Karnataka High Court
Shri M R Krishna vs Shri M Ramakrishnappa on 2 December, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF DECEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.1550/2022 (GM-CPC)
BETWEEN :
SHRI M R KRISHNA
S/O M RAMAKRISHNAPPA
AGED 49 YEARS
OCC: AGRICULTURE
BUSINESS
NO 37, NAVYA NAGAR
JAKKUR MAIN ROAD
JAKKUR
BENGALURU NORTH
BENGALURU 560064.
... PETITIONER
(BY SRI. ASHOK R KALYANASHETTY, ADVOCATE)
AND :
1. SHRI M RAMAKRISHNAPPA
S/O MUNISHAMAPPA
AGED 73 YEARS
OCC: RETD BEL EMPLOYEE
(PREVIOUSLY AT FLAT NO 101
SRINIDHI ASHRITHA APTMT
AMRUTHAHALI
BENGALURU NORTH
BENGALURU -92
NOW AT 423
KRISHNA REDDY BUILDING
KHB COLONY, KORAMANGALA
BENGALURU 560034.
2
2. SHRI M R SHYAM
S/O M RAMAKRISHNAPPA
AGED 43 YEARS
OCC : PVT SERVICE
FLAT NO 101
SRINIDHI ASHRITHA APRTMENT
SRI RENUKA YELLAMMA TEMPLE ROAD
NEAR RACHANAHALLIKERE
AMRUTHAHALLI
SAHAKARNAGAR POST
BENGALURU 560092.
3. SMT M R SUMA
W/O L G VENAKTESH
AGED 45 YEARS
OCC: HOUSE WIFE
NO 100/1, 4TH MAIN ROAD
GANGAPPA BLOCK
R T NAGAR POST
BENGALURU 560032.
4. SMT M R UMADEVI
W/O MANJUNATH
AGED 41 YEARS
OCC: HOUSE WIFE
NO 423, KRISHNA REDDY BUIDING
K H B COLONY, 5TH BLOCK
KORAMANGALA
BENGALURU 560034.
... RESPONDENTS
(BY SRI. H.R. SREEDHARA, ADVOCATE FOR R1;
SRI. B.V. RAMAMOORTHY, ADVOCATE FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 30.10.2021 PASSED BY THE IV
ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY
(CCCH-21) AT ANNX-E ALLOWING THE IA AS PRAYED FOR
FILED BY THE DEFENDANT NO.1/ RESPONDENT NO.1
HEREIN U/S 151 CPC FOR PAYMENT OF RS. 1,25,000.00
3
PER MONTH TOWARDS HIS MEDICAL EXPENSES AND
MAINTENANCE AND IN DEFAULT FOR PERMISSION TO
SELL SUIT A SCHEDULE PROPERTY BEARING OLD KHATA
NO.373, NEW CMC BYATARAYANAPURA KHATA
NO.660/97/2/37 OF JAKKUR VILLAGE, YELAHANKA
HOBLI, BENGALURU NORTH TALUK BENGALURU-560092
(IT IS NOT SOUTH TALUK) MEASURING EW 30 PLUS 35/2
X NS 16 PLUS 37/2 TOTALLY MEASURING 861.25 SQ FT.
IN O.S.NO.26284/2020 AND DISMISS THE SAID I.A. IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is by one of the defendants in O.S.No.26284 of 2020 on the file of the IV Additional City Civil and Sessions Judge, Bengaluru [for short 'the civil Court']. The petitioner has impugned the civil Court's order dated 30.10.2021, which reads as under:
"Case is taken on Board counsel for defendant No.1 has filed IA u/s 151 cpc for direction to plaintiff to pay medical expenses and maintain of Rs.1,25,000/- per month and in default for permission to sell A schedule property and filed memo with document and affidavit of defendant No.1 separately if some documents. 4 Counsel for plaintiff No.1 and 2 filed memo stating that they no objection to the above said IA and they are duty bound to look after defendant No.1.
In view of memo by plaintiffs agreeing for paying the maintains amount and stating no objection to the IA above, same is allowed as prayed for."
2. The third and the fourth respondents, who are the daughters of the first respondent, have commenced the suit in O.S.No.26284 of 2020 for partition asserting that they along with their two brothers [the petitioner and the second respondent] and the father - the first respondent would be entitled to one-fifth share each in the suit schedule properties. This suit is contested not just by the siblings but also by the father who has filed the subject application under Section 151 of CPC with the civil Court for directions to the children, namely, the petitioner and the second to fourth respondents to pay a sum of Rs.1,25,000/- per month as medical 5 expenses and towards maintenance with a further prayer for leave to sell the suit schedule property in the event the children fail to pay the amount directed in continuation of his defence in the written statement that the suit schedule 'A' property is a self-acquired property.
3. The first respondent, insofar as the request for payment of the medical expenses and maintenance, has stated that he suffers from chronic kidney disease Stage 5D and he is on dialysis twice a week. He has furnished certain details of the expenditure that he has to incur for medicine and for his maintenance. The civil Court has allowed the application, as is seen from the impugned order, because the learned Counsel for the fourth respondent has stated that these respondents would have no objection if the application is allowed. The petitioner's grievance is that the civil Court has 6 allowed the application without hearing him and he should have been given an opportunity.
4. Sri B.V. Ramamoorthy, the learned counsel for the third and the fourth respondents, submits that in view of the petitioner's grievance with the impugned order, this Court could consider allowing the petition restoring the application for reconsideration and these respondents would pay the first respondent certain amounts which would enable him to defray immediate medical expenses until the application is decided. Sri Ashok R Kalyanshetty, the learned Counsel for the petitioner, also submits that the first respondent's application could be restored for reconsideration with due opportunity to all the concerned to contest and the petitioner would pay certain amount to enable the respondent to defray immediate medical expenses.
5. Both Sri B.V.Ramamoorthy and Sri Ashok R Kalyanshetty submit that this submission is without 7 prejudice to the respective objections, if any, to the application. The second respondent is not served with the notice of the petition and there is nothing on record to indicate that he is aggrieved by the civil Court's order. This Court is of the considered view that the petition must be disposed in the light of the aforesaid submissions with suitable orders to protect the second respondent's interest but dispensing notice. Hence, the following:
ORDER [a] The petition is allowed, and the civil Court's impugned order is quashed restoring the first respondent's application for reconsideration.
[b] The petitioner as also the second to fourth respondents shall be at liberty to file statement of objections, if any to the application.8
[c] The parties shall file their objections as aforesaid, within two weeks from the date of next hearing before the civil Court and the civil Court shall dispose of the application within four [4] weeks from the date of receipt of a certified copy of this order.
[d] The petitioner, third respondent and the fourth respondent shall pay Rs.60,000/- to the first respondent within two [2] weeks from today. The civil Court shall consider that such amount has been paid by the petitioner and third - fourth respondents during the pendency of the application without prejudice to their objections and 9 pass suitable orders even as against the second respondent.
SD/-
JUDGE nv