# Smt. Sujata Gandhi v. Sh. S.B. Gandhi

- **Citation:** (2020) 7 ILRA 213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-12
- **Case number:** Second Appeal No. 1079 of 2019
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sujata-gandhi-v-sh-s-b-gandhi-45868
- **Pages:** 22

## Headnote

Civil Law - Substantial Question of law -
Domestic Violence Act, 2005: Sections
2(s), 17, 26 - CPC: Order 1 Rules 3,9 and
10 - It is a settled law that a substantial
question of law arises only out of
pleadings and judgments of the lower
court. In the present case, there was no
pleadings with respect to the impleadment of
husband as a necessary defendant or even a
party to the suit for the for seeking decree of
eviction filed against the daughter-in-law.
Even in appeal before the lower appellate
court, this ground was not taken. (Para 16)

(a) Words & Phrases - Shared Household
- After considering the definition of shared
household as provided under Section 2(s) of
the Act, 2005 the appellant daughter-in-law
can be evicted without seeking decree of
eviction against son with whom she had
moved on 1st floor of the suit property after
marriage of the son of the plaintiff with the
appellant. (Para 38)

(b) The Court observed that the property did
not belong to husband Amit Batra nor it was a
joint family property of which Amit Batra is a
member. It is exclusive property of mother
(plaintiff),
hence
cannot
be
a
'shared
household'. (Para 25)
The Court under similar circumstances
where son, husband of the defendant has
left
the
house
and
started
residing
somewhere else, had held the status of
defendant being that of a licensee she had
no right to reside in the house after
cancellation of the license. Therefore, the
house in question cannot be treated a
shared household. (Para 35)

(c) Impleadment of parties - Joinder &
Non-Joinder of Necessary Parties -
CPC: Order 1 Rule 10(2) The plaintiff in
a suit being dominus litis, may choose
the person against whom he wishes to
litigate and cannot be compelled to sue
a person against whom he does not
seek any relief. (Para 20)

It is only under the provision of Rule 10 (2)
a discretion is exercised by the court either
on application of either of the parties or suo
moto if it deems fit that any party is a
necessary or proper part to the suit. Thus,
in a suit for eviction or injunction, it is the
discretion of the plaintiff to choose the
person against whom he does not seek any
relief. (Para 24)

Second Appeal Rejected. (E-10)

List of cases cited:-

## Text

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7 All. Smt. Sujata Gandhi Vs. Sh. S.B. Gandhi
213
(2020)07ILR A213
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.06.2020

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Second Appeal No. 1079 of 2019

Smt. Sujata Gandhi ...Appellant
Versus
Sh. S.B. Gandhi ...Respondent

Counsel for the Appellant:
Sri T. Islam, Sri Jatin Sahgal

Counsel for the Respondent:
Sri Anil Kumar Srivastava, Sri J.B. Singh

Civil Law - Substantial Question of law -
Domestic Violence Act, 2005: Sections
2(s), 17, 26 - CPC: Order 1 Rules 3,9 and
10 - It is a settled law that a substantial
question of law arises only out of
pleadings and judgments of the lower
court. In the present case, there was no
pleadings with respect to the impleadment of
husband as a necessary defendant or even a
party to the suit for the for seeking decree of
eviction filed against the daughter-in-law.
Even in appeal before the lower appellate
court, this ground was not taken. (Para 16)

(a) Words & Phrases - Shared Household
- After considering the definition of shared
household as provided under Section 2(s) of
the Act, 2005 the appellant daughter-in-law
can be evicted without seeking decree of
eviction against son with whom she had
moved on 1st floor of the suit property after
marriage of the son of the plaintiff with the
appellant. (Para 38)

(b) The Court observed that the property did
not belong to husband Amit Batra nor it was a
joint family property of which Amit Batra is a
member. It is exclusive property of mother
(plaintiff),
hence
cannot
be
a
'shared
household'. (Para 25)
The Court under similar circumstances
where son, husband of the defendant has
left
the
house
and
started
residing
somewhere else, had held the status of
defendant being that of a licensee she had
no right to reside in the house after
cancellation of the license. Therefore, the
house in question cannot be treated a
shared household. (Para 35)

(c) Impleadment of parties - Joinder &
Non-Joinder of Necessary Parties -
CPC: Order 1 Rule 10(2) The plaintiff in
a suit being dominus litis, may choose
the person against whom he wishes to
litigate and cannot be compelled to sue
a person against whom he does not
seek any relief. (Para 20)

It is only under the provision of Rule 10 (2)
a discretion is exercised by the court either
on application of either of the parties or suo
moto if it deems fit that any party is a
necessary or proper part to the suit. Thus,
in a suit for eviction or injunction, it is the
discretion of the plaintiff to choose the
person against whom he does not seek any
relief. (Para 24)

