Karnataka High Court
Ms. Priti. R vs Mr. Rakesh Rajora on 17 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.19491/2016(GM-FC)
BETWEEN:
MS. PRITI. R
AGED 41 YEARS,
D/O. MR. DAMODAR NAWKA,
RESIDING AT FLAT 302 E,
RJ GARDENS, 17 E CROSS,
INDIRANAGAR 2ND STAGE,
BENGALURU - 560 038. ... PETITIONER
(BY SRI. NIDHISHREE B.V., ADVOCATE)
AND:
MR. RAKESH RAJORA
AGED 42 YEARS,
S/O. MR. SHYAM SINGH
RAJORA, RESIDING AT
NO.418, 13TH MAIN,
KORAMANGALA III BLOCK,
BENGALURU - 560 078. ... RESPONDENT
(BY SMT. MEENA VENUGOPAL, ADVOCATE)
THIS WRIT PETITION FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DATED 30.01.2016 PASSED BY THE II ADDL. PRINCIPAL JUDGE,
FAMILY COURT, BENGALURU IN O.S.269/2013 AT ANNEX-G AND
CONSEQUENTLY ALLOW THE INTERLOCUTORY APPLICATION I.A.4
FILED BY THE PETITIONER FOR DEPOSIT OF RENTS AT ANNEX-E AND
ETC.,
2
THIS PETITION COMING ON FOR PRELIMINARY HEARING - B
GROUP PHYSICAL HEARING/VIDEO CONFERENCING HEARING
(OPTIONAL), THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In the instant petition petitioner has prayed for the following relief:
Wherefore the petitioner prays that this Hon'ble Court may be pleased to issue a writ of Certiorari or any other appropriate, writ or order quashing the impugned order dated 30.01.2016 passed by the II Addl. Principal Judge, Family Court, Bengaluru, in O.S. No.269/2013, (Annexure 'G') and consequentially allow the interlocutory application, I.A. No.4 filed by the Petitioner for deposit of rents, (Annexure 'E') and grant such other and further reliefs as are just.
2. Brief facts of the case are that petitioner and respondent were married on 27.11.1996. Both petitioner and respondent jointly purchased the schedule property bearing Villa No.46, Chestnut Block in the project Prestige Ozone, situated at Hagadur Village, K.R. Puram Hobli, Whitefield, Bangalore. Due to certain domestic issues, petitioner and respondent got a decree of divorce on mutual understanding on 16.07.2013. Undisputedly, memorandum of settlement under Section 89 of 3 CPC read with Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2005 dated 16.07.2013 is silent about the sharing of the aforementioned schedule property among the parties. In this background, the respondent-husband filed O.S. No.269/2013 before the II Additional Family Judge at Bengaluru seeking declaration as absolute owner of the entire schedule property including 50% of the share, right, title and interest, which is in the name of the petitioner-wife and to grant the possession of the entire schedule property. On 15.04.2015, petitioner-wife filed an application-IA. No.4 under Order XXXIX Rule 10 read with Section 151 of CPC seeking deposits of rent earned from the schedule property i.e., jointly owned by the petitioner and respondent. Respondent-husband filed objections to the aforesaid IA No.4 on 12.08.2015. On 30.01.2016, the Trial Court proceeded to dismiss IA. No.4 filed by the petitioner under Order XXXIX Rule 10 read with Section 151 of CPC for deposits of rent.
3. Petitioner feeling aggrieved and dissatisfied with the order dated 30.01.2016 has presented this petition. 4
4. Learned counsel for the petitioner submitted that decree of divorce dated 16.07.2013 is undisputed, so also memorandum of settlement filed in M.C. No.3872/2012. It is pointed out that memorandum of settlement among the parties are silent in respect of schedule property. Consequently, petitioner is entitled 50% of share in the schedule property. She has also pointed out certain payments made on behalf of the petitioner towards property and she has produced the documents before the Trial Court. She has also pointed out that various correspondence have been made by the respondent before decree of divorce relating to share of the schedule property. It is submitted that schedule property was let out for rent as is evident from the Lease Deed dated 14.06.2010. The rent was fixed at Rs.1.00 lakh plus maintenance charges at Rs.20,180/- per month. The Trial Court has not appreciated the payments made by the petitioner towards the property and Lease Deed dated 14.06.2010, so also memorandum of settlement dated 16.07.2013, where the issue in respect of schedule property is silent. Consequently, Sale Deed dated 07.10.2006 holds good even to this day. In other words, it is joint property among the petitioner and respondent.
5
5. Per contra, learned counsel for the respondent submitted that petitioner has not paid EMI and she has also not contributed in respect of schedule property. Such contention could have been taken if any clause were incorporated in the memorandum of settlement filed before the jurisdictional Court on 16.07.2013 in M.C. No.3872/2012. It is also contended that matter requires to be heard in the suit. The question for consideration in the present petition is only in respect of interim relief. Thus, petitioner has not made out a case so as to interfere with the order of the Trial Court.
6. Heard the learned counsel for the parties.
7. Undisputed facts are that petitioner and respondent were married on 27.11.1996 and they had jointly purchased property under a registered Sale Deed dated 07.10.2006. They got decree of divorce on 16.07.2013 read with memorandum of settlement.
Question for consideration in the present petition is whether respondent is liable to pay 50% of the rent arising out of rented schedule property or not?
6
8. On perusal of the Sale Deed dated 07.10.2006 and memorandum of mutual settlement dated 16.07.2013, it is evident that prima-facie, petitioner has her share in the schedule property even after the decree of divorce dated 16.07.2013. The trial Court has not apprised the aforesaid documents. The reasons assigned in para Nos.7 and 8 are not suffice to reject the petitioner's I.A.4 in O.S. No.269/2013. The petitioner has made out a case so as to interfere with the order dated 30.01.2016 on I.A. No.4 in O.S. No.269/2013. Accordingly, Annexure-G is set aside. Petitioner is hereby directed to pay 50% of the EMI amount towards the schedule property from time to time and further, respondent is hereby directed to deposit 50% of the rent received in respect of rented schedule property before the jurisdictional Court. The aforesaid arrangement shall be made at the earliest not later than six months. Accordingly, writ petition stands allowed.
9. At this stage, learned counsel for respondent- husband submitted that petitioner is liable to pay arrears of EMI. Such suggestion cannot be appreciated at this distance of time for the reasons that respondent-husband in all fairness should have requested the petitioner at the earliest point of time. 7 Pendency of O.S.No.269/2013 would not be hurdle for the parties to settle the schedule property on mutual basis instead of dragging the litigation for years together. Therefore, parties are hereby directed to go for mutual settlement in respect of the schedule property.
Sd/-
JUDGE MBM/BS