K. SRINIVAS v. ADDITIONAL JUDGE, FAMILY COURT, BANGALORE
1990-03-21
M.P.CHANDRAKANTARAJ
body1990
DigiLaw.ai
M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS is a petition under Article 227 of the Constitution directed against the order made by the Additional Judge, Family Court, Bangalore, in what is termed as O. S. No. 12/1988. The plaintiffs are (1) Smt. S. Gayathri, (2) Miss Rekha and (3) Miss babita. The 1st plaintiff is described as the wife of the 1st defendant while the 2nd and 3rd plaintiffs are described as the daughters born out of alleged wedlock between the 1st defendant and the 1st plaintiff. The defendants 2 and 3 are purchasers of certain immovable properties from the 1st defendant. The frame of the suit is such that the plaintiffs have prayed for a permanent injunction restraining the 1st defendant from interfering with the possession and enjoyment of the suit schedule properties by the plaintiffs. ( 2 ) THE 1st defendant filed his written statement on 23-5-1988. A copy of the order sheet is produced along with this petition in support of that assertion. However, in the course of the order passed on I. As. Ill and IV, the learned Judge in paragraph 9 has observed as follows:"the 1st defendant has not appeared before court or contested the case. Here we see this case is correlated with the relationship of wife and husband that has not been controverted by the person against whom it has been filed. "again the learned Judge has observed as follows:"it shows that the 1st defendant has no interest in contesting the allegations of plaintiff and that means to say that the 1st plaintiff is the legally wedded wife and he has wilfully refused and neglected to maintain the plaintiffs. "apparently, the findings of facts recorded with reference to the court's own records, are incorrect. This court was first inclined to issue notice to the respondents, the plaintiffs in the original suit before the Family Court. Having regard to the purpose for which the Family Court is established, that procedure has been dispensed with. It would be sufficient to make an observation that in disposing of an interlocutory application, the learned Judge ought not to have gone into the merits of the case or the contentions put forward which would raise issues that are required to be decided in the suit in the light of the evidence led.
It would be sufficient to make an observation that in disposing of an interlocutory application, the learned Judge ought not to have gone into the merits of the case or the contentions put forward which would raise issues that are required to be decided in the suit in the light of the evidence led. ( 3 ) THE order sheet discloses that the 1st defendant has entered appearance and filed the written statement on 23-5-1988. Therefore, the observation that he had not contested or entered appearance is wholly incorrect and contrary to the records. Similarly, the observation that he has shown no interest to prove that the plaintiff is not the legally wedded wife is also a conclusion drawn without evidence despite the denial of the relationship in the written statement filed, a true copy which is produced with this petition. ( 4 ) IN that view of the matter, the findings recorded are liable to be interfered with by this court. I have already observed that in order to avoid delay, it suffices for this court to make an observation that the learned Judge has exceeded the authority vested in the court and has acted with material irregularity in going into the questions of facts and issues yet to be raised framed and evidence invited while disposing of interlocutory applications. That is likely to prejudice the ultimate result of the suit. ( 5 ) THEREFORE, this court must reluctantly observe that those findings shall not be borne Jn mind by the learned Judge when the trial proceeds further. ( 6 ) I repeat that this course has been adopted for getting a quick adjudication in the court-below. If the learned Judge in question persists in her mistakes as she has done in disposing of the review application filed, proper steps will have to be taken by this court to suo motu call for the records after notice to the respondents. ( 7 ) SUBJECT to the observations, this petition is disposed of even without notice to the respondents. --- *** --- .