Karnataka High Court
Sri Revanna vs Smt K S Sathyabhama on 30 August, 2023
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2023:KHC:31308
RFA No. 1005 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 1005 OF 2018 (INJ)
BETWEEN:
1. SRI REVANNA
S/O SRI BORAIAH,
AGED ABOUT 69 YEARS,
R/AT NO.6, 5TH MAIN,
1ST CROSS,
NANJANAMBA AGRAHRA,
CHAMARAJPET,
BENGALURU - 560 018.
...APPELLANT
(BY SRI. G.B. NANDISH GOWDA, ADVOCATE)
AND:
1. SMT K.S.SATHYABHAMA
W/O SRI REVANNA,
AGED ABOUT 59 YEARS
2. SRI R GURURAJ
Digitally signed by
SHOBHA C
S/O SRI REVANNA,
Location: High Court AGED ABOUT 37 YEARS
of Karnataka
BOTH ARE R/AT NO.3,
GROUND FLOOR,
6TH CROSS, AZADNAGAR,
CHAMARAJPET,
BENGALURU - 560 018.
...RESPONDENTS
(BY SRI. C PRAKASH, ADVOCATE FOR C/R1 AND R2)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 24.04.2018 PASSED IN
O.S.NO.5101/2013 ON THE FILE OF THE XLIV ADDITIONAL CITY AND
SESSIONS JUDGE, BENGALURU DECREEING THE SUIT FOR
PERMANENT INJUNCTION.
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NC: 2023:KHC:31308
RFA No. 1005 of 2018
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant under Section 96 of C.P.C. for setting aside the judgment and decree dated 24.04.2018 passed by the XLIV Additional City Civil and Sessions Judge, Bengaluru, in O.S. No.5101/2013.
2. Heard the arguments of learned counsel for the appellant and the learned counsel for respondents.
3. The appellant was the defendant and the respondents were the plaintiffs before the trial Court. The ranking of the parties before the trial Court is retained for the sake of convenience.
4. The case of plaintiffs before the trial Court is that plaintiff No.1 is wife of the defendant and plaintiff No.2 is their son. The property bearing No.3, 6th Cross, Azad Nagar, Chamarajpet, Bengaluru, is measuring 20 ft. x 60 ft. (hereinafter referred to as 'suit schedule property') consisting of ground floor and first floor with two portions each. The plaintiffs are residing in a portion on the ground floor of the suit schedule property and the other portions of the suit schedule -3- NC: 2023:KHC:31308 RFA No. 1005 of 2018 property have been occupied by the tenants. The suit schedule property belonged to the mother of the defendant, who executed gift deed in favour of the defendant on 03.09.2004 and khatha of the said property was transferred in the name of defendant. The defendant has collected the lease amount of Rs.1,40,000/-. The plaintiffs filed a petition in Criminal Miscellaneous No.104/2015 for maintenance and separate residence under the provisions of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act'). It was their contention that the defendant said to be running auto rickshaw and gets substantial income from hiring the same. The plaintiff No.1 and defendant relationship was strained. It was also their contention that the defendant tried to alienate the suit schedule property in favour of the 3rd parties. Though, at the initial stage, plaintiff No.1 and defendant were having the cordial relationship as husband and wife, but later, it was strained due to intimacy of the defendant with one Sannamma @ Shashikala. Therefore, plaintiff No.1 sought for permanent injunction not to alienate the suit schedule property.
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NC: 2023:KHC:31308 RFA No. 1005 of 2018
5. In pursuance of notice, the defendant appeared before the Court and admitted relationship between plaintiff No.1 and himself. However, it was contended that the plaintiffs were not entitled for any relief of share in the suit schedule property, which was the self-acquired property of defendant, and denied the other averments made in the plaint. It was specifically contended that the defendant has not alienated the suit schedule property in favour of the third persons. It was also contended that there was no cause of action to file the suit and accordingly, prayed for dismissing the suit.
6. Based upon the pleadings, the trial Court framed the following issues:
1. Whether the plaintiffs prove their possession over the suit property on the date of suit?
2. Whether the plaintiffs prove that the 1st defendant has illegal connection with another woman by name Sannamma and neglected the plaintiffs and making attempts to alienate the suit schedule property to cause prejudicial to the right and interest of the plaintiffs over the suit property?-5-
NC: 2023:KHC:31308 RFA No. 1005 of 2018
3. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for?
4. What order or decree?
7. Plaintiff No.1 examined herself as P.W.1 and got marked 7 documents as per Exs.P.1 to P.7. The defendant examined himself as D.W.1 and no documents were marked. After hearing the arguments of learned counsel for the parties, the trial Court answered issue Nos.1 and 2 partly in the affirmative and issue No.3 in the affirmative in favour of the plaintiffs and decreed the suit by directing the defendant not to alienate or create any 3rd party interest in respect of the suit schedule property, without due process of law. Being aggrieved by the order of the trial Court, the appellant- defendant has filed this appeal.