Second Appeal Rejected. (E-10)

List of cases cited:-

1. Kavita Gambhir Vs Hari Chand Gambhir and
another (2009) 162 DLT 459 (distinguished)

2. Neetu Rana Vs St. of U.P. (2016) 94 ACC 408
(distinguished)

3. Nishant Sharma Vs St. of U.P. 2012 (78) ACC
328 (distinguished)

4. Subhash . & ors. Vs Shivani 2016 (4) RCR
(Civil) 21

5. Prabhakaran S. Vs St. of Kerala 2009 (1) KLJ
278

6. Roma Rajesh Tiwari Vs Rajesh Dinanath
Tiwari Writ Petition No. 10696 of 2017

7. Preeti Satija Vs Raj Kumari AIR 2014 Delhi 46
214 INDIAN LAW REPORTS ALLAHABAD SERIES
8. B.P. Achala Anand Vs Appi Reddy & anr.
(2005) 3 SCC 313 (distinguished)

9. Harbans Lal Mailik Vs Payal ILR 2010 (6)
Delhi 625

10. S.R. Batra Vs Taruna Batra (2007) 3 SCC
169 (followed)

11. Virendra kumar & anr. Vs Jaswant Rai &
anr. RSA No. 46 of 2011

12. Kanhaiya Lal & anr. Vs Nathi Lal RSA No. 27
of 2017

13. Shumita Didi Sandhu Vs Snajay Singh
Sandhu & ors. 2007 (96) DRJ 697

14. Arikala Narasa Reddy Vs Venkata Ram
Reddy Reddygari (2014) 5 SCC 312

15. Sri Chunnilal Vs Meta Sons Ltd. Vs Century
Spinning and Manufacturing Company Ltd. AIR
1962 SC 1314

16. Mumbai International Airport Private
Limited Vs Regency Convention Centre and
Hotels Private Limited and ors. 2010 (7) SCC
417

17. Singh Bhatia Vs Kiran Kant Robinson & ors.
2019 AIR (SC) 3577

18. Kasturi Vs Uyyamperumal (2005) 6 SCC 733

19. Gurmit Singh Bhatia Vs Kiran Kant Robinson
& ors. 2020 (1) ARC 381

20. Girish Kumar Vs St. of Mah. (2019) 6 SCC
647

21. Pamm Development (Pvt.) Ltd. Vs St. of
W.B. (2019) 8 SCC 112

22. B.P. Achala Anand Vs S Appi Reddy & anr.
(2005) 3 SCC 313

23. Vimlaben Ajitbhai Patel Vs Vatslaben
Ashokbhai Petal and ors. (2008) 4 SCC 649

24. Richa Gaur Vs Kamal Kishore Gaur 2020 (1)
AWC 667

25. Vaishali Abhimanyu Joshu Vs Nanashaib
Gopal Joshi (2017) 14 SCC 373 (distinguished)

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Jatin Sahgal, learned
counsel for the appellant and Sri J.B.
Singh, learned counsel for the respondent.

2. The present 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).

3. 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
7 All. Smt. Sujata Gandhi Vs. Sh. S.B. Gandhi
215
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.

4. I have heard learned counsel for the
parties at length.

5. I find that the arguments of learned
counsels
for
the
parties
have
been
appropriately noted in the order dated
19.11.2019 when the appeal was admitted
and substantial question of law was framed
by this court, which is quoted as under;
respondents.

This second appeal has been filed
under section 100 of CPC being aggrieved
by judgment and decree dated 19.9.2019
and
23.9.2019
passed
by Additional
District Judge, Court No. 13, Ghaziabad in
Civil Appeal No. 63 of 2017, Sujata
Gandhi Vs. S.B. Gandhi, affirming the
judgment and decree passed by the Civil
Judge (S.D.), Ghaziabad in OS No. 907 of
2014, S.B. Gandhi Vs. Sujata Gandhi on
8.3.2017 asking the present appellantdefendant before the Trial Court to evict
the suit property situated at A-242, Surya
Nagar, Ghaziabad.

