Kerala High Court
Anitha Kesavadas vs K.Babukuttan Pillai on 13 March, 2017
Bench: A.M.Shaffique, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY, THE 13TH DAY OF MARCH 2017/22ND PHALGUNA, 1938
Mat.Appeal.No. 311 of 2015 ()
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OP. 1521/2011 OF FAMILY COURT, ERNAKULAM
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APPELLANT(S):
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ANITHA KESAVADAS,
AGED 47 YEARS, D/O.KESAVADAS,
RESIDING AT SRIVANI, PERANDOOR ROAD,
KALOOR, COCHIN-17.
BY ADVS.SRI.T.M.RAMAN KARTHA
SMT.SYAMA MOHAN
ANITHA KESAVADAS
RESPONDENT(S):
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K.BABUKUTTAN PILLAI,
AGED 55 YEARS, S/O.LATE KUNJIKRISHNA PILLAI,
AYINIKKATTU VEEDU, KIDANGAYAM,NORTH MYNAGAPPALLY,
KARUNAGAPPALLY, KOLLAM.
BY ADV. SRI. BABUKUTTAN PILLAI (PARTY IN PERSON)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
13-03-2017, ALONG WITH MA. 403/2015 & CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SKG
A.M.SHAFFIQUE, J
&
K.RAMAKRISHNAN, J
* * * * * * * * * * * * * *
Mat.Appeal Nos.311, 403, 404, 562
&
575 of 2015
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Dated this the 13th day of March 2017
J U D G M E N T
Shaffique, J Since these appeals arise out of separate original petitions decided by the Family Court by a common judgment dated 07/02/2015, they are heard and decided together.
2. M.A.No.311/2015 has been filed by the petitioner in O.P.No.1521/2011 and the respondent's appeal is M.A.No.403/2015. M.A.Nos.562/2015 and 575/2015 have been filed by the petitioner in O.P.No.508/2011 and the petitioners in O.P.No.662/2011. M.A.No.404/2015 has been filed by the respondents in O.P.No.600/2010 by which the Family Court had directed that the appellant should be prosecuted under Order 39 Rule 2A of the CPC.
3. Brief outline of the factual circumstances involved in the matrimonial dispute which has arisen in the facts of the case can be narrated as under:
Mat.Appeal Nos.311/2015 & conn.cases 2
(i) The petitioner/wife and the 1st respondent in O.P.No.600/2010 are the parties to the marriage which was solemnized, as per Hindu religious rites and custom on 05/11/1989. Marriage was dissolved as per judgment dated 28/2/2011 in O.P.471/2010 of the Family Court, Ernakulam. They have two children and both have become majors presently. After the marriage, petitioner and 1st respondent were living at the parental home of the petitioner at Kaloor. Petitioner claims to have started a small scale industrial unit by name and style M/s.Snowhite Soaps and Detergents. It is alleged that when the 1st respondent started interfering with the business and management of the unit, their marital life became strained, he started harassing her and demanded that the unit, be transferred in his name. The 1st respondent left the petitioner and children in August, 2009 and is living separately. On account of the nuisance created by the respondent, petitioner filed O.P.No.1683/2009 before the Family Court, seeking for a permanent prohibitory injunction restraining the 1st respondent from interfering with the affairs of the petitioner. Later, the parties settled the disputes based on an agreement dated 30/11/2009. A decree was passed Mat.Appeal Nos.311/2015 & conn.cases 3 on the basis of the compromise agreement. She further alleged that she was forced to enter into an agreement dated 8.2.2007, by which she agreed to lease out an extent of 20 cents on the north eastern side of the her property for a period of 10 years, in favour of the 2nd respondent, but the lease deed was not registered. When the matrimonial disputes arouse between the petitioner and the 1st respondent, the respondents attempted to start another unit, M/s Snow Valley Cosmetics in the name of the 2nd respondent, in the same premises. According to her, 2nd respondent was only a name lender and the 1st respondent himself was conducting business. Respondents filed written statement contending that the petition is barred by principles of res judicata on account of the compromise entered into between the parties after the decision in O.P.No.1683/2009. He also narrated the manner in which he got experience in conducting the unit and the manner in which his brother had arranged the putting up of a unit etc. It is submitted that in terms of the agreement, though he had complied with his part of the agreement, the petitioner did not transfer 25 cents of land in his name. It is stated that without performing the terms of the Mat.Appeal Nos.311/2015 & conn.cases 4 compromise, she had filed injunction suit against the petitioner, and had issued letters to all the licensing authorities to cancel the license of the unit.
