Ranjana Desai, J.@mdashIn this appeal judgment and order dated 24.1.2000, passed by the learned Single Judge in F.A. No. 377 of 1990 is under challenge. The appellant is the original defendant and the respondent is the original plaintiff. For the sake of convenience, the parties are referred to in this judgment as per their status in S.C. Suit No. 3378 of 1983.
2. S.C. Suit No. 3378 of 1983, out of which the present appeal arises, was filed by the plaintiff-wife against the defendant-husband for a mandatory injunction for removing him along with his belonging from Flat No. 9, Datta Vijay Co-operative Housing Society Ltd., Mahatma Phule Road, Mulund (East) Bombay-400 081 ("the suit flat" for short).
3. Before we deal with the merits of the case, it will be necessary to state that during the pendency of the instant proceedings, the marriage between the plaintiff and the defendant is dissolved by a decree of divorce. Since the suit pertains to a flat to which both the plaintiff and the defendant are staking their claim, we are concerned in this appeal only with the facts which are relevant for that purpose. We are strictly not concerned with all the allegations and counter-allegations made by both sides against each other and hence we have mentioned only such facts as are material.
4. The plaintiff was married to the defendant on 18.12.1973. After the marriage the couple resided together in the defendant''s flat at Siddharth Nagar, Goregaon, Bombay ("Goregaon house" for short). The defendant had another accommodation at Girgaun ("Girgaun house" for short).
5. The defendant was a qualified Engineer serving with the Reserve Bank of India as an Executive Engineer. At the material time the plaintiff was employed as a teacher in Pune. At the time of marriage the plaintiff was an issueless divorcee.
6. Admittedly, prior to this marriage the defendant had married one Subhada Datar and was residing with her at the Goregaon house. The said Subhada Datar committed suicide by setting her clothes on fire.
7. In or about March, 1974, the plaintiff came to know of the availability of the suit flat which was owned by one Navare. According to the plaintiff, out of her own savings and with the financial assistance from her parents she purchased suit flat in April, 1974. At that time the defendant had given some amount by way of loan, but the same had been fully repaid by her parents. It is the case of the plaintiff that she is the owner and/or allottee member of the society in respect of the suit flat and the share certificate in respect thereof stands in her name.
8. In August, 1974, the defendant was transferred to Delhi. The plaintiff went to Delhi with him. The defendant''s daughter Anju and his mother continued to reside at the Goregaon house. According to the plaintiff, the possession of the suit flat was given to her on 15th April, 1975, for which she had specially come to Bombay. Soon thereafter there was thread ceremony of defendant''s nephew and, as large number of guests were expected, the plaintiff permitted the defendant''s mother to use the suit flat. After the ceremony was over, the couple went back to Delhi. They stayed at Delhi between August, 1974 and 24th April, 1981. A daughter was born on 9th June, 1977. She is Vrinda.
9. According to the plaintiff, the defendant was a very miserly and stingy person, who would deny to himself and to his wife even the basic necessities of life. He had no regard for truth. He was vain, insolent an/1 impudent. He was greedy and he had an eye on her and her parents'' money. He was bereft of normal feeling of attachment, love and affection. He looked upon her merely as an instrument for satisfaction of lust and treated her as an unpaid servant in the house. His behaviour left her completely disillusioned.
10. After they returned from Delhi to Bombay, the parties started residing in the suit flat. On 18th November, 1981, the defendant in a very threatening manner assaulted the plaintiff. She apprehended danger to her life, particularly against the background of the fact that his first wife had committed suicide. She, therefore, called her parents from Pune.
11. On 26th November, 1981, she went to Pune along with her daughter Vrinda and her parents. After coming to Pune, the plaintiff realised that she could not put up with the defendant''s behaviour. She resolved to stand on her own feet without any reference to the defendant. She thought of disposing of the suit flat so that she could deposit the proceeds in an appropriate security and live by the interest accrued thereon. She wrote to the defendant about this, but the defendant refused to shift from the suit flat. She, therefore, could not negotiate about the sale of the suit flat.