Counsel for the appellant submits
that it is an admitted position that father-inlaw of the present appellant namely S.B.
Gandhi filed a suit without impleading his
son Vijay Gandhi as party. It is submitted
that appellant's marriage was solemnized
with the plaintiff's son namely Vijay
Gandhi on 29.4.1998 and two children born
out of this wedlock on 23.4.2004 and
8.3.2007. In the year 2013 Vijay Gandhi
deserted the appellant and thereafter has
filed a petition seeking dissolution of
marriage under section 13(1) (ia) and
Section 13 (I) (ii) of Hindu Marriage Act,
1955 in Delhi. An NCR/FIR was lodged at
police station Link Road, Ghaziabad by the
plaintiff against the appellant stating that
Vijay Gandhi had left the suit property and
the appellant is still living in the suit
property. It is submitted that in the year
1998 the appellant in absence of Vijay
Gandhi, who married him, was allowed to
stay on the first floor of the suit property.
Merely Vijay Gandhi left the suit premises
will not made that appellant has lost
interest in share and shared household.

Counsel for the appellant has
drawn attention of this court to Section 2(s)
read with Section 17 of the Protection of
Women from Domestic Violence Act, 2005
(hereinafter referred to as the Act, 2005)
which defines ''shared household', and
submits that in absence of the son being a
party, household in which she had first
stepped in alongwith her husband will
continue to be her share household, and she
cannot be evicted unless Vijay Gandhi, her
husband and son of the respondent is not
impleaded as party.

In support of his contention,
counsel for the appellant has placed
reliance on the judgment of the Delhi High
Court as referred in Case of Kavita
Gambhir Vs. Hari Chand Gambhir & Anr
as reported in [(2009) 162 DLT 459]. He
has also placed reliance on the judgment of
the High Court of Allahabad in case of
Nishant Sharma Vs. State of UP [[2013(1)
RCR (Civil) 410 and in case of Neetu Rana
Vs. State of UP [2016 (2) ACR 1797].

On the other hand, counsel for the
respondent has placed reliance on the
judgment of Supreme Court in case of S.R.
216 INDIAN LAW REPORTS ALLAHABAD SERIES
Batra and another VS. Tarun Batra (Smt)
[(2007) 3 SCC 169)] wherein Hon'ble
Supreme Court in para-29 has taken note of
provisions contained in Section 2(s) of Act,
2005 and has expressed its opinion that a
shared household would only mean the
house belonging to or taken on rent by the
husband, or the house which belongs to the
joint family of which the husband is a
member. The property in question neither
belongs to Amit Batra nor was it taken on
rent by him nor it is a joint family property
of which the husband Amit Batra is a
member. Therefore, it is exclusive property
of Appellant - 2, mother of Amit Batra.
Hence it cannot be called a "Shared
household". Similarly reliance has been
placed on the judgement of Delhi High
Court in case of Virendra Kumar and
another Vs. Jaswant Rai and another in
RAS NO. 46 of 2011, wherein in para-7, it
has been noted that even if defendant had
raised money to construct the rooms on the
first floor, it would not be by itself give any
right to the defendant in the land beneath as
raising of the super structure would not
have made him owner of the suit land.

Reliance has also been placed on
the judgment of Delhi Court in case of
Kanhaiya Lal and another Vs. Nathi Lal in
RSA No 27 of 2017, wherein in para-15 and
16, it has been observed that merely because
out of love and affection father-in-law has
permitted his son and daughter-in-law to live
on the first floor, does not mean that he is in
some legal obligation to provide shelter and
accommodation
to disobedient
son
or
daughter-in-law who are source of continued
nuisance for him. In para 16, it has been
observed that none of the statute dealing with
the rights of a married women, be it the
Hindu Marriage Act, 1955; The Hindu
Succession Acct, 1956; The Hindu Adoption
and Maintenance Act, 1956, the Protection of
Women from Domestic Violence Act, 2005
confer any right of maintenance including
residence, for the married women as against
the parents of her husband. Law permits a
married woman to claim maintenance against
her in-laws only in a situation covered under
Section 19 of the Hindu Adoption and
Maintenance Act, 1956. Thus, the contention
raised on behalf of the appellant that the Civil
Court has no jurisdiction in view of the
provisions of the Family Court Act, 1984 and
the Protection of Women from Domestic
Violence Act, 2005 is liable to be rejected.

Reading such observations of the
Delhi High Court, counsel for the respondentplaintiff submits that there is no infirmity in
the concurrent findings of two courts and that
need not be disturbed in the second appeal.

As this stage, counsel for the
appellant submits that in all of the
judgments stated above, husband was
impleaded. In fact, in case of Kanhaiya
Lal and others it has been observed that
the status of son and daughter-in-law i.e.
appellant could not be more than that of a
licencee and that status also come to end
when they were served a notice to vacate
the suit property. The suit property being
self-acquired, the respondent-plaintiff is
under no obligation to maintain his son
and daughter-in-law in view of the legal
position enunciated in the decision of SR.
Batra
Vs.
Taruna
Batra
(Supra).
Therefore, these judgments have not
refered the earlier judgments of Delhi
High Court as referred in case of Kavita
Gambhir & Another, they turn on their
own facts.