8. Learned counsel for the appellant has contended that the appellant has undertaken in the evidence that he will not alienate the suit schedule property, and in spite of the same, the trial Court decreed the same, which is not correct. Further, it is contended that the respondents-plaintiffs have already filed a petition before the Magistrate under the -6- NC: 2023:KHC:31308 RFA No. 1005 of 2018 provisions of DV Act and as per Section 41(h) of Specific Relief Act, there is efficacious remedy available to the plaintiffs before the appropriate Forum. Therefore, the suit for injunction is not maintainable before the Civil Court. It is further contended that the suit schedule property has been mortgaged by the mother of the defendant for 10 years. Previously, the tenants were residing in the said house and there was strained relationship between them. Taking advantage of the same, the suit was filed by the plaintiffs. The trial Court without considering the provisions of Section 41(h) of the Specific Relief Act, has decreed the suit and same is to be set aside.
9. Per contra, learned counsel for the respondents- plaintiffs has supported the judgment and decree passed by the trial Court and contended that the trial Court considering Section 26 of DV Act held that plaintiff No.1 being the wife of defendant is also entitled to file suit before the civil Court seeking the relief of share and she is entitled to reside in the house. Based upon the decree passed by the Civil Court, the Magistrate also dismissed the miscellaneous petition holding that plaintiff No.1 has already obtained the decree before the civil Court. Therefore, Section 41(h) of Specific Relief Act is not -7- NC: 2023:KHC:31308 RFA No. 1005 of 2018 applicable and it is exception to the said Rule as per Section 26 of DV Act and prayed for dismissal of the appeal.
10. Upon hearing the arguments of learned counsel for the parties, the points that arise for consideration in this appeal are :
1. Whether the suit filed by the plaintiffs is not maintainable in view of Section 41(h) of Specific Relief Act ?
2. Whether the judgment of the trial Court calls for interference ?
11. It is an admitted fact that plaintiff No.1 is the wife of defendant and plaintiff No.2 is their son. Both of them were residing in the ground floor and presently, the defendant is not residing in the house. There were other houses occupied by the lessees under the lease agreement between the lessees and defendant. The defendant said to be received the lease amount. It is also found in the evidence of P.W.1 that the property belonged to the mother of the defendant and the suit schedule property was gifted by mother in favour of the defendant. Prior to that, the mother of the defendant obtained loan from the co-operative bank. Finally, the sister of the -8- NC: 2023:KHC:31308 RFA No. 1005 of 2018 defendant discharged the loan amount for her mother under mortgage deed for 10 years. It is also not in dispute that there was strained relationship between plaintiff No.1 and defendant and the plaintiffs are residing in a portion of the residence. In view Section 2 of DV Act, the plaintiff is entitled for a share in the said house. She also filed a criminal miscellaneous petition No.104/2015 and the said petition was dismissed. The documents produced by P.W.1 are the admitted documents. P.W.1 admitted in the cross examination that the suit schedule property was gifted by mother of defendant in favour of her husband i.e., the defendant, and she has also seen the gift deed. A suggestion was made that the plaintiffs have made false allegation that the suit schedule property was selling by the defendant. The defendant in his cross examination at page No.85 has stated that he never thought of selling the suit schedule property.
12. Perusal of the entire evidence on record, of course, the defendant has undertaken that he will not alienate the suit schedule property. There is strained relationship between the parties and therefore, there is possibility of the defendant selling the property in future. The trial Court has further -9- NC: 2023:KHC:31308 RFA No. 1005 of 2018 observed that the respondents-plaintiffs have efficacious remedy in their favour before the Magistrate/Civil Court. In this regard, the trial Court has relied upon Section 26 of DV Act. The learned counsel for respondent has also relied upon the said provision i.e. Section 26 of DV Act, wherein it is held as under:
Section 26 of DV Act: Relief in other suits and legal proceedings (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
13. Bare reading of the aforesaid provision, it clearly provides a woman for filing a suit and get the relief rather than a petition filed under the DV Act. Therefore, non obstante clause is made in Section 26 of DV Act by giving liberty to the
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NC: 2023:KHC:31308 RFA No. 1005 of 2018 woman to file a suit before any Civil Court seeking appropriate relief. Further the contention of the appellant's counsel that the efficacious remedy is available and the suit is barred, is not acceptable.
14. The trial Court has held that there was strained relationship between plaintiff No.1 and the defendant. Of course, the petition filed by plaintiff No.1 under Section 12 of DV Act in Miscellaneous petition No.104/2015 came to be dismissed on 22.04.2015, after decreeing the suit by the trial Court. The magistrate dismissed the Miscellaneous petition of plaintiff No.1 mainly on the ground that the plaintiffs have already obtained injunction from the civil Court restraining her husband from dispossessing her from the shared house.
15. Considering the order of the Magistrate where the Magistrate has passed an order holding that the civil Court has already decreed the suit in favour of the plaintiffs restraining the defendant not to alienate the suit schedule property, and, in view of Section 26 of the DV Act, the trial Court while passing the judgment has considered all the points and restrained the defendant not to alienate the suit schedule
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NC: 2023:KHC:31308 RFA No. 1005 of 2018 property, without due process of law, therefore, there is no hurdle for the appellant-defendant to evict the plaintiffs, without due process of law. Therefore, the judgment and decree passed by the trial Court cannot be interfered with by this Court.
Accordingly, the appeal filed by the appellant- defendant is hereby dismissed.
Sd/-
JUDGE CS List No.: 1 Sl No.: 46