any act of domestic violence by the respondent;
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(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
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(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
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(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 5 a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
"XXXXXX XXXXXX XXXXXX Section 17 - Right to reside in a shared household (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the Right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
Section 19 - Residence orders (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order -
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person. (3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence. (4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973(2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 6 police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order. (6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties. (7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.
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9. The primary intention in enacting the Act apparently was to secure to a woman living in matrimony or in a relationship akin to matrimony, or any domestic relationship, various rights. Domestic violence, interestingly is, per se, not a criminal offence but is defined extensively and comprehensively to include various conditions. The woman exposed to such domestic violence is given the right to move the Court for any of the reliefs outlined in Section 12 through either a comprehensive proceeding, claiming maintenance, the right to residence, compensation etc. or even move the Court seized of any other pending proceeding, such as divorce and maintenance etc. (Section 26). Section 17 has, for the first time, enacted a right to residence in favor of such women. The enactment being a beneficial one, the approach of the Court always has to be to uphold the parliamentary intention and give it a liberal interpretation rather than confining it, which would inevitably lead to defeating the object of the law. Significantly, as noticed earlier, domestic violence is per se not an offence but its incidence or occurrence enables a woman to approach the Court for multifarious reliefs. Now the Court is empowered to grant ex-parte relief and ensure its compliance, including by directing the police authorities to implement the order, particularly those relating to residence etc. If such an order is violated, by the respondent (which is defined in the widest possible terms, to include female relatives of the husband or the male partner etc), such action would constitute a punishable offence, which can be tried in a summary manner under Section 31 of the Act.
10. The facts narrated previously do not show any dispute that Eveneet married Prashant; the latter claims to have given-up his job in the United States sometime in 2008-09 and he moved into the suit property. The couple got married on 27.04.2009; Prashant claims that on account of I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 7 his mother‟s ill health and her wishes that they ought to move out, he took-up separate residence in January 2010. The kingpin of Kavita‟s arguments - as also of Prashant, and indeed the entire basis for Suit No. 505/2010 is that the suit premises are exclusively owned by Kavita and that it is not a shared household. The further argument is that Prashant and consequently Eveneet being mere licensees, (although related to Kavita, as son and daughter-in-law), have no legal right to live in the premises even though it might have been their matrimonial home at some point of time but was never their shared household. Heavy reliance is placed upon Batra (supra); it would be, therefore, first necessary to analyze that ruling and then proceed to see whether Eveneet has any rights under the Act, as claimed by her and to what extent she would be entitled. In Batra the marriage between the parties had been solemnized in April 2000; somewhere in 2002-03, the husband filed a divorce petition; the wife claimed to have been treated cruelly by him and complained of offence having been committed under Section 498A IPC. She also filed a suit in 2003 for mandatory injunction to enable her to enter the house, which was allegedly locked. In a temporary injunction application, the trial Court held that the wife was in possession of a portion of the property, and restrained the husband and the mother-in-law from interfering with the possession. In the interlocutory appeal, the appellate Court held that the wife was not residing in the premises and that the husband too was not living in the property. He further held that the wife could not claim any right in the property. The wife further petitioned under Article 227 to the High Court; its judgment was appealed against by the mother-in-law. This much is evident from a reading of paras 4 to 10 of the judgment. It is evident, therefore, that the wife had never claimed that the parties rights were regulated by the Domestic Violence Act, which was not enacted at the time when the cause of action had arisen. The Court went to observe that the wife, under the circumstances, could not claim possession since the ownership was of her mother-in- law, in paras 11 to 14 of the judgment. The ratio of the judgment is discernable in para 13 which states that there is no law in India, like the British Matrimonial Homes Act, 1967, enabling the wife to claim rights in the property belonging to the property of another. The analysis of various provisions of the Domestic Violence Act, therefore, did not arise for consideration for judgment by the Supreme Court. Nevertheless, at the invitation of wife‟s counsel and on the basis of submissions, the Court proceeded to analyze the provisions and observed as it did, particularly in the context of Sections 2(s) and 17 and 19, that mere sharing of a household in the sense of the parties living together in same premises would not constitute such property as a shared I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 8 household. The observations of the Supreme Court in Batra (supra) to the extent relevant are extracted below:
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15. Learned Counsel for the respondent then relied upon the Protection of Women from Domestic Violence Act, 2005. He stated that in view of the said Act respondent Smt. Taruna Batra cannot be dispossessed from the second floor of the property in question.
