IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION Nos.38518-519/2014 (GM-CPC) Between:
Smt. K.L. Kamala, D/o Late Lakshmaiah Reddy, Aged 67 years, Resident at No.25, Lakshmaiah Reddy Road, Kacharakanahalli, St. Thamos Town Post, Bengaluru City – 500 084. … Petitioner (By Sri. V. Rangaramu, Advocate) And:
1. Kum. Pavithra, D/o Smt. S. Padmavathi, Aged 17 years.
2. Kishore, S/o Smt. S. Padmavathi, Aged 15 years.
Since both are Minors, Rep. by their Mother and Natural Guardian, Smt. S. Padmavathi, Both are R/at: No.57, Kacharakanahalli, St. Thamos Town Post, Bengaluru City – 500 084.
3. Smt. Gowramma, W/o Late Lakshmiah Reddy, Since Died during the pendency of the case, Her LR’s are on record.
(Petitioner and Respondent No.5) 4. Sri K.L. Babu Reddy, S/o Late Lakshmiah Reddy, Since Died during the pendency of the case, His LR’s are on record.
(Respondent Nos.1, 5, 6, 7, 8 & 9) 5. Smt. K.L. Renuka, D/o Late Lakshmaiah Reddy, Aged 57 years, Resident at Karavali Road, Kacharakanahalli, St. Thamos Town Post, Bengaluru City – 500 084.
6. Smt. B. Vasantha, D/o Late Babu Reddy, Aged 32 years, Residing at No.120, 1st Phase, 80 feet Road, J.P. Nagar, Bengaluru – 560 078.
7. Smt. Lakshmi, D/o Late Babu Reddy, Aged 32 years, Residing at Hulimangalal Village, Jigani Hobli, Anekal Taluk, Bengaluru District.
8. Smt. Shobha, D/o Late Babu Reddy, Aged 30 years, Residing at No.57, Kacharakanahalli, St. Thamos Town Post, Bengaluru City – 500 084.
9. Smt. Philomina, W/o Not Known, Aged 66 years, Residing at No.84, 5th Cross, HAL Main Road, Domlur, Bengaluru – 560 071. … Respondents (By Sri. V. Nagareddy, Advocate for R1 & R2; R3 & R4 are dead;
Sri K.R. Krishna Murthy, Advocate for R5; R6 to R9 are served and unrepresented;
V/o dated 05.03.2019, R1, R5 & R9 are LRs of R4) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to set aside the order made on I.A. No.10 in O.S. No.7239/2004 on the file of XLIII Additional City Civil and Sessions Judge, Bangalore order dated 19.07.2014 vide Annexure-A and etc.
These Writ Petitions coming on for preliminary hearing in ‘B’ Group this day, the Court, made the following:
ORDER Defendant No.2 has filed the present petition and has sought for setting aside of the order made on I.A.10 as well as the order on I.A.11 dated 19.07.2014.
2. The respondents had filed a suit seeking for the relief of partition and separate possession of their 1/5th share in the suit schedule property by metes and bounds. Certain other reliefs had been sought for as regards the Gift Deed. An application - I.A.4 came to be filed under Order 39 Rules 1 and 2 of CPC by the plaintiffs seeking for an order of temporary injunction restraining the defendants from dispossessing the plaintiffs from the property mentioned in the schedule. The affidavit filed in support of the said application makes out an apprehension that the defendants would dispossess the plaintiffs from the suit schedule property. There is a specific assertion that the plaintiffs are in possession of the property. The said application was heard and the trial Court has passed an order on 30.08.2006 after hearing both sides and has merely observed as follows:
“Both parties are directed to maintain status quo in respect of ‘A’ schedule property”
3. The plaintiff subsequently has filed I.A.10 under Order 39 Rule 2A of CPC and seeks for appropriate action against defendant No.2 for disobedience of the order of the Court directing both parties to maintain status quo. The said application is supported by an affidavit and it is asserted that even subsequent to the interim order granted, the 2nd defendant has obtained sanction plan, license and has put up structures in the property in violation of the order passed. Accordingly, the plaintiffs had sought for orders to be passed on the application filed under Order 39 Rule 2A of CPC.
4. The trial Court by virtue of the impugned order has directed to register I.A.10 as a separate miscellaneous petition to inquire into the alleged disobedience of the order.
5. I.A.11 has been filed by the 2nd defendant seeking for appropriate punishment to be imposed on the plaintiffs for having obtained an order of status quo by suppressing the facts.
6. Order on I.As.10 and 11 is challenged on the ground that the order of status quo passed by the Court does not explicitly state the state of affairs while passing the order of status quo and the impugned order is a cryptic order and such an order is incapable of being enforced and accordingly action for violation of the said order is not maintainable.
7. Learned counsel for the petitioner relies on the judgment in the case of SMT. JAYAMMA AND OTHERS v. SRI GANGASWAMY AND OTHERS – ILR 2018 KAR 4086.
8. Learned counsel for the respondent on the other hand would contend that the facts are admitted and that the parties are in joint possession and hence, no further clarity is required as such as regards to the impugned order directing maintenance of status quo.
9. Heard both sides. The only question that is to be answered is as to whether the order of the trial Court directing further enquiry as regards the application filed under Order 39 Rule 2A is to be sustained?
10. It is to be noted that the order of status quo is alleged to have been violated. A perusal of the order would indicate that the Court without explaining the state of affairs prevailing while passing the order has merely directed maintenance of status quo. Without any reference to the actual fact situation prevailing, order of status quo does not confer any right to seek its enforcement. It is to be noted that an order to be passed under Order 39 Rule 2A is punitive in nature and would visit serious consequence on the party held to be in violation of the order. Unless disobedience is proved, no order could be passed on an application filed under Order 39 Rule 2A of CPC. For disobedience to be demonstrated and for an enquiry as regards disobedience there should be clarity as regards to the order. In the present case, in light of no clarity as regards to the prevailing status of the property in the order itself, taking note of the law laid down by this Court in the case of SMT. JAYAMMA AND OTHERS v. SRI GANGASWAMY AND OTHERS – ILR 2018 KAR 4086, it is clear that no proceedings under Order 39 Rule 2A could be proceeded with. The order of status quo that is passed as observed above is incapable of being enforced in contempt proceedings. Accordingly, the order dated 19.07.2014 insofar as I.A.10 is set aside.
11. Learned counsel for the petitioner states that he does not insist for any order to be passed dismissing I.A.11 in view of setting aside the order on I.A.10.
Accordingly, petitions are disposed off.
Sd/- JUDGE VP