Bangalore District Court
Smt. Subbamma vs T.Narayana on 5 November, 2018
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 5th day of November, 2018.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl. City Civil & Sessions Judge, Bengaluru.
O.S.NO.4405/2014
Plaintiff : SMT. SUBBAMMA,
W/o.T. Narayana,
Aged about 50 years,
R/at 2nd Cross, 2nd Main,
Islampura, Annasandra Palya,
HAL Post, Bangalore-17.
(By Sri. S.Manjunath, Advocate.)
AND: V/s
Defendant:1 T.NARAYANA,
S/o Thippanna,
Aged about 57 years,
Working as Head Constable,
No.132, 1st Batalian, KSRP,
No.16, Richmand Road,
Bangalore-25.
2 The Commandant,
1st Batalian KSRP,
No.60, Bangalore-25.
3 The Accountant General,
A & E, Bangalore.
(D-1: By Sri. G.N, D2 & 3 : By ADGP
Advocate)
*****
2 O.S.No.4405/2014
i) Date of Institution of the 13-06-2014
suit.
ii) Nature of the suit. Injunction Suit
iii) Date of the
commencement of 21-03-2016
recording of evidence.
iv) Date on which the 05-11-2018
judgment was pronounced.
v) Total Duration Year/s Month/s Days
04 04 22
**** *
JUDGMENT
This suit is filed seeking relief of permanent injunction restraining defendant No.1 from receiving voluntary retirement service benefit till settlement of arrears of maintenance to plaintiff as per interim orders passed on 28-03-2012 and final order passed on 03-06- 2013 in Cri.Misc.No.80/2011 on the file of Traffic Court-I Mayo Hall Bangalore and direct defendant No. 2 and 3 to with held voluntary retirement benefit amount of defendant No.1.
3 O.S.No.4405/2014
2. The plaintiff pleaded that, she is the wife of defendant No.1 and her marriage with Defendant No.1 performed on 03-06-1986 at Bellakunta Village, Kuppam Taluk (A.P) according to rituals and custom. After the marriage both have led marital life at Matrimonial home at Gollahalli in Bangarpet Taluk. At the time marriage defendant No.1 was an unemployee and later he was selected as Police constable and shifted residence to Bangalore. The plaintiff further pleaded that, due to wed- lock she got 3 children. After the marriage till 1992 both have led happy marital life. Thereafter defendant No.1 started ill treating and harassing mentally and physically and also insisting dowry. The defendant No.1 started neglecting the plaintiff from maintenance. Lastly defendant No.1 drove her from the house. The plaintiff averred that she took shelter at her parental house. The plaintiff filed M.C. 2 /1994 U/Sec. 125 Cr.PC. before JMFC, Palamaner 4 O.S.No.4405/2014 seeking maintenance against defendant No.1. The defendant No.1 has filed M.C. No.3/1994 before Senior Civil Judge, KGF, seeking decree of divorce. After filing the petitions there was a compromise as such both petitions were got dismissed. The defendant No.1 took plaintiff to his house and started leading life till 2006. The plaintiff further alleged that again defendant No.1 started ill treating and neglecting her from maintenance. The defendant No.1 repeated his earlier attitude and misbehaviors. Therefore, she filed M.C.No.6/2007 before JMFC, Palamaner seeking maintenance against defendant No.1. The defendant No.1 was not appearing regularly before the court as such she got dismissed the petition and filed another case i.e., Cri.Mise.80/2011 before MMTC-I, Mayo Hall Bangalore. The defendant No.1 appeared in the case and filed objections admitting the relationship. The MMTC-I Court passed interim order on 28-03-2012 and directed defendant No.1 to pay maintenance of Rs. 4,000/- P.M. The defendant No.1 is not paying the maintenance 5 O.S.No.4405/2014 regularly and he is due of Rs. 1,04,000/-. Finally Cri.Mise. 80/2011 disposed on 03-06-2014 and the court ordered maintenance of Rs. 7,000/- P.M. and Rs.20,000/- towards litigation expenses. The plaintiff further pleaded that, the defendant No.1 is working as Head Constable under defendant No.2. During April 2014 defendant No.1 told the plaintiff as he is going to take voluntary retirement from service and receive the retirement benefit. It is averred that if defendant No.1 receive the retirement benefit without paying the arrears of maintenance and future maintenance plaintiff will be put to great hardship and in justice. Therefore, the plaintiff constrained to file the suit seeking relief of permanent injunction. Cause of auction accrues to the plaintiff during April 2014, when defendant No.1 told about taking voluntarily retirement.
3. In pursuance of summons, defendants put their appearance though counsels. Inspite of opportunities given the defendants fail to submit written statement. To prove 6 O.S.No.4405/2014 and substantiate the contentions plaintiff examined herself as PW-1 and got marked in all 7 documents at Ex.P.1 to Ex.P.7.
4. Heard the arguments and perused pleadings evidence of oral and document. The points that arisen for consideration of this court are:
1. Whether plaintiff is entitle for the relief sought ?
2. What order or decree?
Above points are answered for the reasons, finding given in the foregoing discussion as, REASONS
5. POINT NO.1: - The plaintiff filed present suit for permanent injunction restraining the defendant No.1 from receiving voluntary retirement service benefit till settlement of arrears of maintenance to plaintiff and direction to defendants No.2 and 3 to withhold service benefits of defendant No.1 till then to prove and substantiate the case and contentions plaintiff filed 7 O.S.No.4405/2014 affidavit in lieu of chief examination by reiterating the plaint averments. The evidence of PW-1 is intact. In support of the case plaintiff produced certified copies of petition in Cri.Misc. (DVC) 80/2011 on the file of MMTC-I Court, Mayo Hall, Bangalore (Ex.P.1), objections statement (Ex.P.3), interim order (Ex.P.4) salary particulars of defendant No.1(Ex.P.5 and 6), Judgment passed in Cri.Misc No.80/2011.