(ii) O.P.No.508/2011 has been filed by the petitioner/husband against the 1st respondent/wife and her father.
His claim is for Rs.12 lakhs, which he alleges to have expended for completing construction of the residential house. It is contended that they have constructed a house having a plinth area of 3400 sq.feet in the year 2007. He was shouldered with the responsibility to complete the construction of the house. He had incurred Rs.12 lakhs to complete the construction, out of which, Rs.5 Lakhs was spent for purchase of wood and for its craft work and 7 lakhs for mason work. The construction work was completed in the year 2009. Respondents jointly filed a written statement denying the above allegations.
(iii) In O.P.No.662/2011, 1st petitioner is the husband and the 2nd petitioner is his brother. They sought for recovery of Rs.9,71,065/-, from the respondent/wife, inter alia contending that within five months after the compromise arrangement between the parties in O.P.No.1683/2009, O.P.No.600/2010 was Mat.Appeal Nos.311/2015 & conn.cases 5 filed and an ex parte interim injunction was obtained by her, as a result of which they were restrained from entering into the property, and the units had to be closed down which caused much financial crisis. According to 1st petitioner, he had spent Rs.2,00,000/- for purchase of raw material which could not be utilised. He lost the monthly income from the unit to the tune of Rs.60,000/- per month. He computed damages towards loss of income from the business at Rs.6,20,000/-. His brother, the 2nd petitioner claims to have spent Rs.16,78,356/- for installing machinery and connected expenses. He incurred bank charges at Rs.58,375/- and interest to the loan amounting to Rs.2,08,756/-. It is contended that grant of Rs.3,49,500/- from the Khadi Board has been cancelled. The 2nd respondent also claimed certain amounts and computed the total loss at Rs.27,71,065/-. However the claim is restricted to Rs.9,71,065/-. Respondent/wife filed written statement denying the above allegations.
(iv) O.P.No.1521/2011 was filed by the petitioner/wife alleging that despite the order of interim injunction, the respondent/husband continued to be in occupation of the factory building violating the terms of the compromise. Though as per Mat.Appeal Nos.311/2015 & conn.cases 6 the terms of the compromise, she had agreed to transfer 25 cents of land in favour of the 1st respondent on certain conditions, as he did not comply with the conditions imposed in the agreement, the transfer was not effected. Petitioner claimed certain amounts from the 1st respondent on the allegation that he has neglected the petitioner and her children and had not paid the amounts legally due to her. She claimed 75 sovereigns of gold ornaments or in the alternative, its market value, past maintenance from December 2010 at Rs.7,000/- per month, future maintenance at the same rate, Rs.1,60,000/- as compensation for illegal occupation of her property and the industrial unit, a sum of Rs.4,33,000/- as educational expenses of the children, an amount of Rs.15,000/- advocate fee and other litigation expenses. The 1st respondent filed objection inter alia contending that she was not given 75 sovereigns of gold at the time of marriage, whereas she had only less than 50 sovereigns of gold ornaments. After marriage, he bought her gold and diamond ornaments. He contended that he started the industrial unit and it was conducted by him, he had purchased the property and the business was started availing loan. Petitioner remained as house wife having Mat.Appeal Nos.311/2015 & conn.cases 7 no business back ground. She only intends to lead a luxurious life. He denied the fact that he had taken any of her gold ornaments. He also denied the other allegations regarding his jealousy on the business being conducted by the petitioner. He further submits that he was forced to stop the unit when the petitioner filed O.P.No.1682/2009. Since he had concern about the employees of the industrial unit, he entered into a compromise. By virtue of the compromise, petitioner had agreed to transfer the industrial unit along with 25 cents of land in his favour. Since the business had to be closed after the filing of O.P.No.1683/2009, he went into financial crisis and was forced to enter into a compromise agreement. Petitioner entered into a lease arrangement with his brother and they started a new unit. Though there was an agreement to transfer 25 cents of land to the 1st respondent as per the compromise, she did not do so. He also denied the liability to pay any amount, as claimed.