12. As the days passed by, she realised that she was a burden on her parent''s family. There were certain domestic problems in the parents'' family and hence the attitude of her parents and other members of the family changed. She, therefore, decided to come down to Bombay to secure some employment and stay in her own flat. The plaintiff, therefore, wrote to the defendant requesting him to remove himself from the suit flat. However, the defendant did not do so.
13. The plaintiff, with the object of securing employment in Bombay, came to the suit flat on 27th May, 1983, from Pune. She requested the defendant to leave her alone in the suit flat and shift to his Goregaon house. The defendant refused to shift. He threatened her by saying that he would teach her a lesson. The plaintiff found it impossible to continue to reside in the suit flat along with the defendant because of the constant threats given to her by him. The plaintiff, therefore, filed S.C. Suit No. 3378 of 1983, contending that though there was no formal legal adjudication or annulment, the marital tie had lost all its significance. Her financial position was depleted. She had neither the means nor the energy to initiate any, matrimonial proceedings against the defendant. The plaintiff claimed that she was the owner of the suit flat. She was entitled to decide as to who should occupy the same. She contended that she did not desire that the defendant should share the suit flat. According to her, the defendant was forcing himself in the suit flat against her wishes; that the defendant at best would be a gratuitous licensee initially under a licence which had since long been withdrawn and revoked. The defendant was thus a nuisance and a trespasser and, therefore, it was just and proper that he should be directed to remove himself from the suit flat under a mandatory order.
14. The defendant filed his written statement and raised an objection that the suit was bad in law and was liable to be dismissed inasmuch as in the plaint it was averred that the defendant was a gratuitous licensee and, therefore, the City Civil Court had no jurisdiction to entertain and try the suit. According to the defendant the suit would also be beyond the pecuniary jurisdiction of the City Civil Court. He denied all the allegations made by the plaintiff against him.
15. The defendant made an application that following three issues be tried as preliminary issues :
(a) Whether the plaintiff proves that this Court has pecuniary jurisdiction to entertain and try this suit, when the value of the flat,, the subject-matter of the suit, was more than Rs. 1,10,000/- on the date of the filing of the suit?
(b) Whether the plaintiff proves that this Court has jurisdiction to try this suit when the plaintiff has stated in her plaint that the defendant is a licensee and she is a licensor?
(c) Whether the plaintiff proves that she, a Hindu wife is entitled to evict, her husband, mother-in-law and daughter from their long established matrimonial home, during subsistence of her marriage?
16. By a detailed order dated 10th October, 1988, the learned Judge held that the suit as framed was maintainable in the City Civil Court. He answered the first two issues against the defendant. As regards the third issue, the learned Judge held that it cannot be tried as a preliminary issue as it will depend on the evidence which the parties would adduce. The defendant did not challenge this order.
17. At the trial, the plaintiff and the defendant gave evidence in support of their respective cases. By his judgment and order dated 22nd/28th February, 1990, the learned Judge decreed the suit. The learned Judge thought it not necessary to decide the question whether the City Civil Court had jurisdiction to try the suit in view of the order of the City Civil Court dated 10th October, 1988, by which these issues were answered against the defendant and which order was not challenged by him. He held that the plaintiff had proved that she had paid the entire purchase price of the suit flat and the defendant had failed to prove that he had paid Rs. 11,550/- as the first installment towards the purchase price.
18. First Appeal No. 377 of 1990 filed by the defendant challenging the said judgment and order was dismissed by the learned Single Judge of this Court on 24th of January, 2000. While dismissing the appeal, the learned Single Judge held that the order dated 10th October, 1988, passed by the City Civil Court on the question of jurisdiction cannot be faulted. On the merits of the case the learned Single Judge concurred with the findings of the City Civil Court that the documentary evidence shows that the suit flat was purchased by the father of the plaintiff-wife for her benefit. It was owned by the plaintiff. In the society''s record her name was recorded as the member of the society holding the shares. In her own right she had also nominated her brother as the nominee. Though the defendant had stated that he had paid certain amounts towards the purchase price of the flat, the evidence on record showed that the said amount was lent by him to the wife. It was repaid by the plaintiff and he had accepted the repayment. The first appeal was dismissed as the learned Single Judge found that there was no infirmity or perversity in the findings given by the Trial Court.
