DEEPAK KUMAR Vs. DISTRICT MAGISTRATE CUM APPELLATE TRIBUNAL

JUDGEMENT

(1.) This is a civil writ petition filed under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of certiorari for setting aside the impugned order dtd. 5/12/2019 (Annexure P-4) passed by respondent no.1 whereby the petition filed by respondent no.2 under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as "the 2007 Act") has been allowed.

(2.) Brief facts of the present case are that respondent no.2, who is the mother of petitioner no.1, had filed an application under Sec. 23 of the 2007 Act for evicting the petitioners from the house situated at Guru Arjan Dev Nagar, Piplanwali, District Hoshiarpur bearing khasra no.71//1 (6-0), 71//10 (8-0), 71//11/1 (5-10) measuring 5 marlas. It was specifically pleaded in the said application that respondent no.2 was 62 years of age and was also an exclusive owner of the property in question and the jamabandi with respect to the property in question was also annexed. It was further stated in the abovesaid application that respondent no.2 had no source of income and was physically and mentally weak and the petitioners, had on 23/4/2019, abused respondent no.2 and had thrown her out from the house in question and had thereafter even threatened respondent no.2 with dire consequences if she tried to enter the house in question, regarding which respondent no.2 had given an application to the SHO, Model Town, Hoshiarpur and a photocopy of the same was also annexed with the application for eviction. It was specifically pleaded in the application for eviction that the present petitioner no.1 was earning a handsome income as they were running a medical shop and thus, the maintenance to the tune of Rs.20,000.00 was also claimed by respondent no.2 in addition to the prayer for directing the petitioners to vacate the premises in question. A reply (Annexure P-2) was filed to the said application in which the fact that respondent no.2 was a senior citizen and was the mother of petitioner no.1 was not disputed. Even the fact that respondent no.2 was not residing with the petitioners and that there was a complaint filed by respondent no.2 before the SHO was also not disputed. The authorities under the Act, vide order dtd. 5/12/2019, allowed the said application and directed the petitioners to be evicted from the house in question. In the said order, it was observed that respondent no.2 was the owner of the property in question and there was a dispute between the parties which was apparent from the fact that respondent no.2 had given a complaint to the police department and there were other proceedings pending between the parties and the petitioners used to misbehave with respondent no.2 and were not providing for the basic needs of the respondent no.2. It is the said order, which has been challenged by the petitioners before this Court.

(3.) Learned counsel for the petitioners has submitted that in the present case, the petitioners had filed a civil suit (Annexure P-3) against respondent no.2 and the father of petitioner no.1 and other persons, for permanent injunction for restraining the defendants therein from dispossessing or interfering with the possession of the petitioners in the property in question and in the said plaint, a plea with respect to the oral family settlement had been taken. It is submitted that once the said civil suit is pending, the present application was not maintainable and should have been rejected on the said ground alone. It is further submitted that respondent no.2 had also filed a suit for mandatory injunction against the present petitioners seeking eviction from the house in question and the said civil suit is pending and thus, on the said ground also, the application filed by respondent no.2 under the 2007 Act is not maintainable. It is next argued that the order of eviction has been passed in the present case by an incompetent authority and as per the judgment of the Coordinate Bench of this Court in CWP-4744-2018 titled as "Simrat Randhawa vs. State of Punjab", decided on 23/1/2020, the authorities have no power to evict the licencee or any person living in the house and the LPA against the same has been filed and the same is pending. It is prayed that on the basis of said arguments, the impugned order deserves to be set aside and the application filed by respondent no.2 deserves to be rejected.