16. It may be noticed that the finding of the learned Senior Civil Judge that in fact Smt. Taruna Batra was not residing in the premises in question is a finding of fact which cannot be interfered with either under Article 226 or 227 of the Constitution. Hence, Smt. Taruna Batra cannot claim any injunction restraining the appellants from dispossessing her from the property in question for the simple reason that she was not in possession at all of the said property and hence the question of dispossession does not arise.
17. Apart from the above, we are of the opinion that the house in question cannot be said to be a 'shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'Act').
Section 2(s) states:
"Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
19. Learned Counsel for the respondent Smt. Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household We cannot agree with this submission
20. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 9 household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned Counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.
It is well settled that any interpretation which leads to absurdity should not be accepted.
21. Learned Counsel for the respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's in-laws or other relatives.
22. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member, it is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a 'shared household'.
23. No doubt, the definition of 'shared household' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.
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11. The key to an understanding of the rights flowing from the Domestic Violence Act, are concepts such as „domestic relationship‟ - which inter alia, is "a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage..."; who is a „respondent‟ - a term not confined only to males who had lived with the aggrieved person, i.e. the complainant female, but also - by virtue of proviso to Section 2(q) to "a relative of the husband..." (in the case where the domestic relationship is or was a marriage). This aspect has been noticed, and clarified in several rulings by various High Courts (Ref Afzalunnisa Begum v. The State of A.P., 2009 Cri.L.J. 4191;
I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 10 Archana Hemant Naik v. Urmilaben Naik, 2010 Cri.L.J. 751 and Varsha Kapoor v. Union of India, WP (Crl.) No. 638 of 2010, Decided on: 03.06.2010, by a Division Bench of this High Court). It has been held that when a law uses the same word in different parts of the same statute, there is a presumption that that it is used in the same sense throughout (Suresh Chand v. Gulam Chisti, (1990) 1 SCC 593), unless the context indicates otherwise (Bhogilal Chunnilal Pandya v. State of Bombay, 1959 Supp (1) SCC 593). Now, the relevant part of Section 19 reads as follows:
"19. Residence orders.-(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order -
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household...."
(emphasis supplied) The broad and expansive nature of the Court‟s power to make a residence order is also underlined by the amplitude of the definition of "shared household", which is "where the person aggrieved lives or at any stage has lived
(i) in a domestic relationship
(ii) either singly or along with the respondent and includes such a household
(a) whether owned or tenanted either jointly by the aggrieved person and the respondent, or
(b) owned or tenanted by either of them
(iii) in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes
(iv) such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household."
It is thus apparent that Parliamentary intention was to secure the rights of aggrieved persons in the shared household, which could be tenanted by the respondent (including relative of the husband) or in respect of which the respondent had jointly or singly any right, title, interest, or "equity". For instance, a widow living with a mother-in-law, in premises owned by the latter, I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 11 falls within a "domestic relationship"; even if the mother-in-law does not have any right, title or interest, but is a tenant, or entitled to "equity" in those premises, the same would be a "shared household". In such circumstances, the widowed daughter-in-law, can well claim protection from dispossession, notwithstanding that her husband never had any ownership rights, in the premises, because she lived in it; if the mother-in-law, is a tenant, then, on the ground that she is tenant, or someone having equity. It may, however, be noticed here that Section 19, while referring to a „respondent‟, lays down a limited exception under the proviso to 19(1)(b), exempting women from being directed to remove themselves from the shared household. However, no such exception has been carved out for the other reliefs under Section 19, especially in respect of protection orders. Clearly, if the legislature had wanted to create another exception in favor of women, it could have done so. The omission here, seems deliberate and in consonance with the rest of the scheme of the Act. Another instance of a domestic relationship may be an orphaned sister, or widowed mother, living in her brother‟s or son‟s house; it falls within the definition of domestic relationship, (which is one where the parties are related by consanguinity, or marriage) constitutes a shared household, as the brother is clearly a respondent. In such a case too, if the widowed mother or sister is threatened with dispossession, they can secure reliefs under the Act, notwithstanding exclusive ownership of the property, by the son or brother. Thus, excluding the right of residence against properties where the husband has no right, share, interest or title, would severely curtail the extent of the usefulness of the right to residence. This was noted by the Bombay High Court in Archana Hemant Naik (supra) in the following terms:
" If a wife or a woman to whom the proviso is applicable is compelled to seek residence order in respect of a shared household only as against the male relatives of her husband or male partner, as the case may be, the order under Section 19 of the said Act will be completely ineffective in as much as the female relatives of the husband or the male partner occupying the shared household will continue to disturb possession of such wife or such female of the shared household, or may continue to prevent entry of such aggrieved wife or female to the shared household." (emphasis supplied)
12. The Domestic Violence Act is a secular legislation, akin to Section 125 of the Code of Criminal Procedure, 1973. It was enacted "to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family". The introduction of the remedy of right to residence is a revolutionary and path breaking step, taken to further the objects of the Act, and any attempt at restricting the scope of the remedy would reduce the effectiveness of the Act itself. Therefore, it would be contrary to I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 12 the scheme and the objects of the Act to restrict its application to only such cases where the husband owns some property or has a share in it, as the mother-in-law can also be a respondent in the proceedings under the Domestic Violence Act and remedies available under the same Act would necessarily need to be enforced against her.
