KAVITA AGGARWAL Vs. GYAN DEEPAK AGGARWAL

JUDGEMENT

(1.) THE challenge by means of this Regular Second Appeal is to the two concurrent judgments of the Courts below, the first dated 21.1.2011, and the second dated 25.5.2011, and by which judgments, the counter claim filed by the respondent No.1/husband was allowed directing the appellant/wife in the counter claim to hand over the physical possession of the premises bearing No. A-6, Urja Vihar, Mandawali, Delhi to the counter claimant/husband/respondent No.1 inasmuch the counter claimant wanted to surrender back these premises to his employer/respondent No.2, and which employer had given these premises on licence to the counter claimant. THE original suit was filed by the appellant/plaintiff claiming injunction against dispossession from the suit premises and which suit for injunction was dismissed. No appeal has been filed by the appellant against the judgment and decree dismissing her suit for injunction and therefore the same has become final. THE only issue which requires consideration in this Regular Second Appeal is as to whether the husband/respondent No.1 can be forced to continue to be the licencee of premises which he has got from his employer/respondent No.2. Putting it differently, can the husband/respondent No.1 not surrender the premises which he has obtained from his employer and can the appellant/respondent in the counter claim continue to forcibly and exclusively occupy the suit premises thereby preventing the respondent No.1/counter claimant from surrendering the possession back to the employer/respondent No.2.

(2.) THE respondent No.2/BSES has taken up a stand in the Courts below that since the possession of the licenced premises was given to the respondent No.1, it is the duty of the respondent No.1 to take possession from the appellant and till such possession is obtained by the respondent No.1 from the appellant/wife and surrendered back to the employer/BSES/respondent No.2, respondent No.2 will continue to deduct the HRA from the respondent No.1.

(3.) LEARNED counsel for the respondent No.1 has brought to my notice an order which has been passed by a learned Single Judge of this Court dated 28.10.2010 passed in C.M.(M) No.993/2008, and which was a petition filed by the appellant against the order passed under Section 24 of the Hindu Marriage Act,1955 in the divorce proceedings. By the order dated 28.10.2010, the learned Single Judge of this Court dismissed the petition and the operative portion of which order reads as under:-