Vaishali Abhimanyu Joshi vs Nansaheb Gopal Joshi

REPORTABLE

IN THE SUPFREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6448 OF 2017 (ARISING OUT OF SLP(C)NO.24045 OF 2016)

VAISHALI ABHIMANYU JOSHI ... APPELLANT

VERSUS

NANASAHEB GOPAL JOSHI ... RESPONDENT

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. This appeal raises an important question

pertaining to interpretation of Section 26 of the

Protection of Women from Domestic Violence Act, 2005

(hereinafter referred to as “Act, 2005”) qua the

Provincial Small Cause Courts Act, 1887(hereinafter to

referred to as “Act, 1887”) as amended in the State of

Maharashtra. The question is as to whether counter

claim by the appellant seeking right under Section 19 Signature Not Verified Digitally signed by of Act, 2005 can be entertained in a suit filed against NIDHI AHUJA Date: 2017.05.11 17:49:50 IST

her under Section 26 of Act, 1887 seeking a mandatory Reason:

injunction directing her to stop using the suit flat 2

and to remove her belongings therefrom.

3. This appeal has been filed challenging the

judgment dated 7th July, 2016 of High Court of

Judicature at Bombay in Writ Petition No.1550 of 2016

by which the writ petition filed by the appellant

questioning the judgment and order of 5 th Additional

Judge, Small Causes Court dated 5th November, 2014 and

order passed by the District Judge, Pune dated 17th

December, 2015 was dismissed.

4. Necessary facts of the case need to be noted for

deciding the issue raised are:

The appellant got married with one Abhimanyu who

is son of the respondent on 10.02.2000. The appellant

started residing in the suit flat No.4, 45/4, Arati

Society Shilavihar Colony, Paud Fata, Pune since 2004

alongwith her husband. The flat was alloted to the

respondent by the Society in the year 1971. On 13 th

June, 2011, the husband of appellant left her at the

suit flat and shifted to live with his parent at

Mrutunjay Society. A daughter, namely, Ishwari was born

from the wedlock of the appellant and the Abhimanyu, 3

who was about 9 years in the year 2014. The respondent

along with his wife had been residing in another flat

nearby. The appellant was treated with cruelty by her

husband and other members of the family. A suit for

divorce on the basis of cruelty being P.A.No. 23/2011

was filed by the appellant against her husband. A

notice was sent on behalf of the respondent to the

appellant on 23.01.2013 revoking the gratuitous licence

and asking the appellant to stop the use and occupation

of the suit flat. The appellant replied the notice. The

respondent filed Suit No.77/2013 in the Small Causes

Court, Pune seeking for following reliefs:

"A. By an order of mandatory injunction the defendant may be directed to stop the use and occupation of the suit flat and remove her belongings therefrom.

B. The defendant may be restrained by an order of perpetual prohibitory injunction from using/occupying the suit flat.

C. The defendant may be restrained by an order of perpetual prohibitory injunction from obstructing the plaintiff and his family members to possess, use and occupy the suit flat.

D. Interim orders in terms of clause A,B,C above may be passed.

4 E. Costs of the suit may be awarded to the plaintiff from the defendant.

F. Any other just and other equitable orders in the interest of justice may please be passed.”

5. The appellant filed a written statement in the

suit pleading that she was residing in the suit flat

since 26.01.2004 along with her husband and daughter.

Her husband who was also residing along with her left

her on 13.06.2011 to live with the respondent. It was

pleaded that suit flat was intended to be used by the

joint family as a joint family property and although

the agreement of purchase of the suit flat bears the

name of the respondent, the suit flat has been used as

joint family property. The allegation that respondent

is the sole owner of the flat was denied. In her

written statement a counter claim was also laid by the

appellant. In the counter claim following reliefs have

been claimed by the appellant:

"i. The suit & injunction application at Exh.5 of the plaintiff may kindly be dismissed with heavy costs.

ii. It may be declared that the suit flat is the shared 5

household.

iii. The plaintiff, his agents, representatives, relatives or anyone claiming through him may kindly be restrained by an injunction from dispossessing, disturbing the possession of the defendant in any manner from the suit flat, as per S.19 of D.V. Act.

iv. The plaintiff, his agents, representatives, relatives or anyone claiming through him may kindly be restrained by an injunction from entering in the suit flat as per S.19 of DV Act.

v. The plaintiff, his agents, representatives, relatives or anyone claiming through him may kindly be restrained by an injunction from alienating, disposing off, encumbering the suit flat and/or creating any of third party right, title and interest in the suit flat, or renouncing the rights in the suit flat as per S.19 of DV Act.

vi. Any other order in the interest of justice and equity may kindly be passed in favour of the defendant and oblige.”