4. All the cases were jointly tried and O.P.600/2010 was taken as the leading case. Evidence consisted of oral testimony of PWs 1 to 7 on behalf of the petitioner/wife and RWs 1 and 2 on behalf of the respondents. The petitioners relied upon Exts.A1 to Mat.Appeal Nos.311/2015 & conn.cases 8 A44 and respondents relied upon Exts.B1 to B81. Exts.X1 to X8 were marked as Court exhibits. The Family Court, on a consideration of the materials placed before it, dismissed O.P.600/2010, 508/2011 and 662/2011. O.P.No.1521/2011 was allowed in part allowing past maintenance at Rs.4000/- per month from the date of filing the petition, future maintenance at Rs.7000/- per month, Rs. 20,000/- per month as damages for use and occupation of the building from the date of O.P. till vacating the property with the industrial unit, Rs. 3 lakhs as educational expenses of the children, and litigation expenses of Rs.15,000/-. The claim for return of gold ornaments or its value was disallowed. Respondents 1 and 2 are also found to have committed violation of the interim injunction order and liable to be prosecuted under Order 39 Rule 2A of the Code of Civil Procedure.
5. The appellant in Mat.Appeal No.311/2015 is represented by learned counsel Sri.T.M.Raman Kartha. The appellant in the other appeals have appeared in person for himself and as power of attorney holder of his brother. We heard both the parties.
Mat.Appeal Nos.311/2015 & conn.cases 9
6. Though common evidence was taken in all these cases, taking into account the separate reliefs that are sought for in each of the cases, we thought it is better to consider the appeals separately.
7. Mat.Appeal Nos.311/2015 and 403/2015 arise out of the judgment in O.P.No.1521/2011. Parties are referred to as shown in the original petition. Since both the parties have filed separate appeals the correctness of the judgment in its entirety has to be evaluated based on the facts and circumstances of the case.
8. The first question to be considered is whether the 75 sovereigns of gold ornaments acquired by the petitioner was entrusted to the respondent. The petitioner only relied upon the wedding photographs to prove that she had 75 sovereigns of gold ornaments at the time of marriage. Family Court observed that the photographs by itself may not prove that the petitioner was having 75 sovereigns of gold ornaments. In fact, the respondent had a case that what was offered was only 50 sovereigns of gold, and he had not appropriated it in any manner. The Court below found that there was no pleading on proof to the effect that the gold ornaments were entrusted by the petitioner to Mat.Appeal Nos.311/2015 & conn.cases 10 the respondent and it was appropriated by him. Having perused the records, we do not find any reason to interfere with the said finding of the Court below. The marriage between the parties was on 05/11/1989 and they started living separately only since 2009, and that too on account of personal reasons and business rivalry. Unless there is pleading and proof regarding entrustment of gold ornaments and its appropriation by the husband, no decree can be granted for return of gold ornaments. The Court below had correctly evaluated the pleadings and evidence, which does not call for any interference.
