Karnataka High Court
Smt Leena Abraham vs Byju Joseph on 24 October, 2024
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NC: 2024:KHC:43058
WP No. 23085 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 23085 OF 2024 (GM-CPC)
BETWEEN:
SMT. LEENA ABRAHAM
W/O. BYJU JOSEPH,
AGED ABOUT 42 YEARS,
OCC: HOUSE WIFE,
A-901, BRIGADE GARDENIA APARTMENT,
J. P. NAGAR, 7TH PHASE,
BANGALORE-560 078.
...PETITIONER
(BY SMT. LEENA ABRAHAM, PETITIONER (PARTY-IN-PERSON))
AND:
BYJU JOSEPH
AGED 45 YEARS,
S/O. T.J. VARGHESE,
Digitally signed RESIDING AT (1) NO.4/1, 5TH CROSS,
by THARAMANNIL HOUSE,
MARKONAHALLI
RAMU PRIYA MUDDANNA GARDEN,
Location: HIGH VALAGARAHALLI ROAD,
COURT OF HARSHA LAYOUT, KENGERI,
KARNATAKA
BANGALORE-560 060,
AND ALSO RESIDING AT (2) BYJU JOSEPH,
PROJECT MANAGER,
M/S. INTELLIGENT SOFTWARE
SOLUTIONS PVT. LTD.,
2A/3RD FLOOR,
SOBHA ALEXANDER PLAZA,
16/2, COMMISSIONERATE ROAD,
BENGALURU-560 025.
ALSO RESIDING AT (3) NO. 6-7-1,
MINAMI YOSHINARI,
-2-
NC: 2024:KHC:43058
WP No. 23085 of 2024
AOBA-KU, SENDAI,
MIYAGI-989-3204.
JAPAN,
PASSPORT NUMBER: S5618316,
PAN NUMBER: AESPJ6488B.
...RESPONDENT
(BY SMT. BHUSHANI KUMAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENT TO PAY ONE CRORE (1 CRORE) FOR COMPENSATION
FOR MENTAL AGONY, CHEATING AND PHYSICAL ABUSE INDUCED TO
THE PETITIONER AND HER MINOR CHILD OF 7 YEARS AND FOR
OTHER RELIEFS AS THE HON'BLE PRL. CITY CIVIL AND SESSIONS
JUDGE (CCH-27) DEEMS FIT BY CONSIDERING THE SETTLEMENT
TERMS IN OP 1415/2021 (ANNEXURE-C, H) AND I.A NO.3
(ANNEXURE-F) IN OS 2892/2022 AND ALSO BASED ON
AGREEMENTS DATED 15.08.2015 AND 06.02.2018 VIDE ANNEXURE-
C, D, F AND H AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The defendant in O.S.No.2892/2022 pending trial before the XII Additional City Civil and Sessions Judge, Bengaluru (henceforth referred to as 'Trial Court') has filed this writ petition challenging an order dated 02.08.2024 by which, an -3- NC: 2024:KHC:43058 WP No. 23085 of 2024 application (I.A.No.3) filed by her under Section 10 read with Section 151 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC') to dismiss the suit was rejected.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner herein was the defendant while the respondent was the plaintiff before the Trial Court.
3. (i) The suit in O.S.No.2892/2022 was filed for partition and to separate the half share of the plaintiff in the suit schedule property or ascertain the value of the suit schedule property and direct the defendant to pay half share out of the value of the suit schedule property.
(ii) The sum and substance of the case of the plaintiff was that he and the defendant were a married couple and wife and they had a child, who was born on 10.05.2017. The plaintiff claimed that his father had purchased a plot for him at Kumbalagodu. His father sold the plot during the year 2003 and handed over the money to him and he purchased sites bearing site Nos.5 and 6 situate at Kengeri village, Kengeri Hobli, Bengaluru South Taluk in terms of a sale deed dated -4- NC: 2024:KHC:43058 WP No. 23085 of 2024 24.11.2003. The plaintiff contended that he constructed a house thereon and thereafter he retransferred the property to his father in terms of a gift deed dated 23.12.2009. The defendant insisted the property to be obtained back and registered in her name. The plaintiff therefore, prevailed upon his father to execute a gift deed conveying the said property to the plaintiff. Accordingly, a gift deed was executed in his favour on 13.02.2013. Later, the plaintiff transferred 50% of the undivided right in the said property to the defendant in terms of a gift deed dated 07.03.2014. The plaintiff alleged that the defendant was pressurizing him to sell away the house at Kengeri and purchase a flat at Brigade Gardenia. However, the plaintiff resisted the same. He claimed that when he was preparing to go to Japan on an overseas assignment, the defendant insisted to execute a power of attorney authorizing her deal with the property. The plaintiff therefore, executed a Power of Attorney dated 16.10.2018 in favour of defendant to deal with the property. The plaintiff claimed that taking advantage of this, the defendant sold away the Kengeri property for a total sale consideration of Rs.1,04,71,000/- though the actual consideration was Rs.1,20,00,000/-. The -5- NC: 2024:KHC:43058 WP No. 23085 of 2024 plaintiff claimed that his share in the property was Rs.60,00,000/-. The plaintiff claimed that the defendant had access to all the passwords of the bank, cheque book etc.,. The defendant taking advantage of the same, invested a sum of Rs.70,00,000/- out of the sale consideration received, to purchase a flat at Brigade Gardenia, Bengaluru in her own name in terms of sale deed dated 29.06.2019. She also transferred remaining sum of Rs.25,00,000/- to her independent account. The plaintiff therefore, contended that he is entitled to 50% of the value of the flat at Brigade Gardenia and thus, filed a suit for the reliefs mentioned above.