6. In the counter claim the appellant prayed for

an order of residence in suit flat under Section

19 of the Act, 2005.

6

7. The respondent who was the plaintiff in the

suit has filed an application dated 14.07.2014

under Section 9A(Maharashtra Amendment) of the

Code of Civil Procedure, 1908. In the application,

the respondent claimed that declaration sought by

the appellant in the suit is not maintainable,

hence, a preliminary issue under Section 9A of CPC

be framed. The application was objected by the

appellant by filing objection on 16.08.2014. The

appellant claimed that since she has been

subjected to domestic violence she is entitled for

the reliefs sought by way of counter claim as

provided in the Act, 2005. It was contended that

the reliefs sought by way of counter claim are not

barred as per Section 15 of Act, 1887. The trial

court framed preliminary issue “as to whether the

Court has jurisdiction to entertain the counter

claim”. Judge Small Causes Court by its judgment

and order dated 05.11.2014 held that Court has no

jurisdiction to entertain the counter claim.

Revision was filed against the order passed by the

Small Causes Court before the District Judge. The 7

District Judge rejected the revision on 17.12.2015

which order was challenged by the appellant by

means of writ petition which has been dismissed by

judgment dated 07.07.2016. The High Court has held

that in view of the express language in Section 15

as also the Second Schedule of Act, 1887, the

Small Causes Court constituted under Act, 1887

cannot entertain and try the counter claim.

Aggrieved by the order of the High Court, the

appellant has come up in this appeal.

8. We have heard Shri Nikhil Majithia, learned

counsel for the appellant and Shri Vinay Navare,

learned counsel for the respondent.

9. Shri Nikhil Majithia, learned counsel for the

appellant submitted that courts below erred in law

in taking the view that counter claim of the

appellant is barred by the Act, 1887. He submits

that Act, 2005 is a special Act which has been

enacted to provide various remedies and the

special Act shall have overriding effect over Act,

1887. He submits that courts below erred in law 8

in not adverting to this aspect of the matter.

Learned counsel has further placed reliance on

Section 3(c) of the Act, 1887. It is submitted

that Section 3(c) itself saves applicability of

local law or any special law and the Act, 2005

being a special law it will have to be given full

effect and Section 3(c) itself carves out an

exception. It is submitted that in the event of

conflict between a general statute and a special

statute, special statutes always have overriding

effect on a general statute. He further submits

that even if both are treated to be a special

statute, latter in point of time shall override

the Act, 1887 and he further referring to the

Section 26 of Act, 2005 contends that a relief

under Sections 18 to 22 of Act, 2005 can be sought

in any legal proceeding before a Civil Court,

Family Court and Criminal Court. He submits that

Court of Provincial Small Cause being a civil

Court remedy under Section 26 is fully available

to the appellant.

9

10. Shri Vinay Navare, learned counsel for the

respondent refuting the submission of learned

counsel for the appellant contends that counter

claim of the appellant is clearly barred by

Section 15 read with Schedule II of the Act, 1887.

He has referred to Item Nos.11, 17 and 19. He

submits that Provincial Small Cause Court is a

Court which has limited jurisdiction. Referring to

provisions of Order L of Civil Procedure Code he

submits that only limited provisions of Civil

Procedure Code have been made applicable which

indicates that no substantive issue can be decided

by Provincial Small Cause Court. Learned counsel

further made reference to Section 12 and Section

18 of Act, 1887 by which, according to him, the

Registrar, who is a Chief Ministerial Officer of

the Court, is empowered to try certain suits which

the Judge, Provincial Small Cause Court by

general or special order directs. He submits that

power given to Registrar to decide certain issues

also militate against the idea that substantive

issues can be decided by a Judge, Small Causes 10

Court.

11. Learned counsel for the parties relied on

various decisions of this Court and Bombay High

Court which shall be referred to while considering

submissions in detail.

12. We have considered the above submissions of

the parties and perused the record.

