(1.) Rule, returnable forthwith. Heard finally by consent of the parties.
(2.) By this petition, the petitioner who is wife of the respondent, challenges the order dated 21.9.1997 passed by the Family Court at Pune, directing both husband and wife to reside separately and directing the petitioner to reside in her own flat at Pashan along with the children and restraining her from entering in the flat in question, situated at Kotharud. The learned counsel appearing for the petitioner produced a leave and licence agreement dated 1st of May 1997, whereby the petitioner's flat is given on leave and licence to M/s. Thermax Limited. Therefore, according to the petitioner her flat at Pashan is not available to her for occupation. She submitted that she does not have any other place where she can reside.
(3.) Learned counsel for the respondent, on the other hand submitted that this document, namely, the leave and licence agreement dated 1.5.97, was not produced before the trial court. It is true that the said document was not produced by the petitioner before the trial court. However, she had made a claim before the trial court that the flat is not available to her. The basic assumption on which the order is passed by the trial court is that the flat at Pashan, which is owned by the petitioner, is available to the petitioner. The document dated 1st of May 1997 creates some doubts about that assumption. Therefore, in my opinion, it would be in the interest of justice to set aside the order dated 21.9.1997 impugned in this petition and remand the matter/ application back to the family Court for deciding only the question - as to whether the flat at Pachan is available to the petitioner for her immediate occupation. The trial court may permit the parties to lead oral and documentary evidence that the parties may desire to lead for deciding the above referred question. The trial court shall hear and dispose of this application as expeditiously as possible in any case within two months from the date on which the trial court receives the writ of this order.