9. The next question to be considered is whether the Court below was justified in directing payment of past and future maintenance. It is stated that at the time of marriage, respondent was working in a private company. Later, he resigned the job and went abroad, but he came back and started an industrial unit at Panangadu as a partnership firm which was not successful. Petitioner started the unit Snowhite Enterprises which was being successfully run by the petitioner. However, on the strength of a power of attorney executed by the petitioner in favour of the respondent, it is alleged that he trespassed into the property and Mat.Appeal Nos.311/2015 & conn.cases 11 started to run business. He also managed to obtain a lease deed in favour of his brother and under the guise of the said lease arrangement, another industrial unit was established in the said property. It is submitted that the issue between the parties were resolved on the basis of a compromise agreement, by which the respondent was permitted to run the unit for a period of one year. By virtue of the agreement, respondent also agreed to release all the documents relating to the petitioner and kept as mortgage securities. It is contended that, as per the agreement, the respondent did not comply with the terms and accordingly she started suffering loss of Rs.20,000/- per month. The Family Court found that the respondent was running the unit, in violation of the agreement entered into between the parties. It is further found that the respondent was allowed to occupy the building and run it on a lease arrangement on an agreed sum of Rs.12,000/- per month to be paid to the petitioner. It is found that though he has paid the amount during the period of agreement, thereafter no amount was paid. Therefore, she has lost all her source of income. She has also cancelled various licences obtained by her to run the industrial unit, and from December 2010, she alone is Mat.Appeal Nos.311/2015 & conn.cases 12 taking care of the family and in order to meet the expenditure. Hence she claimed past and future maintenance at Rs.7000/- per month. She claimed past maintenance from December 2010.
10. The respondent's main contention is that, having entered into an agreement, Ext.A3, the parties were bound to comply with the terms of the agreement. The petitioner did not comply with the terms of the agreement and in fact decided to act against the interest of the respondent by issuing letters to all competent authorities to close down the unit, as a result of which, the unit had to be closed down. It is also contended that when the parties have entered into an agreement, by which all the rights and obligations have been crystalised, there was no reason for another claim being made. The Family Court had proceeded on the basis that the respondent was in illegal possession of the property since no action was taken by him for complying with the terms of the agreement. On the other hand, contention urged by the respondent is that he had complied with all the terms of the agreement, but it was on account of the fact that the petitioner was instrumental in cancelling all the licences that he was unable to run the unit and settle the liabilities immediately. The Mat.Appeal Nos.311/2015 & conn.cases 13 respondent contended that he has no income since the unit stands closed. The Family Court however observed that respondent is bound to look after the divorced wife till she remarries and found that the claim for maintenance at Rs.7,000/- per month was reasonable. According to the appellant, his only source of income was from the unit and on closure of the unit, he has no source of income. Presently he does not have any income and therefore he cannot be asked to pay any maintenance to the wife. The claim for past maintenance was from December, 2010, whereas Court below allowed past maintenance from the date of petition, which clearly indicates lack of application of mind. He has also a contention that all disputes between the parties were settled as per Ext. A3 agreement and hence he should not be called upon to pay any further amount as maintenance or other expenses. Further a divorced wife is not entitled for maintenance.
11. Now coming to the question as to whether he should be called upon to pay the past and future maintenance, a reference to the entire factual scenario of the case has to be considered. As already noticed the parties came under loggerheads for matrimonial reasons and on account of a business rivalry or an Mat.Appeal Nos.311/2015 & conn.cases 14 issue in regard to conduct of an industrial unit. Ext.B1 is a general power of attorney dated 2/6/2004, executed by the petitioner in favour of the respondent authorising him to run the unit on her behalf. The Family Court found that the unit belonged to the petitioner. However on account of certain disputes between the couple an injunction suit came to be filed as O.P.No1683 of 2009 which ultimately was settled by Ext. A3 agreement dated 30/11/2009. Both parties rely upon the agreement. Hence it is better to extract the same which reads as under:
"JOINT COMPROMISE SETTLEMENT AGREEMENT OF COMPROMISE SETTLEMENT entered into between (1) Smt.Anitha Kesavadas @Anitha K.Das, aged 42 years, D/o.Kesavadas, residing at Srivani, Perandoor Road, Kaloor, Kaloor, Kochi-682017 (hereinafter referred to as the 1st party) and (2) Sri.K.Babukuttan Pillai, aged 50 years, S/o Late Kunjikrishna Pillai, Ayinikkattu Veedu, Kidangayam North Mynagappally, Karunagappally, Kollam Dt. (hereinafter referred to as the 2nd party).