19. Being aggrieved by the dismissal of the first appeal, the defendant-husband has preferred the present Letters Patent Appeal.
20. We have heard at some length Mr. A.V. Anturkar, the learned Counsel for the appellant and Mr. Joshi, the learned Counsel for the respondent. With the assistance of the learned Counsel, we have gone through the record.
21. Mr. Anturkar assailed the impugned judgment and order on several counts. However, in our opinion, his basic objection to the maintainability of the suit in the City Civil Court at Bombay, in view of the provisions of the Family Courts Act, 1986, must be upheld. Mr. Anturkar urged that the suit filed by the plaintiff is for mandatory injunction against the defendant for removing him along with his belongings from the suit flat. The suit flat is admittedly the matrimonial home of the plaintiff and the defendant. The suit was filed during the subsistence of their marriage in 1983. The suit falls in categories (b), (c) and (d) of Section 7(1) of the said Act. The Family Courts Act, 1984 was applied to the State of Maharashtra on 1st December, 1986 and the Family Court was established on 7.10.1989. Therefore, u/s 8(c) of the Family Courts Act, 1984, the suit stood automatically transferred to the Family Court on 7.10.1989. After 7.10.1989, the City Civil Court had no jurisdiction to try the suit in question.
22. We will now examine this submission of Mr. Anturkar as in our opinion it goes to the root of the matter and, therefore, it will not be necessary to deal with his other submissions.
23. The preamble to the Family Courts Act, 1984 says that the Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promoting conciliation in, and securing speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith.
24. Section 7 of the said Act, so far as it is relevant for the purposes of the present appeal reads as under :
"7. Jurisdiction-(1) Subject to the other provisions of this Act, a Family Court shall,-
(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation, and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.
Explanation : The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely :
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship."
25. Section 8 thereof, so far as it is relevant for the purposes of present appeal reads as under :
"8. Exclusion of jurisdiction and pending proceedings-Where a Family Court has been established for any area :
(a) no District Court or any subordinate Civil Court referred to in Sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect or any suit or proceeding of the nature referred to in the Explanation to that sub-section,
(b) xxx xxx xxx
(c) every suit or proceeding of the nature referred to in the Explanation to Sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)-
(i) which is pending immediately before the establishment or such Family Court before any District Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act has come into force and such Family Court had been established
shall stand transferred to such Family Court on the date on which it is established."
26. Section 20 says that the provisions of the Family Courts Act, 1984 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force on in any instrument having effect by virtue of any law other than the Family Courts Act, 1984.
27. It is evident, therefore, that after establishment of Family Court, any suit or proceeding enumerated u/s 7 of the Family Courts Act, can only be filed in the Family Court. The question is whether the present suit falls in any of the enumerated categories. For this purpose the averments made in the plaint are very material.
28. In our opinion, the following averments made in the plaint are significant :
"3. The defendant is the husband of the plaintiff. At present, the defendant, his daughter from his first marriage and his mother are in the joint occupation of the suit flat along with the plaintiff.
.............................."
"7. The plaintiff states that some time or about March, 1977, she came to be informed about availability of the suit flat, which then was booked by one Shri Navare. The plaintiff thereafter, from out of her own saving as a teacher and with the help of financial assistance from her parents purchased the suit flat in April, 1974. The plaintiff states that at that time, the defendant had also given some amount by way of a loan, but the same has been fully repaid by the plaintiff''s parents to the defendant. In March, 1974, the society building was under construction."
"9. On or about 15.4.1975, the plaintiff was given the possession of the suit flat, and the plaintiff had specifically come to Bombay from Delhi for taking possession of the suit flat. Soon thereafter there was the thread ceremony of the son of the defendant''s sister and as a large number of guests were expected, the plaintiff permitted the defendant''s mother to use and occupy the suit flat. She then went to Delhi."
