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2019 DIGILAW 640 (KAR)

B. K. CHANDRASHEKAR v. B. C. ARUN KUMAR

2019-03-14

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. The defendant Nos.1 to 4 filed the present writ petition against the Order dated 17.11.2018 made in O.S.No.25238/2015 on the file of the LXXIII Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru, partly allowing the application filed by the plaintiff under Section 151 of Code of Civil Procedure seeking direction to the defendants 1 to 4 to pay the monthly interim maintenance for himself and his family. 2. The respondent No.1 herein/plaintiff filed suit for partition and separate possession in respect of suit schedule properties morefully described in schedules 'A' to 'H' to the plaint, contending that the suit schedule properties are the joint family properties of the plaintiff and defendants 1 to 4 and there was no partition in the family and therefore, plaintiff is entitled to 1/4th share. The defendants filed written statement, denied the plaint averments except admitting that plaintiff is the son of defendant Nos.1 and 2 and contended that the suit schedule properties are the self acquired properties of defendant Nos.1 and 2. During pendency of the suit, plaintiff filed an application under Order XXXIX Rule 1 and 2 of Code of Civil Procedure to restrain the defendants from alienating the suit schedule properties. The said application was resisted by the defendants. After contest, the Trial Court, by the Order dated 21.04.2017, allowed the application and restrained the defendants from alienating the suit schedule properties. 3. Aggrieved by the said order, defendants filed MFA No.5428/2017 before this Court. After hearing both the parties, this Court, by the Order dated 27.02.2018, allowed the appeal and vacated the Order dated 21.04.2017 passed by the Trial Court and dismissed the application. That order was subject matter of SLP No.11505/2018 before the Hon'ble Supreme Court. The said SLP came to be disposed of with an observation that the alienation of the property scheduled in the partition suit shall be subject to the outcome of the partition suit; and the Trial Court was directed to proceed with the trial uninfluenced by any of the observations and findings made by this Court. 4. Thereafter, the Trial Court proceeded to consider the application filed by the plaintiff under Section 151 of Code of Civil Procedure to direct the defendants to pay a sum of Rs.2,00,000/- to the plaintiff as monthly maintenance. 4. Thereafter, the Trial Court proceeded to consider the application filed by the plaintiff under Section 151 of Code of Civil Procedure to direct the defendants to pay a sum of Rs.2,00,000/- to the plaintiff as monthly maintenance. The contention of the plaintiff is that he has no other source of income, he is not in a position to maintain his family, he is having a child aged 4 years and requires atleast Rs.2,00,000/- per month for school admission of the child and other expenses. The said application was resisted by the defendants by filing the objections. 5. The Trial Court, considering the application and objections, by the impugned Order dated 17.11.2018, allowed the application in part and granted interim maintenance of Rs.70,000/- per month to the plaintiff's minor child and directed the defendant Nos.1 to 4 to pay Rs.70,000/- per month to the minor child from the date of application. Hence, the present writ petition is filed. 6. I have heard the learned counsel for the partiers to the lis. 7. Sri P.S.Rajagopal, learned Senior Counsel for Sri S.V.Bhat, learned counsel for the petitioners contended with vehemence that the impugned order passed by the Trial Court granting interim maintenance of Rs.70,000/- per month to the minor son of the plaintiff is erroneous and contrary to the material on record and is without any basis. He further contended that when the Trial Court granted injunction restraining the defendants from alienating the suit schedule properties, same was reversed by this Court in MFA No.5428/2017 on 27.02.2018 and the said judgment was confirmed by the Hon'ble Supreme Court in SLP No.11505/2018. He further contended that the defendants, in the written statement, denied all averments except the fact that the plaintiff is the son of defendant Nos.1 and 2. Unless and until the plaintiff proves his entitlement of share in a partition suit after trial, the Trial Court was not justified in granting maintenance. He further contended that the very application filed seeking maintenance, when the defendants denied the entitlement of share to the plaintiff is not maintainable and therefore, question of granting maintenance would not arise. In support of his contentions, learned senior counsel relied upon the judgment of this Court in the case of Mulimani Sanna Basavarajappa vs. Basavannappa, 1959 MysoreSeries 105. 