13. Again, to confine the reference to "joint" family property by bringing in the concept of a HUF would be to restrict the application of the provision, to a point which is contrary to Parliamentary intention that the law is a non-sectarian one. The "joint" status of a family here obviously is in a generic sense, and importing notions of HUF would unwittingly give greater benefits to one section of the community, which was never the intention of Parliament. In a generic sense, it refers to a group of people, related either by blood or marriage, residing in the same house and instances of that can be found in almost all parts of India. The general practice in India is that the son and his wife reside in the house of the (husband‟s) parents after marriage. Even though a legal obligation to maintain a child ceases as soon as he attains majority, the jural relationship between the parents and the child continues. The concept of a "joint family" in law is peculiar to Hindu law. No concept of a „joint family‟ similar to that of an HUF can be found in Muslim Law, Christian Law or any other personal law.
14. The danger of accepting a restricted interpretation of joint family by equating it to a HUF would result in discrimination, because women living in a shared household belonging to HUFs (and therefore Hindus) would have more security, by reason of their professing the Hindu faith than others who are not Hindus. Also, even among Hindus, women who are married into or live in HUFs, as compared with those living with husbands, whose parents own the property - on an application of Batra - would have the protection of the Act; the latter would not have any protection. It is precisely to avoid this anomaly that Parliament clarified that irrespective of title of the "respondent" to the "shared household", a protection order can be made under Section 19 (1) (a).
15. The definition of "shared household" emphasizes the factum of a domestic relationship and no investigation into the ownership of the said household is necessary, as per the definition. Even if an inquiry is made into the aspect of ownership of the household, the definition casts a wide enough net. It is couched in inclusive terms and is not in any way, exhaustive (S. Prabhakaran v State of Kerala, 2009 (2) RCR (Civil) 883). It states that "...includes such a I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 13 household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household" (emphasis supplied).
16. It would not be out of place to notice here that the use of the term "respondent" is unqualified in the definition nor is there any qualification to it under Sections 12, 17 or 19. Therefore, there is no reason to conclude that the definition does not extend to a house which is owned by a mother-in-law or any other female relative, since they are encompassed under the definition of „respondent‟ under Section 2(q).
17. Decisions of the Supreme Court are authoritative, more so when High Courts have to deal with the same statute. Equally, it is settled law that a decision is authority for what it says, and the contextual setting, as well as the statutory provisions, and their interpretation, as emerging from the ruling, which invests it with precedential value. For this reason, it has been ruled by the Supreme Court, in several judgments, that a judgment is not to be read as a statute, since the factual matrix is also important (Ref. to Sarat Chandra Mishra v State of Orissa, (2006) 1 SCC 638, Ramesh Chand Daga v Rameshwari Bai, (2005) 4 SCC 772, P.S. Sathappan v Andhra Bank Ltd., (2004) 11 SCC 672). In Batra, the dispute did not emerge or emanate from any provisions of the Domestic Violence Act; indeed, the cause of action preceded the coming into force of the enactment. Secondly, the wife was not in possession or an occupant of the property, which is a crucial factual aspect that distinguishes it from the facts of this case. Thirdly, the Court did not have the benefit (or the occasion) to consider the definition of "respondent"; "domestic relationship" and explore the link between those two vital concepts, on the one hand, and the definition of "shared household", as well as the remedy under Section 19 - both of which reinforce the irrelevance of the respondent‟s title or interest in the shared household property (in Section 2(s) it is "irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household..."; in Section 19 it is articulated as "whether or not the respondent has a legal or equitable interest in the shared household...."