"12. The plaintiff states that the defendant, returned to Bombay from Delhi on or about 15.11.1981. At that time, the plaintiff was residing in the suit flat, on 18.11.1981, the defendant, in very threatening and intimidating manner assaulted the plaintiff.........Consequently, on that very same day, she summoned her parents from Pune to Bombay and had no alternative but to go her parents'' place at Pune. Accordingly the plaintiff along with her daughter Vrinda left for the parent''s place at Pune on 26.11.1981."
"14............As the employment chances were bright in Bombay, and as she was even otherwise not desirous of continuing in Pune in the absence of any independent accommodation, she resolved to come to Bombay to secure some employment, she however, felt that, it would be extremely hazardous to share same roof along with the defendant, if the past experience is any guide. The plaintiff, time and again wrote to the defendant to remove himself from the suit flat. In fact, the defendant had also indicated to the plaintiff that the moment she regarded the matrimonial alliance as of no consequence, he would, that very moment, leave the suit flat."
"15..............The plaintiff, with the object of securing an employment in Bombay, came to the suit flat on 27.5.1983, from Pune.... Since then, the plaintiff, some of her relations, defendants, his mother and daughter and some of his relations have been residing in the suit flat. The defendant since the next day, he apparently taken leave from work as he is present in the suit flat round-the-clock. The atmosphere in the house is filled with tension and the manner in which the defendant often times angrily stares at the plaintiff is indicative of a mind that contemplate causation of hurt. In the premises, it is impossible for the plaintiff to continue to reside in the premises along with the defendant."
"16. The plaintiff states that to all intents and purpose, the defendant has rendered himself as a total stranger to her. The marital tie and the bond has lost all its significance and solemnity by reason of the inexcusable deportment.... She has neither the means nor the energy to initiate any matrimonial proceedings against the defendant. In any way, in their mind as also body, the plaintiff and the defendant have been divorced since long even though there may not be any formal legal adjudication."
29. These averments make it clear that the suit flat was the matrimonial home of the plaintiff and the defendant. According to the plaintiff, the suit flat was purchased by her from out of her own savings as a teacher and with the financial assistance of her parents. The defendant had given some amount by way of loan but the same was fully repaid by the plaintiff''s parents to the defendant. The plaintiff and the defendant used to reside in the suit flat along with the members of the defendant''s family, and the defendant had indicated to her that the moment she regarded the matrimonial alliance as of no consequence, he would, that very moment, leave the suit flat. Implicit in this is the admission that the plaintiff and the defendant were residing in the suit flat as it was their matrimonial home. The plaint states that on account of the defendant''s behaviour, it was impossible for the plaintiff to continue to stay in the suit flat. It is against this background that, the plaintiff has prayed for a mandatory injunction to remove the defendant from the suit flat.
30. There is no doubt, that the subject-matter of the suit is the matrimonial home which plaintiff claims to be of her ownership. Order of injunction is prayed for in circumstances arising out of a marital relationship. While the plaintiff states that she has paid the entire purchase price, the defendant is disputing this fact. He is also disputing that on account of his alleged misbehaviour, the plaintiff is entitled to any order of injunction.
31. Apart from this, the tenor of the evidence of the plaintiff, also leads to this inference. In her deposition, the plaintiff has given the details of the payment made by her to the society. She has stated that Mr. Navare, the owner of the flat had demanded Rs. 11,000/- in cash for transfer of the flat. She was net aware that she would have to pay Rs. 11,000/- in cash. The defendant gave a cheque in the sum of Rs. 11,550/- to the society. The said sum was in the nature of temporary accommodation loan to her which she claims to have repaid. The said amount was repaid by first paying Rs. 2,970/- from her own funds, by cheque between the period 3.10.1974 and 19.7.1975. In August, 1978, another sum of Rs. 5,000/- was paid by her father to the defendant by demand draft. Rs. 3,800/- were paid by her mother to the defendant in August, 1978 by demand draft. These amounts aggregate to Rs. 11,770/-
32. In paragraph 61 of her evidence, this is what the plaintiff states :
"61. It is true that the suit premises were acquired as it was necessary for me, my husband, defendant''s mother and daughter, as the Goregaon flat was not sufficient to accommodate all these persons. It is true that the suit flat was purchased to enable me and the defendant to live there as husband and wife and as there was no thought of separation at that time.