13. As noted above, the only question to be

answered in this appeal is as to whether the

counter claim filed by the appellant seeking right

of residence in accordance with Section 19 of Act,

2005 in a suit filed by the respondent, her

father­in­law under the Provincial Small Cause

Courts Act, 1887 is entertainable or not. Whether

the provisions of the Act, 1887 bar entertainment

of such counter claim, is the moot question to be

answered. The Provincial Small Cause Courts Act,

1887 was enacted to consolidate and amend the law

relating to Courts of Small Causes established

beyond the Presidency­towns. Under Section 5, the

State Government is empowered to establish Court 11

of Small Causes. Section 15 deals with

jurisdiction of Court of Small Causes. Section 15

which is relevant for the present purposes is

extracted below:

“Section 15. Cognizance of suits by Courts of Small Causes.—

(1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits expected from the cognizance of a Court of Small Causes.

(2) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes.

(3) Subject as aforesaid, the [State Government] may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order.”

14. Section 17 provides that the procedure

prescribed in the Civil Procedure Code, shall save

in so far as is otherwise provided by that Code or

by 1887 Act, be the procedure followed in a Court

of Small Causes, in all suits cognizable by it and

and in all proceedings arising out of such suits. 12

15. Section 23 provides for return of plaint in

suits involving questions of title. Section 15

refers to Schedule II. Schedule II enumerates the

category of suits which are excepted from the

cognizance of Court of Small Causes. For the

purposes of this case Item Nos.4, 11, 17 which may

be relevant for the present case are extracted

below:

“(4) a suit for the possession of immoveable property or for the recovery of an interest in such property;

(11) a suit for the determination or enforcement of any other right to or interest in immoveable property;

(17) a suit to obtain in injunction;”

16. The submission which has been pressed by the

learned counsel for the respondent is that the

High Court for holding that Judge, Small Causes

Court has no jurisdiction has relied on Section 15

read with clause (11) of Second Schedule. In

paragraph 14 of the judgment, the High Court gives

the following reasoning for deciding against the 13

appellant:

“14. As noted earlier, clause(11) of the Second Schedule of P.S.C.C. Act which is one of the excepted categories does not empower the Small Causes Court to entertain and try the suit for the determination or enforcement of any other right to or interest in immovable property. In the counter claim the defendant has prayed for residence orders as provided in Section 19 of D.V. Act as also for declaration that the suit flat is the shared household as per section 2(s) of D.V. Act and also for injunction restraining the plaintiff (i) from dispossessing her from the suit flat and disturbing her possession in any manner in the suit flat, (ii) from entering suit flat, and (iii) from creating third party interest as per Section 19 of D.V. Act. It is not in dispute and cannot be disputed that the counter claim is to be tried as a suit. The defendant seeks determination or enforcement of her right or interest in the suit flat i.e. immovable property. In view thereof, counter claim set up by the defendant cannot gone into by the Small Causes Court in view of express language of Section 15 and Second Schedule of P.S.C.C. Act. If the contention of Mr. Kulkarni is accepted, it will enlarge the jurisdiction of Small Causes Court and the same will be contrary to mandate of Section 15 and Second Schedule of P.S.C.C. Act.”

17. The Protection of Women from Domestic Violence

Act, 2005 has been enacted to provide for more

effective protection of the rights of women

guaranteed under the Constitution who are victims

of violence of any kind occurring within the 14

family and for matters connected therewith or

incidental thereto. Act, 2005 was enacted by the

Parliament to give effect to various international

conventions. One of us (A.K. Sikri,J.) had

occasion to consider the purposes of enacting the

Act, 2005 in Kunapareddy alias Nookala Shanka

Balaji vs. Kunapareddy Swarna Kumari and anotehr,

(2016) 11 SCC 774. In paragraph 12 of the judgment

following has been stated:

“12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality. In order to demonstrate it, we may reproduce the introduction as well as relevant portions of the Statement of Objects and Reasons of the said Act, as follows:

15 “Introduction The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code. In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society the Protection of Women from Domestic Violence Bill was introduced in Parliament.

Statement of Objects and Reasons

1. Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.

* * *

3. It is, therefore, proposed to enact 16

a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

4. The Bill, inter alia, seeks to provide for the following— * * *

(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.”