4. The defendant entered appearance and filed an application under Section 10 read with Section 151 of CPC to "dismiss/reject the entire suit as per Order II Rule 2 of CPC." In the affidavit accompanying the application, she alleged various instances that marred her marriage with the plaintiff. She claimed that she had filed a petition for divorce against the plaintiff before the Family Court at Pathanamthitta, Kerala State, in O.P.(Divorce).No.1415/2021 as well as a petition for maintenance in M.C.No.86/2022 and domestic violence case in M.C.No.24/2022 before the CJM Court, Pathanamthitta. She -6- NC: 2024:KHC:43058 WP No. 23085 of 2024 contended that a settlement was arrived at in O.P.(Divorce).No.1415/2021 whereby, the plaintiff had agreed to file a joint petition for divorce before the Family Court at Pathanamthitta and agreed to withdraw O.S.No.2892/2022 and M.C.No.209/2022. She claimed that the plaintiff had agreed not to trouble her with any more litigations on her property. She contended that in the compromise reported in O.P.(Divorce).No.1415/2021, the plaintiff had agreed to withdraw the suit filed in O.S.No.2892/2022. She therefore, prayed the Trial Court to put an end to the proceedings before it.
5. The said application was opposed by the plaintiff admitting the fact that a compromise was reported in O.P.(Divorce).No.1415/2021 before the Family Court at Pathanamthitta but the parties did not submit a settlement as ordered by the Family Court at Pathanamthitta. Therefore, it was contended that the settlement was not concluded and was not acted upon. Hence, it was contended that the basis for the application under Section 10 read with Section 151 of CPC, did not exist and hence, the application filed by the defendant to terminate the proceedings was not maintainable. -7-
NC: 2024:KHC:43058 WP No. 23085 of 2024
6. The Trial Court after considering the contentions of both the parties, held that the issues in O.P.(Divorce).No.1415/2021 and the issues in O.S.No.2892/2022 were substantially different from each other. It held that except the fact that the plaintiff and defendant were common in both the proceedings, the reliefs sought for in O.S.No.2892/2022 were not sought for in any prior suit. Therefore, the Trial Court rejected the application in terms of the impugned order.
7. Being aggrieved by the said order, the defendant is before this Court in this writ petition.
8. The petitioner/defendant who has appeared in person contended that a settlement was already reported in O.P.(Divorce).No.1415/2021 and that as part of the settlement, the plaintiff had agreed to withdraw the suit in O.S. No.2892/2022. Therefore, she contends that the suit has to be closed forthwith.
9. Per contra, the learned counsel for the plaintiff contends that though a settlement was reached in O.P.(Divorce).No.1415/2021, no petition for dissolution of the -8- NC: 2024:KHC:43058 WP No. 23085 of 2024 marriage was filed. Hence, she contends that the settlement reached in O.P.(Divorce).No.1415/2021 is not acted upon and is therefore not enforceable.
10. The petitioner/defendant, who is present in person, has placed on record innumerable facts relating to her marriage with the plaintiff, circumstances that led to the marriage going sour, various claims made by her against the plaintiff as well as claims made by the plaintiff against her, allegations of impotency by her against the plaintiff etc., These facts are not relevant for the purpose of this writ petition. The only relevant fact is the agreement entered into between the plaintiff and the defendant in Family Court at Pathanamthitta in O.P.(Divorce).No.1415/2021, whereby the plaintiff had agreed to withdraw the suit filed by him in O.S.No.2892/2022 if the defendant agreed to file a petition for dissolution of marriage. The marriage is not dissolved and the defendant has not taken any steps to file a petition for dissolution of marriage. If that be so, the settlement that was reported in O.P.(Divorce).No.1415/2021 is not acted upon and therefore, the plaintiff cannot be compelled to withdraw the suit and the suit filed by him cannot be closed or terminated at the instance -9- NC: 2024:KHC:43058 WP No. 23085 of 2024 of the defendant. Therefore, the application filed by the defendant under Section 10 read with Section 151 of CPC is wholly mischievous in as much as there is no proceeding before any Court between the parties seeking the reliefs that are sought for in O.S.No.2892/2022.
11. Hence, this writ petition lacks merit and is dismissed.
12. In view of dismissal of the writ petition, pending I.As., if any, do not survive for consideration and the same stand dismissed.
Sd/-
(R. NATARAJ) JUDGE PMR List No.: 2 Sl No.: 4