8. In support of his contentions, learned senior counsel relied upon the judgment of this Court in the case of Mulimani Sanna Basavarajappa vs. Basavannappa, 1959 MysoreSeries 105. 8. Per contra, Sri Suresh S. Lokre, learned counsel for the respondent/plaintiff sought to justify the impugned order and contended that at para-7(a) of the written statement, the defendants have given details as to how the schedule property was acquired and contended that the suit schedule properties are acquired out of joint family funds by the first defendant and he is the fifth son among nine children of his father A. Krishna Murthy. During pendency of the suit, plaintiff is entitled to maintenance. He would further contend that by obtaining injunction orders in various other suits, the defendants have deprived the plaintiff from continuing in the business as joint family member and thereby plaintiff is out of business and he has no means to survive for himself and his family members. Therefore, during pendency of the suit for partition, plaintiff's son i.e., grand son of defendants 1 and 2 is entitled to maintenance. Therefore, he sought to dismiss the writ petition. In support of his contentions, learned counsel relied upon the judgment of this Court in the case of Syed Hussein and another vs. Rahmathabi and another, (1975) 2 KarLJ 182 . 9. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is: "Whether the Trial Court is justified in granting interim maintenance of Rs.70,000/- to the plaintiff's minor son, in the facts and circumstances of the present case?" 10. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully. 11. The material on record clearly depicts that the plaintiff filed suit for partition and separate possession in respect of suit schedule 'A' to 'H' properties morefully described in the schedule to the plaint, contending that the suit schedule properties are the properties of the plaintiff and defendants 1 to 4 and there was no partition in the family. The defendants denied the plaint averments and contended that the suit schedule properties are the self acquired properties of the defendants 1 and 2 and plaintiff is not entitled to any share. The defendants denied the plaint averments and contended that the suit schedule properties are the self acquired properties of the defendants 1 and 2 and plaintiff is not entitled to any share. It is also not in dispute that on the application filed by the plaintiff, the Trial Court, by Order dated 21.04.2017, granted temporary injunction restraining the defendants 1 to 4 from alienating the suit schedule properties till the disposal of the suit. That order was subject matter of appeal in MFA No.5428/2017. This Court by judgment dated 27.02.2018, allowed the appeal, recording a finding that, 'the plaintiff has not made out a prima-facie case at all and observed that, it is true that usually in a suit for partition, order of temporary injunction restraining the defendants from creating third party interests is granted to avoid multiplicity of proceedings and future litigations. Even to grant this type of an order the plaintiff must show that on facts he is entitled to bring a suit for partition. The interim order should not be a weapon in the hands of the plaintiff to compel partition of a property which may not appear to be amenable for partition'. Accordingly, the appeal came to be allowed and injunction granted by the trial Court came to be vacated. The Hon'ble Supreme Court, while confirming the order passed by this Court, has only observed that alienation of the property scheduled in the partition suit shall be subject to the outcome of the partition suit and the Trial Court shall proceed with the trial uninfluenced by any of the observations and findings in the impugned order. 12. Admittedly, the application filed by the plaintiff for temporary injunction was allowed by the Trial Court which was reversed by this Court by vacating the temporary injunction and the matter went up to the Supreme Court. The plaintiff is the son of defendant Nos.1 and 2. But, nowhere the defendants admitted that the suit schedule properties are the joint family properties of the plaintiff and defendants. Though an attempt is made by the learned counsel for the plaintiff that in para No.7(a) of the written statement, there is an admission by the defendants that the properties were acquired from joint family nucleus, but a careful reading of para No.7(a), it only depicts that how the defendants have come up in life. Though an attempt is made by the learned counsel for the plaintiff that in para No.7(a) of the written statement, there is an admission by the defendants that the properties were acquired from joint family nucleus, but a careful reading of para No.7(a), it only depicts that how the defendants have come up in life. Whether the properties are joint family properties or self acquired properties as contended by the parties, requires fullfledged trial. In the absence of any prima facie case proved by the plaintiff, the very application filed for interim maintenance to the plaintiff or his son (grand son of defendants 1 and 2), is not maintainable. 