18. Section 17 provides for right to reside in a 17

shared household by aggrieved person. Section 18

empowers the Magistrate to pass protection orders

of different categories as enumerated in section

itself. Section 19 provides for passing of a

residence order in favour of an aggrieved person

who is subjected to domestic violence.

19. Section 26 of the Act is a special provision

which has been enacted in the enactment. Although,

Chapter IV of the Act containing Section 12 to

Section 29 contains the procedure for obtaining

orders of reliefs by making application before the

Magistrate whereas steps taken by the Magistrate

and different categories of reliefs could be

granted as noted in Section 18 to 22 and certain

other provisions. Section 26 provides that any

relief available under Section 18 to 22 may also

be sought in any legal proceedings, before a civil

court, family court or a criminal court, affecting

the aggrieved person and the respondent. Section

26 is material for the present case since the

appellant has set up her counter claim on the

basis of this Section before the Judge, Small 18

Causes Court. Section 26 is extracted below:

“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 sub-section (1) may be sought for in addition to and along with any other relief that the 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.”

20. There cannot be any dispute that proceeding

before the Judge, Small Causes Court is a legal

proceeding and the Judge, Small Causes Court is a

civil court. On the strength of Section 26 any

relief available under Section 18 to 22 of Act,

2005, thus, can also be sought by the aggrieved

person.

21. Order VIII Rule 6A provides for counter claim

by defendant. Order VIII Rule 6A of CPC is quoted 19

below:

“6A. Counter claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set off under rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of to suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not:

Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the court.

(2) Such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the court.

(4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints.”

22. Order L of CPC enumerates the provisions which

shall not extend to the Provincial Small Cause

Court. The provisions which have been excepted 20

from applicability of the Small Causes Court do

not include Order VIII, thus, counter claim can

very well be filed by the defendant in a suit

before the Small Causes Court.

23. We have noted above the reasons given by the

High Court holding that Provincial Small Cause

Court cannot entertain the counter claim filed by

the defendant who is appellant before us.

24. The High Court refers to Item No.11 of Second

Schedule which is “a suit for the determination or

enforcement of any other right to or interest in

immovable property”. It appears that the High

Court had taken the view that the right under

Section 26 of Act, 2005 as claimed by the

appellant involves the determination or

enforcement of any right to or interest in

immovable property.

25. The Act, 1887 has been amended in the State of

Maharashtra by Maharashtra Act 24 of 1984 w.e.f.

1.1.1985. Chapter IVA has been inserted in Act,

1887 containing Section 26, 26A, 26B and 26C. 21 Section 26 is quoted as below:

“26. Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except those to which other Acts apply, to lie in Court of Small Causes.—

(1) Notwithstanding anything contained elsewhere in this Act, but subject to the provision of sub­section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between in licensor and licensee, or a landlord and tenants, relating to the recovery of possession of any immovable property situated in the area within the local limits of the jurisdiction of the Court of Small Causes, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.

(2) Nothing contained in sub­section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Provincial Municipal Corporations Act, 1919 or the Maharashtra Housing and Area Development Act, 1976, or any law for the time being in force, apply.” 22

26. Section 26 sub­Section (1) begins with

“notwithstanding anything contained elsewhere in

this Act”. In the suit which was filed by the

respondent before the Judge, Small Causes Court,

the plaintiff (respondent herein) has claimed

himself to be licensor and appellant as gratuitous

licensee. In paragraph 9 of the plaint following

has been pleaded by the plaintiff:

“9. The Plaintiff submits that the Defendant has falsely stated in the Marriage petition bearing PA No.23/2011 that she is in actual and physical possession of the suit flat even though she has been in use of the suit flat only as a gratuitous licensee. The plaintiff through his advocate served a notice to the Defendant on 23.01.2013, revoking the gratuitous license and asking the Defendant to stop the use and occupation of the suit flat...”

27. Although the relief which has been claimed by

the plaintiff does not specifically contain any

relief regarding recovery of possession from the

appellant but the reliefs sought for indicate that

the appellant is sought to be restrained from

using the suit flat.