1. THAT the parties hereto are husband and wife. On account of matrimonial discord they are living separately. The above OP was filed by the 1st party praying for an injunction Mat.Appeal Nos.311/2015 & conn.cases 15 restraining the 2nd party from trespassing into the Petition Schedule Properties and for consequential relieves. The dispute in between the parties have been amicably settled and a Compromise Settlement has been arrived at in the following lines:
2. THAT the 1st party is the sole proprietor of M/s SNOW WHITE SOAPS & DETERGENTS, SNOW VALLEY, KUMARAPURAM, ERNAKULAM, PIN -653565, (a Regd. Khadi Unit), which is having Cash Credit facility (CC-SME EASYLOAN Account No.57001074060) from the State Bank of Travancore, SME Branch, Kalamassery. The above Industrial Unit is hereby allowed to be run by the 2nd party for one year w.e.f 1.12.09 on the following terms and conditions:
i. The 1st party permits the 2nd party to run the business hereafter on LEASE on consideration of Rs.12000 (Rs.Twelve Thousand Only) per month as Lease Management Fee, which shall be paid on the 1st of every month, commencing from 01.12.2009. The above amount shall be non-refundable and non-adjustable with any other claims that may arise in between Mat.Appeal Nos.311/2015 & conn.cases 16 the parties hereto.
ii. The 1st Party will co-operate with the 2nd party for running the unit during the period of Lease, in the following manner:-
a. The 1st party agrees to continue the Unit in her name during the period of Lease.
b. The 1st Party agrees to operate the Cash Credit facility (CC-SME EASYLOAN Account No.57001074060) with the State Bank of Travancore, SME Branch, Kalamassery as per the written instructions/requests of the 2nd Party.
c. The 1st Party is at liberty to maintain the limit of the above Cash Credit to a maximum of Rs.10 lacs (Rs.Ten Lakhs) in all.
d. The 2nd Party shall not operate any other account for the Industrial Unit in the State Bank of Travancore, SME Branch, Kalamassery or any other Bank/Branch during the pendency of the Lease.
3. THAT the 2nd Party agrees to-
i. Settle the Cash Credit facility (CC-SME EASYLOAN Account No.57001074060) with the State Bank of Mat.Appeal Nos.311/2015 & conn.cases 17 Travancore, SME Branch, Kalamassery and get back the title deeds of the property of the 1st Party which were entrusted with the bank as security to the CC Account, within one week from the expiry of the Lease.
ii. Get necessary documents from the Govt. Depts like Sales Tax, Pollution Control Board, KSEB, Panchayath etc. in proof of change of business from the 1st Party/termination of the Business.
4. THAT on production of the records referred to in Clause 3(ii) above, the 1st Party will transfer an extent of 25 cents of land of the Schedule Property to the 2nd Party. The above 25 cents shall be inclusive of the property in respect of which the 1st Party had executed a lease deed to the brother of the 2nd Party viz. Sri.K.Venugopal and an extent of 4 cents allegedly in the trespassed and possessed by one Sri.Varghese.
5. THAT the entire liability including guarantee liability as on today and till the closure of the Unit/change of Proprietorship as per Clause 4(ii) above, incurred by the 1st Party in the capacity of the proprietor of the Industrial Unit will continue as the liability of the Unit itself Mat.Appeal Nos.311/2015 & conn.cases 18 and the financial implications arising thereof against the 1st Party in person shall be indemnified by the 2nd Party.
6. THAT the Order of Injunction passed by the Hon'ble Family Court will be modified as limiting its scope only in respect of the residential building of the 1st Party. The 2nd Party agrees that he will not trespass into the residential building of the 1st Party or cause any disturbance to her in living with her parents."