After hearing counsel for the
parties, this second appeal is admitted on
the following substantial questions of
law.
7 All. Smt. Sujata Gandhi Vs. Sh. S.B. Gandhi
217

(I) Whether as per definition of
shared house hold provided under section
2(s) of the Act, 2005 appellant daughter-inlaw can be evicted without seeking a decree
of eviction against son with whom she had
admittedly moved on the first floor of the
suit property after marriage of the son of
the plaintiff with appellant?

(ii) As parties are represented, no
fresh notice is required.

Heard
Civil
Misc.
Stay
Application No/I.A. No 1 of 2019. It is
directed that till the next date of listing
execution of impugned judgments and
decree dated 19.9.2019 and 23.9.2019
passed by Additional District Judge, Court
No. 13, Ghaziabad in Civil Appeal No. 63
of 2017, Sujata Gandhi Vs. S.B. Gandhi,
affirming the judgment and decree passed
by the Civil Judge (S.D.), Ghaziabad in OS
No. 907 of 2014, S.B. Gandhi Vs. Sujata
Gandhi on 8.3.2017 shall remain stayed.

With the consent of parties, list
this case on 22.1.2020 for final hearing."

6.

Elaborating
the
arguments,
attention was also drawn to Section 17 of
the Act, 2005. Arguments were mainly
advanced on the term "shared household".
Learned
counsel
for
the
defendantappellant has placed reliance on the
judgments rendered in the cases of Kavita
Gambhir vs. Hari Chand Gambhir and
another (2009) 162 DLT 459 (Paragraphs
6, 18, 19, 20, 23 and 24), Neetu Rana vs.
State of U.P. (2016) 94 ACC 408
(Paragraphs 5 and 7), Nishant Sharma
vs. State of U.P. 2012 (78) ACC 328
(Paragraphs 4, 10, 12, 13 and 14), Subhash
and others vs. Shivani 2016 (4) RCR
(Civil) 21 (Paragraphs 3, 5, 8 and 9),
Prabhakaran S. Vs. State of Kerala 2009
(1) KLJ 278 (Paragraphs 14, 19, 20 and
23), Roma Rajesh Tiwari vs. Rajesh
Dinanath Tiwari (Writ Petition No.
10696 of 2017) Paragraphs 13, 17 and 18,
Preeti Satija vs. Raj Kumari AIR 2014
Delhi 46, B.P. Achala Anand Vs. S. Appi
Reddy and another 2005 (3) SCC 313
(Paragraphs 5, 32 and 33), Harbans Lal
Malik vs. Payal Malik ILR 2010 (6)
Delhi 625 (Paragraphs 17, 18 and 19) and
S.R. Batra vs. Taruna Batra 2007 (3)
SCC 169 (Paragraphs 7, 21 and 29).

7. Much emphasis was given on the
definition of "shared household" and it was
submitted that the house in question is a
matrimonial house of the petitioner and is a
shared
house
as
after
marriage
the
defendant came to reside in the house in
question along with the husband and even
if her husband has left the house, she
cannot be evicted from the house unless the
husband is impleaded and his license is also
revoked by the plaintiff. It was further
submitted that in any case the impleadment
of husband is necessary so that the
defendant may be able to show that the
house in question is a shared house on
cross-examining the husband. The crux of
the submission is that unless husband is
impleaded in a case seeking decree of
eviction filed against the daughter-in-law,
she cannot be evicted as she had moved in
the suit property after marriage of the son
of the plaintiff with the defendant.

8. On the other hand, submission of
learned counsel for the plaintiff-respondent
is that in view of the judgment of S.R.
Batra (supra) submission is that the
plaintiff is admittedly exclusive owner of
the house in question and therefore, the
same cannot be said to be a shared house
therefore, the question of impleading
husband does not arise and in any case his
218 INDIAN LAW REPORTS ALLAHABAD SERIES
impleadment is not at all necessary. He
further summits that the ownership of the
plaintiff was not disputed and was infact,
rather admitted in the written statement
filed by the defendant and the objection
regarding non-impleadment of husband
was never raised before the courts below
and therefore, the same now cannot be
raised. He has placed reliance on the
judgments rendered in the cases of
Virendra
Kumar
and
another
vs.
Jaswant Rai and Another RSA No. 46 of
2011 decided on 10.3.2011 (Paragraph 7),
Kanhaiya Lal and another vs. Nathi Lal
RSA No. 27 of 2017 decided on 16.2.2017
(paragraphs 15 to 18), Shumita Didi
Sandhu vs. Snajay Singh Sandhu and
others 2007 (96) DRJ 697, S.R. Batra
and another vs. Taruna Batra 2007 (3)
SCC 169 (Paragraphs 22, 23, 24, 25, 26,
27, 29, 30).