23 28. It is relevant to note that Item No.4 of

Second Schedule which included “a suit for the

possession of immovable property or for the

recovery of an interest in such property” had been

deleted by Maharasthra Act 24 of 1984. Section 26

begins with 'non obstante' clause which shall

override all contrary provisions contain in Act,

1887. Maharasthra Act 24 of 1984 has been brought

by inserting Section 26 and by deleting Item No.4

of Second Schedule only to make suit between

licensor and licensee to be filed before the

Judge, Small Causes Court. The suit filed by the

plaintiff is virtually a suit for possession of

the suit flat from the appellant who is occupying

the same. Plaintiff alleged in the plaint that the

gratuitous licence of the appellant has been

terminated on 23.01.2013, hence, appellant is not

entitled to use the flat and is liable to remove

her belongings.

29. “Notwithstanding anything contained elsewhere

in this Act” as used in Section 26(1) of Act, 1887

are words of expression of the widest amplitude 24

engulfing the contrary provisions contained in the

Act. The suit in question has been filed by the

plaintiff for enforcement of his right as a

licensor after allegedly terminating the

gratuitous licence of the appellant. On a plain

reading Item No.11 of Schedule II covers

determination or enforcement of any such right or

interest in immovable property. But by virtue of

Section 26 sub­Section (1) as applicable in State

of Maharasthra, Item No.11 of Schedule 2 has to

give way to Section 26(1) and a suit between

licensor and licensee which is virtually a suit

for recovery of immovable property is fully

maintainable in Judge, Small Causes Court that is

why the suit has been instituted by the plaintiff

in the Judge, Small Causes Court claiming the

right and interest in the immovable property.

30. When the suit filed by the plaintiff for

determination or enforcement of his right as a

licensor can be taken cognizance by Judge, Small

Causes Court we fail to see that why the relief

claimed by the appellant in the Court of Small 25

Causes within the meaning of Section 26 of Act.

2005 cannot be considered by the Judge, Small

Causes Court. In facts of the present case, the

bar and embargo under Item No.11 of Schedule II

read with Section 15 of Act, 1887 stand whittled

down and engulfed by virtue of Section 26

sub­Section (1) as applicable in Maharashtra.

31. A statutory provision containing non obstante

clause has to be given full effect. This Court in

Union of India and another vs. G.M. Kokil and

others, 1984 (Supp) SCC 196 has laid down in

paragraph 11 as below:

“11. ...It is well-known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, “notwithstanding anything contained in that Act” must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act...”

32. Learned counsel for the appellant has placed 26

reliance on a judgment of the Bombay High Court in

Writ Petition No.5648 of 2015, Ambreen Akhoon vs.

Aditya Aurn Paudwal and Ors. Decided on 4th August,

2015. The issue which was involved in the said

case has been noted in paragraph 2 which is to the

following effect:

"2.This Writ Petition involves a question of law as to whether any relief can be sought against the relative of the respondent husband in the proceedings filed under Section 26 of the Protection of Women from Domestic Violence Act before the Family Court ?”

33. After considering the provisions of Act, 2005

and certain precedents, the Bombay High Court has

laid down following in paragraph 18:

"18. As a question of law is raised before this Court, the Court has restricted its finding only to that extent and answered that the relatives of the husband being respondents under Section 2(q) of the D V Act can be made party respondents before the Family Court if the proceedings specified under Section 26 of the D.V. Act are preferred.”

34. In the present case, the issue which is raised

is entirely different and pertains to the

jurisdiction of Small Causes Court to entertain 27

counter claim filed by the appellant seeking an

order of residence. The above judgment is not

relevant for answering the issue raised in the

present case.

28

35. Learned counsel for the appellant has placed

reliance on judgments of this Court in Allahabad

Bank vs. Canara Bank, 2000(4) SCC 406; Solidaire

India Ltd. vs. Fair Growth Financial Services Ltd.

& ors., 2001 (3) SCC 71 and Bank of India vs.

Ketan Parekh, 2008 (8) SCC 148 for the proposition

that a special Act overrides a general Act and

when a conflict is found in two special Acts, the

special Act latter in point of time has to

prevail. He further contends that dominant purpose

of the Act has to be looked into while deciding

the question as to which of the Act shall prevail

over other. In the facts of the present case

especially Section 26 as inserted in the State of

Maharashtra by Maharasthra Act 24 of 1984, it is

not necessary to enter into the issue of

conflict between Act, 1887 and Act, 2005. We have

already observed above that the suit in the

nature of present suit was cognizable before the

Judge, Small Causes Court, hence, in the said suit

determination of claim of the appellant seeking a

right of residence under Section 19 is also not 29

excluded from consideration. It is further to be

noted that Act, 2005 was enacted to secure a

social purpose. The provisions of the Act have to

be construed widely. This Court in Hiral P.