I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 14
18. This Court notices further that Batra has been distinguished by the Madras High Court in P. Babu Venkatesh v. Rani, (Crl. R.C. Nos. 48 and 148 of 2008 and M.P. Nos. 1 of 2008, Decided On: 25.03.2008, Madras High Court); the petitioner there alienated his property, in which the aggrieved person had sought residence, in favor of his mother, in order to fall within the ambit of the Batra dictum.
19. In the present case, Eveneet and Prashant were living together. No doubt, the suit premises are not owned by either of them; the documents on record prima facie disclose that exclusive title and right is of Kavita, the mother-in-law. Yet, having regard to the previous discussion, Kavita is undoubtedly a "respondent" in whose household, the couple lived together. The Court here cannot be oblivious of the circumstance that Prashant moved out when the relationship became stormy; the possibility of the eviction suit having been filed as a pre-emptive move, to bring it within the Batra formulation cannot be ruled out at this stage. In the context, the Court holds that what cannot be done directly, cannot be achieved indirectly through stratagem. If the Court can look beyond the facts, and in a given case, conclude that the overall conspectus of circumstances, suggests manipulation by the husband or his relatives, to defeat a right inhering in the wife, to any order under Section 19, such "lifting of the veil" should be resorted to. Therefore, the plaintiff indeed has a right of residence under the Domestic Violence Act.
20. Now the question is what should be the order that the Court should make. As held earlier, though Eveneet has made a complaint under the Domestic Violence Act, in which orders have not been made, yet this Court also has concurrent jurisdiction under Section 26 to make appropriate orders in this regard, and mould the relief. The documentary evidence also suggests that Kavita is suffering from an acute cardiac condition; though Eveneet‟s counsel submitted that the illness has been exaggerated, the Court cannot rule out aggravation, if the daughter-in-law continues in the premises, under a Court order, or the Court mandate. In this context, it has been observed by a division bench of this Court in Shumita Didi Sandhu v. Sanjay Singh Sandhu and Ors., (F.A.O. (OS) 341/2007, Decided On: 26.10.2010) that
the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property.
I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 15 The above approach is consistent with the power under Section 19 (1) (f), which enables the Court to direct
the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require...
. The plaintiff is thus, entitled to residence in a property commensurate with her lifestyle and her current residence, keeping in mind Kavita‟s health condition.
21. The documentary evidence and pleadings suggest that Prashant‟s monthly outgoings - in respect of the New York property are US$ 4500/-, which works out to `2,05,000/-. He is also paying rent to the tune of `-27,000/- per month. With this expenditure, the Court can safely incur that his personal expenses would not be less than about `40,000/- per month. In these circumstances, to support this kind of lifestyle, Prashant‟s average monthly income would not be less than `450,000/- to `500,000/-. On the other hand, Eveneet‟s income is about `50,000/- per month; Prashant alleges it to be more. Having regard to his offer to pay `20,000/- per month towards alternative accommodation, the Court is of opinion that she should be entitled to an amount of `30,000/- per month towards rent, for alternative accommodation, and an amount of `45,000/- per month maintenance. In order to facilitate and effectuate this order, the parties are directed to appear before the Court handling the complaint under the Domestic Violence Act, on 4th January, 2011, which shall oversee that Prashant complies with Section 19 (1)(f), within ten weeks from today. Till such alternative accommodation is made available, Eveneet would be entitled to continue in the suit premises, and also entitled to receive `45,000/- per month. The application for maintenance is allowed with effect from the date it was filed; arrears shall be paid within six weeks.
22. IA Nos. 8479/2010, 8480/2010 in CS (OS) 1307/2010 are allowed in the above terms and I.A. No.3577/2010 in CS (OS) 505/2010 is disposed of in the above terms. In the circumstances, there shall be no order as to costs.
CS(OS) Nos.1307/2010 and 505/2010 List before Joint Registrar on 15.02.2011 to enable the parties to admit/deny the documents.
I.A. 8479/10, 8480/10 in CS(OS)1307/2010 & IA 3577/10 in CS(OS) 505/2010 Page 16 List before the Court on 01.08.2011 for framing of issues.