9. In rejoinder, learned counsel for the
defendant-appellant submitted that the
arguments on Act, 2005 were not available
at the time when judgment in S.R. Batra
(supra) was rendered and therefore, the
same is distinguishable and no reliance can
be placed by the plaintiff on the same. He
further summits that in any case wife
cannot be rendered roofless in such a
situation,
therefore,
impleadment
of
husband is necessary.

10. Before proceeding further it
would be relevant to take note of Section 2
(s), Section 17 and Section 26 of the
Domestic Violence Act, 2005, which are
quoted as under:-

"2. (s) "shared household" means
a household where the person aggrieved
lives or at any stage has lived in a domestic
relationship either singly or along with the
respondent and includes such a household
whether owned or tenanted either jointly by
the aggrieved person and the respondent, or
owned or tenanted by either of them in
respect of which either the aggrieved
person or the respondent or both jointly or
singly have any right, title, interest or
equality and includes such a household
which may belong to the joint family of
which the respondent is a member,
irrespective of whether the respondent or
the aggrieved person has any right, title or
interest in the shared household."

17. Right to reside in a shared
household- (1) Notwithstanding anything
contained in any other law for the time
being in force, every woman in a domestic
relationship shall have the right to reside in
the shared household, whether or not she
has any right, title or beneficial interest in
the same.

26. Relief in other suits and legal
proceedings- (1) Any relief available under
Sections 18, 19, 20, 21 and 22 may also be
sought in any legal proceeding, before a
civil court, family court or a criminal court,
affecting the aggrieved person and the
respondent whether such proceeding was
initiated before or after the commencement
of this Act.

(2) Any relief referred to in subsection (1) may be sought for in addition to
and along with any other relief that that
aggrieved person may seek in such suit or
legal proceeding before a civil or criminal
court.

(3) In case any relief has been
obtained by the aggrieved person in any
proceedings other than a proceeding
under this Act, she shall be bound to
inform the Magistrate of the grant of such
relief."
7 All. Smt. Sujata Gandhi Vs. Sh. S.B. Gandhi
219

11. It would also be appropriate to
note the provisions of Order 1 Rules 3, 9
and 10 CPC, which are quoted as under:-

"3. Who may be joined as
defendants- All persons may be joined in
one suit as defendants where-

(a) any right to relief in respect
of, or arising out of, the same act or
transaction or series of acts or transaction is
alleged to exist against such persons,
whether jointly, severally or in the
alternative; and

(b) if separate suits were brought
against such persons, any common question
of law or fact would arise.

9. Misjoinder and non-joinder-
No suit shall be defeated by reason of the
misjoinder or non-joinder of parties, and the
Court may in every suit deal with the matter
in controversy so far as regards the rights and
interests of the parties actually before it:

[Provided that nothing in this rule
shall apply to non-joinder of a necessary
party.]

10. Suit in the name of wrong
plaintiff- (1) Where a suit has been instituted
in the name of the wrong person as plaintiff
or where it is doubtful whether it has been
instituted in the name of the right plaintiff,
the Court may at any stage of the suit, if
satisfied that the suit has been instituted
through a bona fide mistake, and that it is
necessary for the determination of the real
matter in dispute so to do, order any other
person to be substituted or added plaintiff
upon such terms as the Court thinks just.

(2) Court may strike out or add
parties- The court may at any stage of the
proceeding, either upon or without the
application of either party, and on such terms
as may appear to the Court to be just, order
that the name of any party improperly joined,
whether as plaintiff or defendant, be struck
out, and that the name of any person who
ought to have been joined, whether as
plaintiff or defendant, or whose presence
before the Court may be necessary in order to
enable the Court effectually and completely
to adjudicate upon and settle all the questions
involved in the suit, be added.

(3) No person shall be added as a
plaintiff suing without a next friend or as the
next friend of a plaintiff under any disability
without his consent.

(4) Where defendant added,
plaint to be amended- Where a defendant
is added, the plaint shall, unless the Court
otherwise directs, be amended in such
manner as may be necessary, and amended
copies of the summons and of the plaint
shall be served on the new defendant and, if
the Court thinks fit, on the original
defendant.

(5) Subject to the provisions of
the Indian Limitation Act, 1988 (15 of
1877), Section 22, the proceedings as
against any person added as defendant shall
be deemed to have begun only on the
service of the summons."