Harsora and others vs. Kusum Narottamdas Harsora

and others, 2016 (10) SCC 165 had occasion to

consider the ambit and scope of Act, 2005. In

paragraph 25 following has been stated by this

Court:

“25. When we come to Section 26 of the Act, the sweep of the Act is such that all the innovative reliefs available under Sections 18 to 22 may also be sought in any legal proceeding before a civil court, family court or criminal court affecting the aggrieved person and the respondent. The proceeding in the civil court, family court or criminal court may well include female members of a family, and reliefs sought in those legal proceedings would not be restricted by the definition of “respondent” in the 2005 Act. Thus, an invidious discrimination will result, depending upon whether the aggrieved person chooses to institute proceedings under the 2005 Act or chooses to add to the reliefs available in either a pending proceeding or a later proceeding in a civil court, family court or criminal court. It is clear that there is no intelligible differentia between a proceeding initiated under the 2005 Act and proceeding initiated in other fora under other Acts, in which the self-same reliefs grantable under this Act, which are restricted to an adult male person, 30

are grantable by the other fora also against female members of a family...” 31

36. Section 26 of the Act, 2005 has to be

interpreted in a manner to effectuate the very

purpose and object of the Act. Unless the

determination of claim by an aggrieved person

seeking any order as contemplated by Act, 2005 is

expressly barred from consideration by a civil

court, this Court shall be loath to read in bar in

consideration of any such claim in any legal

proceeding before the civil court. When the

proceeding initiated by plaintiff in the Judge,

Small Causes Court alleged termination of

gratuitous licence of the appellant and prays for

restraining the appellant from using the suit flat

and permit the plaintiff to enter and use the

flat, the right of residence as claimed by the

appellant is inter­connected with such

determination and refusal of consideration of

claim of the appellant as raised in her counter

claim shall be nothing but denying consideration

of claim as contemplated by Section 26 of the Act,

2005 which shall lead to multiplicity of

proceeding, which can not be the object and 32

purpose of Act, 2005.

37. We, thus, are of considered opinion that the

counter claim filed by the appellant before

Judge, Small Causes Court in Civil Suit NO.77 of

2013 was fully entertainable and courts below

committed error in refusing to consider such

claim.

38. We, however, make it clear that we have

neither entered into the merits of the claim of

the appellant nor shall be understood to have

expressed any opinion on the claim either way and

the merits of the claim has to be considered by

the court in accordance with law.

39. In the result, the appeal is allowed, the

judgment of the High Court dated 07.07.2016,

judgment and order dated 05.11.2014 of 5th

Additional Judge, Small Causes Court, Pune and

judgment dated 17.12.2015 of the District Judge,

Pune are set aside. It is held that counter claim

filed by the appellant in Civil Suit No.77 of 2013

is fully entertainable by Judge, Small Causes 33

Court and needs to be considered in accordance

with law.

...........................J. ( A.K. SIKRI )

...........................J. NEW DELHI, ( ASHOK BHUSHAN ) MAY 09, 2017.

34

ITEM NO.1E COURT NO.7 SECTION IX (For judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

C.A. No.6448 of 2017

(Arising out of SLP (C) No. 24045 of 2016)

(Arising out of impugned final judgment and order dated 07/07/2016 in WP No. 1550/2016 passed by the High Court of Bombay)

VAISHALI ABHIMANYU JOSHI ... Appellant(s)

VERSUS

NANASAHEB GOPAL JOSHI ... Respondent(s)

Date : 09/05/2017 This matter was called on for pronouncement of judgment today.

For Petitioner(s) Mr. Nikhil Majithia, Adv.

For Respondent(s) Ms. Abha R. Sharma, Adv.

Hon'ble Mr. Justice Ashok Bhushan pronounced the judgment of the Bench comprising Hon'ble Mr. Justice A. K. Sikri and His Lordship.

Leave granted.

The appeal is allowed in terms of the signed reportable judgment.

(Nidhi Ahuja) (Mala Kumari Sharma) Court Master Court Master

[Signed reportable judgment is placed on the file.]