To Court : I do not know what is meant by matrimonial home.
(Attention of the witness is drawn to the statement in her affidavit dated 6.6.1983 at page 1 para 3 reading :
I state that I had initially allowed the defendant to use the suit flat along with me as our matrimonial home.
This statement is correct."
33. In. paragraph 62, the plaintiff has admitted that from August, 1975, to March, 1982, the defendant was paying the out-goings of the suit flat.
34. The defendant has denied the case of the plaintiff that she owns the suit flat, in his written statement as well as in his evidence. Therefore, as described in Section 7(1)(c) of the Family Courts Act, 1984, this is a suit between the parties to a marriage with respect to the property of the parties or either of them.
35. In her evidence the plaintiff has also given the details of the alleged ill-treatment meted out to her by the defendant. She has stated that the defendant is a miser. He has a suspicious nature. He is egoistic, greedy and avaricious. He had no love and affection for her and her daughter. Knowing that the defendant is a miser, her father had sent her demand draft when they were staying at Delhi. When they came to Bombay, she was subjected to ill-treatment. On account of the defendant''s conduct, she found it difficult to live with him and she decided to dispose of the suit flat in March, 1979. The defendant objected to it and hence she could not sell the suit flat. On 18th January, 1992, the defendant tried to assault the plaintiff when he came to know that she had nominated her brother as a successor to the flat in the society''s record. She apprehended danger to her life because the defendant''s earlier wife had committed suicide. Therefore, she went to Pune with her parents. On account of some domestic problems in her parents'' family she could not stay in Pune with them. Hence, she decided to take up employment in Bombay. She requested the defendant to vacate the suit flat but the defendant refused to vacate it. The plaintiff, therefore, filed the instant suit.
36. In his written statement as well as in evidence, the defendant has denied the case of the plaintiff that he ever ill-treated her. There is no doubt, therefore, that as described in Section 7(1)(d) of the Family Courts Act, 1984, this is a suit for an order or injunction in circumstances arising out of a marital relationship.
37. In response to this argument of Mr. Anturkar, Mr. Joshi, learned Counsel for the plaintiff, submitted that this objection to the maintainability of the suit in the City Civil Court on account of the establishment of Family Court has been overruled by this Court and, hence, it is not open to the defendant to now urge it.
38. Our attention was drawn to Misc. Civil Application No. 2 of 1993. This application was filed by the defendant stating, inter alia, that one money suit being Civil Suit No. 1252 of 1985 and one appeal being First Appeal No. 377 of 1990 {the appeal out of which, the present L.P.A. arises) are pending in the High Court. It is averred that both these proceedings are about the matrimonial home of the parties and, therefore, u/s 7(1)(c) of the Family Courts Act, the Family Court only has jurisdiction to adjudicate these two civil suits. It is prayed that in exercise of its inherent powers u/s 151 of the Civil Procedure Code, the High Court may transfer Civil Suit No. 1252 of 1985 and First Appeal No. 377 of 1990 to ''the Family Court at Bandra. (We may make it clear that in this matter we are not concerned with the Civil Suit No. 1252 of 1985.) The said application was placed before the then Acting Chief Justice (Smt.) Suiata Manohar. On 18.1.1993, justice Manohar directed that the matter be placed before the then Chief Justice on 16.2.1993 subject to his approval. On 16.2.1993, it was placed before the then Chief Justice M.K. Mukherjee. The defendant appeared in person and the plaintiff was represented by Advocate Mr. Joshi. The learned Chief Justice rejected the transfer application by observing that, it was devoid of merits. Mr. Joshi contended that since the prayer for transfer was rejected, the same contention cannot be agitated now as it is hit by res judicata.
