IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.9544 OF 2019 (GM-CPC) Between:
1. Shylaja W/o. Late Devaraj, Aged about 39 years.
2. Sindhu D.
D/o. Late Devaraj, Aged about 24 years.
3. Manav D.
S/o. Late Devaraj, Aged about 20 years.
All are residing at Flat No.F4, 2nd Floor, Dhruva Arora, 17/3, 3rd Cross, Giddappa Block, Ganganagar, Bengaluru – 560 032. …Petitioners (By Sri. N.K. Ramesh, Adv.) And:
Kanthamma W/o. Late Muniyappa, Aged about 72 years, Residing at No.15, 10th Cross, 5th Main, Giddappa Block, Ganganagar, Bengaluru – 560 032. …Respondent (By Sri. H.K. Revana Siddappa, Advocate) *** This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order passed on I.A.No.3 filed under Section 22 and 23 of Hindu Adoption and Maintenance Act in O.S.No.6580/2017 dated 17.12.2018 as per Annexure-D on the file of the Principal City Civil Judge (CCH No.56) at Bengaluru and etc.
This Writ Petition coming on for Orders this day, the Court made the following:
ORDER Defendants No.1 to 3 have filed the present writ petition against the order passed on I.A.No.3 filed under Section 22 and 23 of the Hindu Adoption and Maintenance Act, 1956 dated 17.12.2018 made in O.S.No.6580/2017 on the file of the Principal City Civil Judge (CCH No.56) at Bengaluru allowing the application in part granting interim maintenance of Rs.30,000/- per month on the next date of hearing.
2. The respondent/plaintiff filed suit for partition and separate possession in respect of suit schedule property declaring that the plaintiff is entitled for 1/4th share in the Suit Schedule-A property and to divide the same by metes and bounds and to put the plaintiff in separate possession, declare that the registered joint development agreement and the registered GPA dated 12.12.2014 executed by defendants No.1 to 3 in favour of defendant No.4 as not binding on the 1/4th share of the plaintiff in respect of the Suit Schedule-A property and to declare that the registered sale deeds which are executed by defendants No.1 to 4 in favour of defendants No.5 to 28 in respect of the flats as mentioned are not binding on the 1/4th share of the plaintiff in the Schedule-A property and etc. He further contended that the suit schedule property is joint property of the plaintiff and defendant Nos.1 to 3. The defendants filed written statement denying the plaint averments and contended that the suit filed by the plaintiff is not maintainable and sought for dismissal of the suit.
Thereafter, the plaintiff filed an application under Section 22 and 23 of the Hindu Adoption and Maintenance Act, 1956 praying to award interim maintenance of Rs.1,00,000/- per month and contended that the defendants are earning a sum of Rs.3,60,000/- per month from ‘A’ schedule property. When the matter was posted for objections on 14.11.2018, the defendants were absent and there was no representation. Again the matter was posted on 17.12.2018, that day also defendants No.1 to 3 were called out but no representation. After hearing learned counsel for the plaintiff, the trial Court proceeded to pass the award of Rs.30,000/- towards monthly maintenance holding that the plaintiff is a woman and she is aged 65 years, she is under the mercy of her widow daughter and taking shelter in her home otherwise she will be in the street. Therefore, considering that defendants No.1 to 3 are having rental properties through flats and getting rent of Rs.3,60,000/- per month, out of 28 flats located at Ganganagara, R.T. Nagar, Giddappa Block and the flats were standing in the name of the father- in-law of the plaintiff earlier and now stands in the name of defendants No.1 to 3. Hence, the present writ petition is filed.
3. I have heard learned counsel for the parties to lis.
4. Sri N.K. Ramesh, learned counsel for the petitioners contended that the impugned order dated 17.12.2018 passed by the trial Court awarding interim maintenance of Rs.30,000/- per month is without any basis and is erroneous and contrary to material on record. He further contended that the matter was called on 14.11.2018. On that day, the defendants and their counsel were absent. Again, when the matter was posted on 17.12.2018, that day also the defendants were absent. Learned Judge after hearing the learned counsel for the plaintiff proceeded to pass the impugned order without giving any opportunity to the defendants to file objections. Since, the rights of the parties are involved in the matter, an opportunity ought have been given to the defendants to file their objections. Therefore, he sought to allow the writ petition.
5. Per contra Sri H.K. Revanasiddappa, learned counsel for the plaintiff sought to justify the impugned order and contended that inspite of giving sufficient opportunity, on 14.12.2018 and on 17.12.2018, neither the defendants have been represented nor filed objections. Therefore, the trial Court was justified in passing the impugned order. Therefore, he sought to dismiss the writ petition.
6. Having heard learned counsel for the parties, it is not in dispute that the plaintiff filed suit for partition and separate possession of the property in question and contended that the suit property is the joint property of the plaintiff and defendants No.1 to 3. The same is denied by the defendants by filing written statement. When the plaintiff filed an application for interim maintenance, on two occasions both defendants and their counsel were absent. After hearing the plaintiff, the trial Court proceeded to grant interim maintenance of Rs.30,000/- per month. Since the matter involves the rights of the parties, the trial Court ought to have permitted the defendants to file objections. Therefore, in the interest of justice, it is suffice to direct the defendants to file objections to the interim application filed by the plaintiff if any and on filing of objections, the trial Court is directed to consider the same and pass appropriate orders in accordance with law.
With the above observation, the writ petition is allowed. The impugned order passed by the trial Court on IA No.3 filed under Section 22 and 23 of the Hindu Adoption and Maintenance Act, 1956 in O.S.No.6580/2017 on the file of the Principal City Civil Judge (CCH-56), Bengaluru is hereby quashed. The petitioners are permitted to file objections on the next date of hearing i.e., on 22.04.2019 and on that day learned Judge shall consider the objections of the defendants and pass appropriate orders in accordance with law. The trial Court is directed to decide the application within one month from the date of receipt of this order.
Ordered accordingly.
PN/-
Sd/- JUDGE