12. By virtue of the agreement petitioner permitted the respondent to conduct the unit for a period of one year on certain conditions. The petitioner however took a stand that the respondent had flouted the terms of agreement and started to occupy and run the unit in violation of the conditions in the agreement and contended that he was in illegal occupation and enjoyment of the unit. Family Court also found that the petitioner applied before various authorities for cancellation of the license/permission in her name, which is evident from Ext. A8 to A11. It is therefore clear that the petitioner herself was responsible for closure of the unit. The Family Court proceeded on the basis that on expiry agreement period respondent has no Mat.Appeal Nos.311/2015 & conn.cases 19 right to remain in possession of the building. This finding according to us is not in terms with the agreement. It is relevant to note that the Family Court did not even grant an injunction in favour of the petitioner as sought in O.P.600 of 2010 on a finding that the respondent was in possession of the unit, on the date of suit. His possession therefore was lawful and in accordance with the agreement between the parties. If at all there was violation of the terms of the agreement, lawful steps could have been taken to restore possession of the unit, whereas the petitioner had filed a suit for injunction and an interim injunction was granted by the Family Court restraining the respondent from entering the property. In other words after the interim injunction was granted the respondent had substantially lost his income from the business. It has to be assumed that he has no income and his source of income is not proved by the petitioner. True that he is an able-bodied person, but at this age whether he will be able to do any kind of work to pay the maintenance after taking care of himself is also a question to be considered in the case. The materials placed on record shows that he was employed in an establishment, he resigned, started a unit on his own, went Mat.Appeal Nos.311/2015 & conn.cases 20 abroad for a job, returned back and even if there is a finding that the petitioner had started the unit, and the documents are in her favour, it is possible that the unit was started by or at the instance of the petitioner. Ext.B1 Power of Attorney evidences the said fact. This is especially so, since he was working at Tata Oil Mills Co. Ltd. which was engaged in manufacturing of soaps. Therefore the concept to start a soap manufacturing unit is apparently that of the respondent. Further the purport of Ext.A3 agreement was to transfer the unit in his name along with the properties. In fact there was a settlement of the family disputes as well as business disputes. Section 25 of the Hindu Marriage Act relates to permanent alimony and maintenance. Sec.25 can be invoked either at the time of passing any decree or at any time subsequent thereto on the application of either the wife or the husband, as the case may be. The obligation to pay depends upon the respondent's income and property, taking into consideration the income and other property of the applicant, conduct of the parties and other circumstances of the case. Mat.Appeal Nos.311/2015 & conn.cases 21
13. No doubt, it is settled law that even a divorcee wife is entitled to get maintenance from her ex-husband if she is able to establish that he is having capacity to pay maintenance and she is without any source of income and she is not married. The ex-husband, if such conditions are proved, is liable to pay maintenance to his ex-wife till she is remarried or she gets independent income to maintain herself. In this case, according to the petitioner, in the petition, from December, 2010 onwards no maintenance was paid by her ex-husband. Even according to the respondent, the petitioner is without any employment or independent source of income. It is true that she is the owner of 54 cents of land and though the industrial unit stands in the name of the petitioner, she is not getting any income from the same as the respondent is in possession of the same. There is no evidence regarding the income derivable from the remaining portion of the land excluding the area covered by the industrial unit namely 34 cents. It is brought out in the evidence of PW1 that she is depending on her parents for her livelihood. Under such circumstances, she is entitled to get maintenance from her ex-husband.
Mat.Appeal Nos.311/2015 & conn.cases 22
14. The respondent is also without any employment now. Though he is entrusted with the running of the unit on account of certain obstructions made by the petitioner herself, he is not in a position to run the unit. Though he had an independent unit at Panangad, even according to him, it was closed by him and it is thereafter that he had inducted in possession of this disputed unit on the basis of Ext.A3 compromise agreement. The petitioner also had no case that he is getting income from that unit and if so what is the nature of income derived from that as well. But the respondent had no case that he is suffering from serious disease incapacitating him to do any work and earn income. He had no case that he was not deriving any income for supporting his livelihood independently as well. He had no case that he is depending on others for his livelihood. So under such circumstances, the Court below was perfectly justified in coming to the conclusion that he is liable to pay maintenance to the petitioner.
15. Regarding the quantum of maintenance and the period during which he is liable to pay maintenance is concerned, the petitioner is claiming maintenance from December, 2010 Mat.Appeal Nos.311/2015 & conn.cases 23 onwards and the petition was filed in the year 2011. So she is entitled to get past maintenance from December, 2010 till the date of filing of the petition and thereafter for future maintenance from the date of petition at the rate fixed by the Court below. But the Court below had awarded past maintenance for three years prior to the filing of the suit which is not asked for by the petitioner herself. So awarding past maintenance for three years prior to the filing of the petition by the Court below is unsustainable in law and the same is liable to be set aside. At the most, she will be entitled to get maintenance from December, 2010 till the filing of the suit as past maintenance and thereafter she may be entitled to get future maintenance at the rate fixed by the Court. To that extent the order passed by the Court below is liable to be set aside.