12. Insofar as the argument that the
house in question is a "shared household" is
concerned, it is relevant to note that in
paragraph 1 of the plaint it has been
categorically stated by the plaintiff that he
is owner in possession of residential House
Number 8-242, Surya Nagar, Ghaziabad
U.P. through registered sale deed. Suffice
to note that in the written statement filed by
the defendant-appellant in paragraph 1 the
220 INDIAN LAW REPORTS ALLAHABAD SERIES
contents of paragraph 1 of the plaint had
been categorically admitted. No additional
plea has been taken in the written statement
disputing the aforesaid fact. Therefore, any
evidence, documentary or oral, cannot be
seen in absence of a pleading. A reference
may be made to the judgment rendered by
Hon Supreme Court in the case of Arikala
Narasa Reddy versus Venkata Ram
Reddy Reddygari (2014) 5 SCC 312
wherein it has been held that party has to
plead necessary and material facts; party
cannot go beyond pleadings; in absence of
pleadings, evidence cannot be considered;
relief not founded on pleadings should not
be granted, paragraph 15 whereof is quoted
as under:-

"15. This Court has consistently held
that the court cannot go beyond the pleadings of
the parties. The parties have to take proper
pleadings and establish by adducing evidence
that by a particular irregularity/illegality, the
result of the election has been "materially
affected". There can be no dispute to the settled
legal proposition that "as a rule relief not
founded on the pleadings should not be
granted". Thus, a decision of the case should
not be based on grounds outside the pleadings
of the parties. In absence of pleadings, evidence
if any, produced by the parties, cannot be
considered. It is also a settled legal proposition
that no party should be permitted to travel
beyond its pleadings and parties are bound to
take all necessary and material facts in support
of the case set up by them. Pleadings ensure
that each side is fully alive to the questions that
are likely to be raised and they may have an
opportunity of placing the relevant evidence
before the court for its consideration. The issues
arise only when a material proposition of fact or
law is affirmed by one party and denied by the
other party. Therefore, it is neither desirable nor
permissible for a court to frame an issue not
arising on the pleadings. The court cannot
exercise discretion of ordering recounting of
ballots just to enable the election petitioner to
indulge in a roving inquiry with a view to fish
material for dealing the election to be void. The
order of recounting can be passed only if the
petitioner sets out his case with precision
supported by averments of material facts.
(Vide: Ram Sewak Yadav v. Hussain Kamil
Kidwai & Ors AIR 1964 SC 1249; Bhabhi v.
Sheo Govind and others AIR 1975 SC 2117;
and M. Chinnasamy v. K.C. Palanisamy and
others (2004) 6 SCC 341)."
(emphasis supplied)

13. Even otherwise, a concurrent
finding has been recorded by both the
courts below that the defendant has even
failed to demolish the case of the plaintiff
or to prove her argument/assertion that the
plaintiff is not the exclusive owner of the
house. On the strength of judgments relied
on by learned counsel for the defendantappellant, much emphasis was given that
unless the husband is impleaded in the suit
she did not have the opportunity to prove
that the plaintiff was not the exclusive
owner of the house in dispute and that the
same is a shared house. This argument is
entirely misconceived in as much as
exclusive ownership of the plaintiff was
admitted and the plea of husband being a
necessary party was never raised before the
courts below.

14. A reference may be made in this
regard to the judgment of Hon Supreme
Court in S.R. Batra (supra), paragraph 7,
21, 22, 23, 24, 25, 26, 27, 29, 30 are quoted
as under:-

"7. It is admitted that Smt. Taruna
Batra had shifted to her parent's residence
because of the dispute with her husband.
She alleged that later on when she tried to
enter the house of the appellant no.2 which
7 All. Smt. Sujata Gandhi Vs. Sh. S.B. Gandhi
221
is at property No. B-135, Ashok Vihar,
Phase-I, Delhi she found the main entrance
locked and hence she filed Suit No.
87/2003 for a mandatory injunction to
enable her to enter the house. The case of
the appellants was that before any order
could be passed by the trial Judge on the
suit filed by their daughter-in- law, Smt.
Taruna Batra, along with her parents
forcibly broke open the locks of the house
at Ashok Vihar belonging to appellant No.
2, the mother- in-law of Smt. Taruna Batra.
The appellants alleged that they have been
terrorized by their daughter-in-law and for
some time they had to stay in their office.

21. It may be noticed that the
finding of the learned Senior Civil Judge
that in fact Smt. Taruna Batra was not
residing in the premises in question is a
finding of fact which cannot be interfered
with either under Article 226or 227 of the
Constitution. Hence, Smt. Taruna Batra
cannot claim any injunction restraining the
appellants from dispossessing her from the
property in question for the simple reason
that she was not in possession at all of the
said property and hence the question of
dispossession does not arise.