6. On going through the documents produced by plaintiff it reveals that the plaintiff filed Cri.Misc. (DVC) 80/2011 U/S 12 of D.V. Act praying for interim maintenance, compositions etc. The defendant No.1 resisted the petition by filing objections admitted the relationship of plaintiff with him. However he denied allegations of ill treatment. On considering the petition, objection Court passed interim order on 28-03-2012 granting interim maintenance of Rs.4,000/-PM. U/S 23 of DV. Act. Further the court passed final ordered on 03-06- 2014 granting Rs.3,000/- P.M. towards litigation expenses. 8 O.S.No.4405/2014 Rs.4,000/-P.M. for maintenance and Rs.20,000/- as composition.
7. It is grievance of plaintiff that in the month of April 2014 defendant No.1 told her as he is going to take voluntary retirement from the service. If the defendant No.1 receive retirement benefits such as provident fund, KGID, gratuity, Leave salary etc., she will be put in justice and it will be difficult to recover due amount from defendant No.1. At this stage it is relevant to mention that the plaintiff has filed interim application praying for restraining defendant No.1 from receiving retirement benefit. The IA came to be dismissed on 03-12-2015. While passing ordered on IA this court considered Sec.60 CPC and held that any right of personal service, stipends gratuities, allowed to pensioner of the government servant or payable out of any service family benefit are not liable for attachment and if at all the defendant No.1 is due of maintenance amount, plaintiff is having remedy to enforce the order in accordance with law before the court which 9 O.S.No.4405/2014 passed order. Therefore the plaintiff is not entitled for the discretionary relief of injunction. In this case the plaintiff sought direction to defendant No.2 and 3 withhold the voluntary retirement benefit of defendant No.1 and defendant No.1 from receiving the benefits till settlement of arrears of maintenance to the plaintiff as per orders passed in Cri.Misc. 80/2011.
8. During the pendency of suit defendant No.1 filed memo 04.04.2017 and 05.09.2017. The defendant No.1 also produced copy of order passed by the office of Accountant General Karnataka Bangalore dated 25-01- 2016. On perusal of the Memo and letter issued by the Office of Principal Accountant General, Karnataka, it reveals that the Accountant General passed Order on 25.01.2016 fixing the pension claim of defendant No.1. Further, the defendant No.1 in the Memo dated 04.04.2017 stated that, he has already received service retirement benefit. The plaintiff filed the present suit seeking relief of injunction restraining the defendant No.1 10 O.S.No.4405/2014 from receiving service retirement benefits and sought for direction to defendant No.2 and 3 to withheld service benefit of defendant No.1. In view of fixation of pension and receiving of the service benefit by defendant No.1, this court finds that the very claim made by plaintiff become infructuous. Though plaintiff sought for temporary injunction restraining the defendant No.1 from receiving the service benefits and defendant No.2 and 3 to withheld the service benefits, but said I.A. came to be dismissed. Therefore, the plaintiff is not entitled for the relief of permanent injunction and direction sought against defendants.
9. The plaintiff pleaded and contended that, as per the Order passed in Crl.Misc. 80/2011 by MMTC-I, Mayo Hall Unit, Bengaluru, the defendant No.1 has to pay Rs.1,04,000/-. If defendant No.1 is not restrained from receiving retirement benefits, it is very difficult to recover the arrears from defendant No.1. In this case, the defendants though appeared have not filed written 11 O.S.No.4405/2014 statement. However, defendant No.1 filed Memo and Order passed by Accountant General, Karnataka stating that, he has already received the retirement benefits. The plaintiff has not questioned correctness or genuineness of the Memo filed by defendant No.1. In the absence of this and considering contention of the defendant No.1,this court finds that defendant No.1 has received service retirement benefit. In view of this, the plaintiff is not entitled for the relief claimed against defendants. Therefore, for these reasons, this court answered Point No.1 in the Negative.
10. Point NO.2: In the result, this Court proceeds to pass the following:
ORDER Suit is dismissed. No costs.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 5th day of November 2018).
(RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions judge, Bengaluru.12 O.S.No.4405/2014
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 - Subbamma DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFF:
Ex.P.1 C.C. of petition in Cri.Misc.No.80/2011 Ex.P.2 C.C.of Order sheet Cri.Misc.No.80/2011 Ex.P.3 C.C. of objection Cri.Misc.No.80/2011 Ex.P.4 C.C. of Order sheet Cri.Misc.No.80/2011 Ex.P.5 & 6 C.C. Salary certificate of Defendant No.1 Ex.P.7 C.C. Judgment passed in Cri.Misc.No. 80/2011 WITNESSES EXAMINED ON BEHALF OF DEFENDANT:
- Nil -
DOCUMENTS PRODUCED ON BEHALF OF DEFENDANT:
- Nil -
(RAVINDRA. M. JOSHI) XL Addl.City Civil & Sessions judge, Bengaluru.
13 O.S.No.4405/2014
05.11.2018
P - SM (Judgment pronounced in the open
D1 :GN Court vide separate order.)
D2,3- 3rd ADGP
For Judgment. ORDER
Suit is dismissed. No costs.
XL.ACC & SJ
Bengaluru.