contemplate any such order by the Tribunal.  
• The Court also observed that the eviction order could not be passed by taking a re-course under Rule 20 of the Rules as the Rules only provide for ensuring the protection of life and property of the senior citizen and ensuring they’re able to live a dignified life.  
• Further, the Rules provide for protection of life and property of a senior citizen where there is a danger to such life and property and does not make any provision for eviction.  The Rules do not translate to evicting children from the property who lived in the shared household out of an earlier natural bonding.   
• Analysing Rule 20, the Court opined that the Tribunal is not vested with the power of passing an eviction order.  It has usurped its purported powers and thus, the order is fundamentally void and without jurisdiction.  
• Even in terms of Section 23 of the Act which provides for invalidating the transfer of property in case the children fail to maintain the parents, the petitioner cannot be called upon to vacate the premises.  
• The Court also observed that Court should decide cases on the touchstone of statutes and constitutional morality and must not be guided by public or popular morality alone.  It remarked that societal expectations and obligations cannot be enforced or ordained by the Court unless expressly provided by the law.  

Plaintiff May File Application Under Order 20 Rule 6A r/w Section 151 When Decree Has Not Been Drawn Up: Meghalaya HC

• The Hon’ble Meghalaya HC has, in the case of Shri Delican Shadap and anr. vs. Smt. Nongtri and anr. held that an application for execution can be filed under Order 20 rule 6A of CPC in cases where a case has been finally disposed of but the decree has not yet been drawn up.
• In the instant case, a suit for title was instituted by the plaintiff/petitioners in the Court of Deputy Commissioner, Nongpoh. During the course of the proceedings, a compromise was entered into between the parties and a compromise petition was filed before the lower Court and the entire suit was disposed of by an order on 4 July, 2016.
• Due to the non-compliance by the respondents of the terms of the compromise, the petitioners filed an application before the trial Court for the execution of the compromise deed, which was granted by the Court and the bailiff was appointed as a mediator to conduct a local inspection and make measurements of the respective lands of the parties and file a report. 
• The respondents filed an application contesting the execution of the aforementioned compromise order on the ground that no decree was drawn up in terms of the compromise agreement, which was agreed to by the Court. It was ordered that the parties resolve their dispute on their own. 
• Aggrieved, the petitioners filed a revision petition before the HC. 
• The Counsel for the petitioners relied upon the decision of the Hon’ble Apex Court in the case of Satnam Singh and ors. vs. Surender Kaur and ors wherein it was held that to decide whether the case has been completely disposed of, the following five criteria have to be satisfied: 

a)    There should be an adjudication;
b)     It should be given in a suit;
c)     Adjudication must have determined the rights of the parties with regard to all the matters in controversy;
d)     This determination must be conclusive in nature;
e)     There must be a formal expression of this adjudication. 

• The petitioner had thus argued that in this case, all the five conditions had been satisfied, the terms of the compromise were detailed and were signed by both the parties. It was also pleaded that the Court had to move ex parte against the respondents since they failed to appear before the Court even after repeated summons. 
• The Hon’ble HC relied upon the decision of the Hon’ble Apex Court in the case of Sir Sobha Singh and Sons Pvt. Ltd. vs. Shashi Mohan Kapur (deceased), where the Court had held that an execution application can be filed without a certified copy of the decree. The Court had also observed that as long as an official decree had not been drawn up, the order had to be treated as a decree as is enshrined in Order 20 Rule 6A(2) of CPC.
• It is noteworthy to mention here that Order 20 Rule 6A(2) of CPC states that till the time the official decree has not been drawn up, the order of the Court would be treated as a decree, for the purpose of execution or for any other purpose. 
• Thus, the impugned order of the lower Court was set aside and the Executing Court was ordered to draw up the decree in terms of the compromise which was entered into by the parties. 

Suit For Permanent Injunction Against The True Owner Shall Not Stand Where The Dispute Has Been Steeled Against The Plaintiff: SC

• The Hon’ble Supreme Court, in Padhiyar Prahladji Chenaji v Maniben Jagmalbhai, quashing the impugned order passed by the High Court of Gujarat has held that permanent injunction in favour of the plaintiff cannot be granted against the true owner of the property.  
• The Trial Court has passed an order refusing to grant the relief of cancellation of the sale deed.  On appeal, the High Court, affirming the order of the Tribunal, held that the Trial Court was justified in granting the permanent injunction in favour of the original petitioner (ie Defendant in the instant appeal).   
• Aggrieved by the impugned order, the Plaintiff preferred the instant appeal. 
• The Question before the Court was whether the plaintiff was entitled permanent injunction against the true owner when the plaintiff has lost so far as the title is concerned when the true owner has to file a substantive suit claiming the possession.  
• The Defendant’s husband, an alcoholic, sold a part of his property to the Plaintiff (1 acre).  However, the Defendant has contended that the Plaintiff fraudulently got the sale deed registered of the entire suit property (~6 acres).  She submitted that the Plaintiff handed over possession of only 1 acre and remined in possession of the remaining property.  
• The Court remarked that since the Plaintiff’s prayer was for cancellation of the sale deed, the prayer of permanent injunction Is only a consequential relief and not a substantive relief.
• Allowing the appeal, the Court observed that once a suit is barred by limitation, and where the relief for permanent injunction was a consequential relief, such relief can also said to be barred by limitation.  However, in the case of a consequential relief, when the substantive relief of declaration is held to be barred by limitation, the said principle shall not apply.  
• The Court further observed that when the dispute as regards title was settled and held against the plaintiff, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner.  In such cases the plaintiff shall not be able to contend that despite having lost the case, the true owner shall be restrained from disturbing the former’s possession.  
• The Court also remarked that a relief seeking injunction is a consequential relief and a suit for declaration with a consequential relief, is not a suit for declaration simpliciter, it is a suit for declaration with a further relief.  
• Allowing the appeal, the Court held that injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.