22. Apart from the above, we are
of the opinion that the house in question
cannot be said to be a `shared household'
within the meaning of Section 2(s) of the
Protection of Women from Domestic
Violence Act, 2005 (hereinafter referred to
as the 'Act'). Section 2(s) states:

"2. (s) `shared household` means
a household where the person aggrieved
lives or at any stage has lived in a domestic
relationship either singly or along with the
respondent and includes such a household
whether owned or tenanted either jointly by
the aggrieved person and the respondent, or
owned or tenanted by either of them in
respect of which either the aggrieved
person or the respondent or both jointly or
singly have any right, title, interest or
equity and includes such a household
which may belong to the joint family of
which the respondent is a member,
irrespective of whether the respondent or
the aggrieved person has any right, title or
interest in the shared household".

23. Learned counsel for the
respondent Smt. Taruna Batra has relied
upon Sections 17 and 19 (1) of the
aforesaid Act, which state:

"17.
(1)
Notwithstanding
anything contained in any other law for the
time being in force, every woman in a
domestic relationship shall have the right to
reside in the shared household, whether or
not she has any right, title or beneficial
interest in the same.

(2) The aggrieved person shall
not be evicted or excluded from the shared
household or any part of it by the
respondent save in accordance with the
procedure established by law.

19. (1) While disposing of an
application under sub-section (1) of Section
12, the Magistrate may, on being satisfied
that domestic violence has taken place, pass
a residence order--

(a) restraining the respondent
from dispossessing or in any other manner
disturbing the possession of the aggrieved
person from the shared household, whether
or not the respondent has a legal or
equitable interest in the shared household;

(b) directing the respondent to
remove himself from the shared household;
222 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) restraining the respondent or
any of his relatives from entering any
portion of the shared household in which
the aggrieved person resides;

(d) restraining the respondent
from alienating or disposing off the shared
household or encumbering the same;

(e) restraining the respondent
from renouncing his rights in the shared
household except with the leave of the
Magistrate; or

(f) directing the respondent to
secure
same
level
of
alternate
accommodation for the aggrieved person as
enjoyed by her in the shared household or
to
pay
rent
for
the
same,
if
the
circumstances so require:

Provided that no order under
clause (b) shall be passed against any
person who is a woman".

24. Learned counsel for the
respondent Smt. Taruna Batgra stated that
the definition of shared household includes
a household where the person aggrieved
lives or at any stage had lived in a domestic
relationship. He contended that since
admittedly the respondent had lived in the
property in question in the past, hence the
said property is her shared household.

25. We cannot agree with this
submission.

26. If the aforesaid submission is
accepted, then it will mean that wherever
the husband and wife lived together in the
past that property becomes a shared
household. It is quite possible that the
husband and wife may have lived together
in dozens of places e.g. with the husband's
father, husband's paternal grand parents, his
maternal parents, uncles, aunts, brothers,
sisters,
nephews,
nieces
etc.
If
the
interpretation canvassed by the learned
counsel for the respondent is accepted, all
these houses of the husband's relatives will
be shared households and the wife can well
insist in living in the all these houses of her
husband's relatives merely because she had
stayed with her husband for some time in
those houses in the past. Such a view would
lead to chaos and would be absurd.

27. It is well settled that any
interpretation which leads to absurdity
should not be accepted.

29. As regards Section 17 (1) of
the Act, in our opinion the wife is only
entitled to claim a right to residence in a
shared household, and a `shared household'
would only mean the house belonging to or
taken on rent by the husband, or the house
which belongs to the joint family of which
the husband is a member. The property in
question in the present case neither belongs
to Amit Batra nor was it taken on rent by
him nor is it a joint family property of
which the husband Amit Batra is a
member. It is the exclusive property of
appellant No. 2, mother of Amit Batra.
Hence it cannot be called a `shared
household'.

30. No doubt, the definition of
`shared household' in Section 2(s) of the
Act is not very happily worded, and
appears to be the result of clumsy drafting,
but we have to give it an interpretation
which is sensible and which does not lead
to chaos in society."(emphasis supplied)

15. In the above quoted paragraph no.
29 the Hon'ble Supreme Court has
considered the aspect of shared household
7 All. Smt. Sujata Gandhi Vs. Sh. S.B. Gandhi
223
and has held that where the plaintiff is the
exclusive owner, it cannot be called a
"shared household". Even the claim of the
wife for alternative accommodation against
the plaintiff was rejected and was held that
it can be claimed only against the husband
and not against the in-laws or other
relatives.