16. As regards the quantum for maintenance is concerned, the Court below had fixed Rs.4,000/- per month as maintenance payable by the respondent to the petitioner. But admittedly the respondent is also without any income. So under such circumstances, the capacity to raise the amount while fixing the quantum of maintenance also is one of the criteria Mat.Appeal Nos.311/2015 & conn.cases 24 that has to be considered by the Court below. But this aspect has not been considered while fixing the maintenance. Under such circumstances, we are of the view that the quantum of maintenance fixed can be reduced to Rs.2,500/- per month especially when there is no evidence adduced on the side of the petitioner regarding the status of their living at the time of living together and thereafter for the purpose of fixing the quantum of maintenance. Hence the order passed by the Court below regarding the quantum of maintenance is refixed as Rs.2,500/- per month which the respondent is liable to pay from December, 2010 till the filing of the petition as past maintenance, and thereafter at the same rate from the date of petition as future maintenance and he is liable to pay interest at the rate of 6% for this amount till payment. With the above modification of the maintenance awarded, the petition is allowed in part on this aspect.
17. Another issue is with reference to a direction to pay a sum of Rs. 1,60,000/- to the petitioner as damages for use and occupation of the building/unit and Rs.20,000/- per month as compensation till the building is surrendered to the petitioner. The Mat.Appeal Nos.311/2015 & conn.cases 25 petitioner claimed an amount of Rs.1,60,000/- as compensation towards illegal occupation of the premises of the industrial unit. Family Court found that respondent is in the illegal possession of the industrial unit, and direction had been given to pay a sum of Rs.1,60,000/- as damages towards the use and occupation of the industrial unit illegally occupied by the respondents and a further amount of Rs.20,000/- per month till the vacant possession is surrendered by the respondent. The Family Court observed that the respondent managed to snatch the industrial unit operated by the petitioner and he had intervened in the internal affairs of the petitioner. This finding, apparently, is not correct. There is no basis for the aforesaid finding other than the testimony of PWs 1 and 2. Even otherwise, the issues between the appellant and the respondent were settled by an agreement, Ext.A3, by which the appellant was permitted to operate the unit for a period of one year and thereafter, to transfer 25 cents to the respondent, inclusive of land given on lease to respondent's brother. The finding of the Court below that the possession of the respondent is illegal, is absolutely baseless. He had taken possession of the unit based on an agreement and unless he is evicted by due Mat.Appeal Nos.311/2015 & conn.cases 26 process of law, his continuance cannot be treated as illegal or otherwise. The said finding of the Court below is absolutely baseless.
18. There is yet another reason for denying the said claim. It is an admitted fact that as per Ext.A3 settlement, the industrial unit was entrusted to the respondent for the purpose of running the same on certain terms and conditions. It is also agreed in the agreement that the period of lease is one year and the lease management rent is Rs.12,000/- per month. It is also in a way admitted that while the relationship was cordial after Ext.A3 agreement, he was paying rent regularly. But before the expiry of the period, it appears that, their relationship strained which resulted in dissolution of marriage and also filing of complaints before the authorities in respect of conduct of the unit. The question as to whether it is a lease arrangement or license arrangement is a matter to be considered in an appropriate proceedings, if any, initiated by the petitioner for recovery of the property. Even if it is a license, if the licensee overstayed, then the remedy of the licensor is to file a suit for mandatory injunction instead of recovery of possession Mat.Appeal Nos.311/2015 & conn.cases 27 directing the respondent therein to vacate the premises. But the petitioner has filed only a suit for simple injunction restraining him from trespassing into the property and filed OS.No.600/2010 for that purpose. The Court below by the common judgment itself found that the petitioner is not entitled to injunction as prayed for and the remedy of the petitioner is to sue for recovery of possession and dismissed the case. Only in a suit for recovery of possession or mandatory injunction as the case may be if any filed by the petitioner, the question as to whether there is proper termination of lease or license and whether occupation of the person in possession who entered into the property in lawful manner on the basis of a lawful agreement was properly terminated and whether his possession is unlawful and whether he is liable to pay damages etc can be considered. If the petitioner files a suit for recovery of arrears of rent even if she did not want to sue for eviction, then such a claim can be independently maintained. But without seeking a mandatory injunction directing the licensee to vacate the premises and deliver possession of the property or recovery of possession of the property from the lessee asking Mat.Appeal Nos.311/2015 & conn.cases 28 him to surrender possession of the building and property, the question of demanding damages independently will not arise and that is not sustainable. This aspect has not been properly considered by the Court below before coming to the conclusion that the possession of the respondent is unlawful and he is liable to pay damages and fixed the damages at the rate of Rs.20,000/- per month. Under such circumstances, the direction to pay Rs.1,60,000/- and Rs. 20,000/- per month as damages for illegal occupation of the premises is absolutely baseless.