13. Admittedly, in the application, the plaintiff sought interim maintenance directing the defendants 1 to 4 to pay monthly maintenance to the plaintiff which came to be rejected by the Trial Court and same was not challenged by the plaintiff. But, the Trial Court proceeded to grant Rs.70,000/- per month to the plaintiff's minor son without there being any prayer in the application. May be the learned Judge might have proceeded on 'Moral Dharma' and 'Morality'. If there was real morality between plaintiff and defendants, they would not have fought before the Court. When they have approached the temple of justice, the Court has to decide the case within four corners of law and ultimately, rule of law has to be maintained. 14. The learned Judge recorded a finding that, 'it is not the arguments of the defendant that there was already partition taken place in between the parties, in respect of suit schedule properties and also relationship is not disputed and on perusal of the objection and written statement, it is clear that, defendant No.1 had run business with his father, during his life time and the father of defendant No.1 has left the source of income, like cloth business etc. and suit properties. When there is a business run by the defendant No.1 with his father and with his ancestors, then there is a joint family in between the plaintiff and defendant Nos.1 to 4. Whether suit schedule properties are joint family properties or not is not relevant at this stage'. The learned Judge failed to notice that before granting interim maintenance, the plaintiff has to prove that the suit schedule properties are joint family properties and there was no partition. Whether suit schedule properties are joint family properties or not is not relevant at this stage'. The learned Judge failed to notice that before granting interim maintenance, the plaintiff has to prove that the suit schedule properties are joint family properties and there was no partition. The argument of the learned counsel for the plaintiff that, the defendants have not taken any contention that partition has not taken place, is not a ground to grant maintenance. If such contention is taken, then the very suit is not maintainable. The learned Judge proceeded to decide the merits of the case, while deciding the application for maintenance which is impermissible. 15. In the absence of any prima facie case proved by the plaintiff regarding his entitlement to share in the suit schedule properties, the application for interim maintenance is not maintainable. On that ground alone, the impugned order cannot be sustained. Insofar as judgment relied upon by the learned counsel for the plaintiff, in the case of Syed Hussein and another, it was a dispute between brother and sister and the Court held that the person who filed the application has to prove prima facie case, even though defendant denied the relationship. Under those circumstances, this Court directed the defendant who has not denied the relationship of the parties or the collection of rents from the suit properties, considering income and position of the plaintiff, to pay Rs.100/- per month. The facts of the said case has no relevance to the facts and circumstances of the present case. 16. Admittedly, in the present case, plaintiff has not made out any prima-facie case for entitlement of share in the suit schedule properties. In the absence of any determination by the Court, at this stage, plaintiff would not be entitled to any interim maintenance. Accordingly, the point raised for consideration is answered in the negative holding that the Trial Court is not justified in passing the impugned Order. 17. In view of the above, writ petition is allowed. The impugned order dated 17.11.2018 passed by the Trial Court is hereby quashed. 18. However, it is needless to observe that if the plaintiff succeeds in the suit, he is entitled for mesne profits from the defendants from the date of the suit and it is for the parties to adjudicate both oral and documentary evidence regarding their entitlement, in accordance with law. 18. However, it is needless to observe that if the plaintiff succeeds in the suit, he is entitled for mesne profits from the defendants from the date of the suit and it is for the parties to adjudicate both oral and documentary evidence regarding their entitlement, in accordance with law. Taking into consideration the fact that the suit is of the year 2015, and the relationship between the parties, it is suffice to direct the Trial Court to expedite the suit itself, subject to cooperation by the parties.