39. We have carefully perused the Misc. Civil Application No. 2 of 1993. In our opinion, the said application is totally misconceived. Though there is reference to Section 7(1)(c) of the Family Courts Act, 1984, the prayer made in the application is a prayer which could not have been granted by the High Court. A first appeal pending in the High Court could not have been transferred to the Family Court for disposal u/s 8 of the Family Courts Act. The learned Chief Justice, therefore, rightly observed that the application was devoid of merits. It, therefore, cannot be said that the order of the learned Chief Justice dated 16.2.1993 operates as res judicata. We, therefore, reject this submission of Mr. Joshi.
40. For the reasons recorded by us hereinabove, the suit would properly lie in the Family Court under the provisions of Section 7 of the Family Courts Act, 1984; Even though, when the suit was filed, the Family Court was not established, the suit ought to have been transferred to the Family Court after establishment of Family Court as per the provisions of Section 8 of the said Act. Unfortunately this fact was not brought to the notice of the Trial Court by the learned Counsel appearing for the plaintiff and the defendant.
41. In view of our finding that the present suit can lie only in the Family Court, the other two preliminary objections of Mr. Anturkar, namely, whether the City Civil Court had pecuniary jurisdiction to entertain the present suit or whether it had jurisdiction to entertain it in view of the averment made by the plaintiff that the defendant is a licensee and she is a licensor, need not now be adjudicated upon. Since the Family Court alone has the exclusive jurisdiction to try the suit of the nature with which we are concerned in the present appeal, the said two objections, in our opinion, are wholly immaterial and we reject them as such.
42. It is argued by the learned Counsel for the plaintiff that the suit is of 1983. The parties have been litigating since 1983. In the meantime, the marriage is dissolved by a decree of divorce and, therefore, it would not be in the interest of the parties to drive them to the Family Court at this stage.
43. The learned Counsel for the plaintiff urged that in the interest of justice this Court should decide the matter on the basis of the evidence as on record, rather than going into the question of jurisdiction. We are unable to accept the submission of the learned Counsel. No doubt, driving the parties to Family Court is going to cause some inconvenience to them. Perhaps, if both sides were ad idem and had not pressed the jurisdictional issue, we could have concluded the matter here. But Mr. Anturkar has taken a strong objection to the maintainability of the suit in the City Civil Court, in view of the provisions of the Family Courts Act, 1984. We have already held that we find substance in his argument.
44. In order to avoid another round of litigation, we spent considerable time in persuading the parties to settle the matter. Offers and counter-offers were made in Court, and we tried to use our offices to put an end to the disputes. However, neither the plaintiff, nor the defendant is willing to give up or budge from their respective stands. We have, therefore, no alternative but to do what the law requires and expects us to do. However inconvenient it may be to the parties, in view of the provisions of the Family Courts Act, 1984, in our opinion, the S.C. Suit No. 3378 of 1983, filed in the City Civil Court at Bombay, stood transferred to the Family Court with effect from 7.10.1989 as the City Civil Court ceased to have jurisdiction to entertain, try or decide the said suit from that day. Needless to say that any evidence recorded by the City Civil Court after that day cannot be taken into consideration unless the parties consent to it. It is clarified that we have not expressed any opinion on the merits of the case.
45. In the result, we pass the following order :
(a) Appeal is allowed.
(b) Impugned order dated January 24, 2000 passed by the learned Single Judge in First Appeal No. 377 of 1990 and the judgment and order dated 22/28.2.1990 passed by the City Civil Court in S.C Suit No. 3378 of 1983 are quashed and set aside.
(c) S.C. Suit No. 3378 of 1983 shall stand transferred to the Family Court with immediate effect to be heard and disposed of in accordance with law.
(d) Any evidence recorded, or order made, by the City Civil Court on and after the establishment of Family Court that is on and after 7.10.1989, shall not be considered by the Family Court, unless parties agree that such evidence may be taken into consideration for disposal of the suit.
(e) The Family Court shall dispose of the suit as expeditiously as possible and at any rate within the period of eight months from today.
(f) In the circumstances of the case, there shall be no order as to costs.