16. Thus, in the opinion of the Court,
on facts, the question much less the
substantial question of law, whether son
was liable to be impleaded in the present
case, does not arise. Needless to say that
his (son) impleadment as defendant would
be necessary if decree of eviction is to be
passed against him. It is the settled law that
a substantial question of law arises only out
of pleadings and judgments of the lower
court. It is needless to point out that in the
present case, as already noticed, there was
no pleading in this regard that husband is a
necessary defendant or even a party to the
suit and is liable to be impleaded. Even in
appeal before the lower appellate court, this
ground was not taken. Therefore, in view of
the settled law on this ground no such
substantial question of law arise or can be
raised in the present second appeal. Thus,
insofar as the present second appeal is
concerned, the same has no merits.

17. Since the second appeal has
already been admitted on the substantial
question of law already framed in the order
dated 19.11.2019, which has already been
quoted above, the arguments raised by the
learned counsel for the parties are being
considered to answer the question in view
of the observations made and as held by
Hon'ble Supreme Court in Sri Chunilal Vs.
Mehta
Sons
Ltd
versus
Century
Spinning and Manufacturing Company
Ltd AIR 1962 SC 1314, paragraph 6
whereof is quoted as under: -

"6. We are in general agreement
with the view taken by the Madras High
Court and we think that while the view
taken by. the Bombay High Court is rather
narrow the one taken by the former High
Court of Nagpur is too wide. The proper
test for determining whether a question of
law raised in the case is substantial would,
in our opinion, be whether it is of general
public importance or whether it directly
and substantially affects the rights of the
parties and if so whether it is either an open
question in the sense that it is not finally
settled by this Court or by the Privy
Council or by the Federal Court or is not
free from difficulty or calls for discussion
of alternative views. If the question is
settled by the highest Court or the general
principles to be applied in determining the
question are well settled and there is a mere
question of applying those principles or
that the plea raised is palpably absurd the
question would not be a substantial
question of law." (emphasis supplied)

18. In this regard it would be relevant
to notice the provisions of Order 1 Rule 3
and Rule 9 CPC, which have already been
quoted above. It is not in dispute that the
husband is not residing in the suit property
and has left the house. It is also not being
questioned that if parents permit his son to
live in their house he would be a licensee.
If his wife is also living with him, she
would also be a licensee. Order 1 Rule 3
CPC clearly provides "Who may be joined
as defendants." It is needless to point out
that in the present case or say, where the
son has left and is not residing in the suit
property, no relief is being or is claimed
against him. Since he is not living in the
suit property, question of filing a separate
suit or which may attract any common
question of law or fact would also not arise.
Therefore, he cannot be said to be a
224 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary party to the litigation between
the plaintiff and the defendant.

19. Order 1 Rule 9 CPC is a provision
on mis-joinder and non-joinder of parties,
which clearly provides that no suit shall be
defeated by reason of mis-joinder or nonjoinder of parties and the court may in
every suit deal with the matter in
controversy so far as regards the rights and
interest of the parties actually before it.
However, the Proviso was added by Act
104 of 1976, Section 52, w.e.f 1.2.1977 that
provided that nothing in this rule shall
apply to non-joinder of a necessary party.
Thus, for a suit to be bad for non-joinder of
party, it has to be proved that the party who
has not been impleaded in the suit is a
necessary party without whose presence the
suit cannot be decided.

20. The principle of "dominus litis", is
too well-known in regard to impleadment
of parties, which clearly provides that the
plaintiff in a suit being dominus litis, may
choose the person 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. However, this
general rule is subject to provisions of
Order 1 Rule 10 (2) CPC, which provides
for impleadment of proper or necessary
parties. Even in the aforesaid provision, a
discretion is left with the court to implead a
party at any stage of proceedings, either
upon or without the application of either
parties and on such terms strike out name
of a person improperly impleaded or joined
and add the name of a person who ought to
have been joined whether as plaintiff or
defendant or whose presence will be
necessary in order to enable the court to
effectually and completely adjudicate upon
and settle all questions involved in the suit
to be addressed.

21. In view of the settled law it is
needless to say that a necessary party is a
person who ought to have joined as a party
in whose absence no effective decree could
be passed at all by the court. A proper party
is a party who may not be a necessary party
but would enable the court to completely,
effectively and adequately adjudicate upon
all matters in dispute in the suit though he
may not be a person in whose favour or
against whom a decree is to be made. Thus,
it is clear that it cannot be said that by
operation of law a particular person or
category is a necessary party, unless
statutorily provided in this regard. A
reference may be made in the judgment of
Hon'ble
Supreme
Court
in
Mumbai
International Airport Private Limited
Vs. Regency Convention Centre and
Hotels Private Limited and others 2010
(7) SCC 417. Paragraphs 13, 14 and 15
whereof are quoted as under:-

"13 . 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.
The said sub-rule is extracted below:

"10.