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SCR.A/414/2011 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 414 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2.
To
be referred to the Reporter or not ?
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5.
Whether
it is to be circulated to the civil judge ?
=========================================
ANUPBHAI
JAYANTILAL MODI & 5 - Applicant(s)
Versus
HINABEN
ANUPBHAI MODI & 1 - Respondent(s)
=========================================
Appearance
:
MR HIREN M
MODI for
Applicant(s) : 1 - 6.
MR DP KINARIWALA for Respondent(s) : 1,
MR
LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 11/08/2011
ORAL
JUDGMENT
RULE.
Shri D.P. Kinariwala, learned
advocate waives service of notice of Rule on behalf of respondent
No.1 and Shri L.B. Dabhi, learned Additional Public Prosecutor waives
service of notice of Rule on behalf of respondent No.2. In the fact
and circumstances of the case and with the consent of learned
advocates appearing for respective
parties, petition is taken up for final hearing today.
[1.0] Present
petition under Article 227 of the Constitution of India has been
preferred by the petitioners – original opponents to quash and
set aside the impugned order dated 17.02.2011 passed by the learned
Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous
Application No.2/2011, by which the learned Sessions Judge has
directed to transfer the proceedings of Criminal Miscellaneous
Application No.826/2010 to the Court of learned 3rd
Additional Civil Judge and Additional Chief Judicial Magistrate,
Ahmedabad (Rural) to be heard with Special/Regular Civil Suit
No.570/2009.
[2.0] Shri Modi,
learned advocate appearing on behalf of the petitioners has
vehemently submitted that as such there was no reason whatsoever for
the learned Judge to transfer the proceedings under the Domestic
Violence Act to be heard alongwith civil suit filed by the landlord
which is to get the possession of the property in which the
petitioner No.1 and wife were residing. It is submitted that as such
an application was submitted at the time when the learned Judge was
hearing the Application No.826/2010 for dropping the proceedings and
exemption and the same was only at the stage of arguments on behalf
of respondent No.1 and at that stage respondent No.1 submitted the
application to transfer the case. It is further submitted that as
such the dispute/controversy in Domestic Application No.826/2010 has
nothing to do with the controversy in the Regular Civil Suit
No.570/2009 which was filed by the landlord to get the possession of
the property in question. Therefore, it is requested to allow the
present petition and to quash and set aside the impugned order.
[3.0] Shri
Kinariwala, learned advocate appearing on behalf of respondent No.1
has opposed the present petition by submitting that as it was
apprehended by respondent No.1 that the petitioner may surrender the
possession and/or may agree for consent decree affecting the rights
of respondent No.1, application was submitted to protect the right of
respondent No.1. It is submitted that if suitable observations are
made protecting the rights of respondent No.1, respondent No.1 may
not insist for transfer of proceedings to be heard with Regular Civil
Suit No.570/2009.
[4.0] Having
heard the learned advocates appearing for respective parties and
considering the facts narrated herein above, as such on apprehension
on the part of respondent No.1 that the petitioner may surrender the
possession to the landlord and agree for consent decree and
therefore, the proceedings under the Domestic Violence Act were
sought to be heard alongwith civil suit. On the aforesaid ground the
proceedings under the Domestic Violence Act are not required to be
heard with Civil Suit No.570/2009 filed by the landlord. It is to be
noted that as such respondent No.1 herself is a party to Regular
Civil Suit No.570/2009 and even if the petitioner tries to surrender
the possession and/or agree for consent decree, it will always be
open for respondent No.1 to oppose the same and/or contend that the
concession by the petitioner is not binding to her and the learned
trial Court is required to pass appropriate order in accordance with
law and on merits in Regular Civil Suit No.570/2009. Whatever the
concession is given by the petitioner will never bind respondent No.1
and it will be open for her to defend the suit independently as a
tenant/co-tenant which is required to be considered by the Court in
Regular Civil Suit No.570/2009 in accordance with law and on merits.
[4.1] In view of
the above observation and clarification, Shri Kinariwala, learned
advocate appearing on behalf of respondent No.1 does not invite any
further reasoned order while quashing and setting aside the impugned
order passed by the learned Sessions Judge transferring the
proceedings under the Domestic Violence Act. Hence, this Court is
not assigning any further reasoned order.
[5.0] In view of
the above and for the reasons stated above and with above
observations and clarifications with respect to rights of respondent
No.1, impugned order dated 17.02.2011 passed by the learned Sessions
Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application
No.2/2011 is hereby quashed and set aside and now the learned Chief
Judicial Magistrate, Ahmedabad (Rural) to proceed further with the
proceedings of Application No.826/2010 in accordance with law and on
merits, and without in anyway being influenced by the present order
and/or earlier order. Rule is made absolute accordingly.
(M.R.
Shah, J.)
*menon
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