IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.3155/2019(GM-CPC) BETWEEN:
1. T. MUNISWAMY S/O LATE THIMMAIAH, AGED ABOUT 74 YEARS, 2. LAKSHMAMMA W/O T. MUNISWAMY AGED ABOUT 64 YEARS, BOTH THE PETITIONERS ARE R/A NO.8, 15TH CROSS, 4TH MAIN, SAMPANGIRAMA NAGARA, BANGALORE - 560 027.
3. M. PADMANABHA S/O T. MUNISWAMY AGED ABOUT 42 YEARS, R/AT NO.3, AVENUE P.G.HOSTEL, 21ST CROSS, CUBBONPET BANGALORE - 560 002.
... PETITIONERS (BY SRI JEETHU R. S., ADVOCATE) AND:
1. HEMALATHA P W/O PADMANABHA M AGED ABOUT 38 YEARS, 2. IMPANA P D/O PADMANABHA M AGED ABOUT 17 YEARS, 3. RAKSHITHA P D/O PADMANABHA M AGED ABOUT 5 YEARS, ALL THE RESPONDENTS 1 TO 3 ARE RESIDING AT NO.45, GROUND FLOOR, 4TH MAIN, 5TH CROSS SAMPANGIRAMANAGARA BANGALORE - 560 027.
4. M. RANGANATHA S/O T. MUNISWAMY, AGED ABOUT 45 YEARS, R/AT NO.12/3, 12TH CROSS SAMPANGIRAMANAGARA BANGALORE - 560 027.
... RESPONDENTS (BY SRI CHANNABASAPPA S.N., ADVOCATE FOR R1 TO R3; NOTICE TO R-4 IS DISPENSED WITH VIDE ORDER DATED 25.03.2019) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 16.12.2016 PASSED IN O.S.NO.1498/2015, BY THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant Nos.1, 2 and 4 filed the present writ petition against the order dated 16.12.2016 made in O.S.No.1498/2015 allowing I.A.No.3 in part filed by the plaintiffs under Section 151 of Code of Civil Procedure, awarding maintenance of `50,000/- per month to the plaintiffs from the date of application, till further orders.
2. The plaintiffs filed suit for partition and separate possession in respect of suit schedule properties, claiming 3/16th share in the joint family properties morefully described in the schedule to the plaint and for separate possession and mesne profits, raising various grounds. The defendants filed written statement, not disputed the relationship, but contended that the suit is not maintainable and plaintiffs have already filed about eight cases in different courts for maintenance, domestic violence, etc., and sought for dismissal of the suit.
3. The plaintiffs filed I.A.No.3 under Section 151 of Code of Civil Procedure seeking maintenance of `75,000/- per month contending that the defendants are collecting huge rents of more than `5,00,000/- per month from the plaint schedule properties and they are entitled for a share in the joint family income. The defendants have not filed any objections. Therefore, the Trial Court, proceeded to consider the application and awarded `50,000/- per month on the ground that, ‘the fourth defendant being the husband of first plaintiff, is duty bound to look after the plaintiffs who are his wife and children. Moreover, it is the specific assertion of the plaintiff that the suit schedule properties are the joint family properties and the defendants despite earning more than `5,00,000/- per month out of suit schedule properties, they are not looking after the plaintiffs’. Hence the present writ petition is filed.
4. Sri Jeethu, learned counsel for the petitioners contended that the impugned order passed by the Trial Court without giving sufficient opportunity to the defendants to file objections to the application is erroneous and contrary to the material on record. He further contended that the plaintiffs have already filed Crl.Misc.No.261/2014 and already obtained interim maintenance of `15,000/- per month, `50,000/- towards educational expenses of children and `4,00,000/- in domestic violence case, out of which, `3,00,000/- is paid. The same is suppressed in the application. Therefore, he sought to allow the writ petition.
5. Per contra, Sri Channabasappa, learned counsel for respondent Nos.1 to 3/plaintiffs, sought to justify the impugned order and contended that the suit is filed for the relief of partition and separate possession and there is no dispute with regard to relationship between the parties. Admittedly, the defendants are getting more than `5,00,000/- per month from the suit schedule properties. Inspite of granting sufficient opportunity, the defendants have not filed any objections. He would further contend that the other criminal case as well as in other proceedings, the Trial Court has awarded `10 lakhs, but only `2,00,000/- has been paid, as on today. Therefore, he sought to dismiss the writ petition.
6. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs filed suit for partition and separate possession claiming 3/16th share in the suit schedule properties on the ground that the suit schedule properties are joint family properties and plaintiffs and defendants are entitled to share. The defendants filed written statement, not denied the relationship, but contended that the suit for maintenance is not maintainable. It is not in dispute that inspite of granting sufficient time, defendants have not filed objections to the application and not brought to the notice of the Court about the interim order granted in the earlier proceedings between the same parties. The Trial Court proceeded to grant monthly maintenance of `50,000/-, mainly on the ground that the defendants have not filed objections and defendants are earning more than `5,00,000/- per month from the suit schedule properties. However, the order does not depict the earlier maintenance granted in favour of the plaintiffs, as contended by the defendants.
7. Without adverting to merits and demerits of the case, this Court is of the opinion that an opportunity should be given to the present petitioners to file their objections to I.A.No.3 filed by the plaintiffs for interim maintenance, subject to the condition that the defendants, especially, the fourth defendant shall deposit a sum of `6,00,000/- within a period of six weeks from today. On such deposit, the Trial Court shall permit the petitioners to file objections and after ensuring payment of `6,00,000/-, shall consider the application and pass appropriate orders in accordance with law. On such deposit being made by the defendants, the plaintiffs are at liberty to withdraw the amount by filing necessary application before the Trial Court. With the above observations, writ petition is disposed of.
In view of the disposal of the appeal, I.A.No.1 of 2019 does not survive for consideration.
Sd/- JUDGE kcm