19. In the original petition, petitioner also claimed a sum of Rs.4,20,000/- as educational and other expenses and the Family Court, after having considered the matter, directed payment of Rs.3,00,000/- as expenses incurred by the petitioner for the educational and other expenses of the children. Rs.15,000/- was also directed to be paid as litigation expenses. In regard to the claim for educational expenses also, the claim is made for the expenses incurred during 2009-2011. The petitioner had an allegation that the respondent had not shown any interest in meeting the educational expenses of the children. She placed reliance upon Ext.A24 series bank chalans to show the Mat.Appeal Nos.311/2015 & conn.cases 29 expenditure incurred by her for meeting the educational expenses. The Family Court allowed a sum of Rs.3,00,000/- towards the expenses incurred by the petitioner for the educational and other expenses of the children. There is no material to indicate that such an amount has been expended. Further, an agreement (Ext.A3) has been executed between the spouses by which all financial dealings had been settled. There was no reason to claim any further amount from the respondent. Apparently, Ext.A3 agreement has relevance to the subject mater in issue. The terms of the agreement itself would show that the parties have come to a consensus regarding financial/property dealings and there was an understanding between the parties that there shall not be any further issues. But, as rightly pointed out by the respondent, during the pendency of the period of agreement itself, O.P.No.600/2010 came to be filed by the appellant. It is further contended by the respondent that he was taking care of all the needs of the children, till August 2010. According to him, the financial burden of the appellant was settled as evident from Exts.B13 and B14 and further evidenced from the deposition of PW5, Bank Manager. According to the Mat.Appeal Nos.311/2015 & conn.cases 30 respondent, since he had complied with all requirements, there is no reason to mulct him with any other liability. The above contention appears to be justified. All the issues between the spouses were settled by an agreement and the parties were under obligation to comply with the terms of the agreement. Though the compromise was entered into in an injunction suit, virtually the issue projected was with regard to the business rivalry and consequent matrimonial issues, between the parties and the consequences arising out of the same. In the said circumstances, there is no justification for the Family Court to have directed the respondent to pay educational expenses. In so far as the petitioner is not entitled for any judgment in her favour she cannot claim any litigation expenses as well.
20. Mat.Appeal No.404/2015, is filed against the finding in issue No.4 in I.A.No.1946/2014 in I.A.No.1705/2010 in O.P.No.600/2010. By virtue of the order in I.A.No.1705/2010, an interim injunction was granted by the Court restraining the respondent from trespassing into the industrial unit/plaint schedule property. The Family Court found that the respondent had violated the interim order and therefore action was taken Mat.Appeal Nos.311/2015 & conn.cases 31 under Order 39 Rule 2A. There is no dispute regarding the existence of the interim order. It was alleged in the I.A.No. 1946/2014 that the respondents were proceeding to set up an industrial unit in violation of the injunction order and obtained electrical connection, telephone connection etc. The appellant submits that the application was filed after the evidence in the case was over and no evidence was adduced to prove the said allegation. Whereas, the Court below relied upon the evidence adduced in the case to arrive at a conclusion that there is violation of the injunction order. The contention urged by the respondent is that proceedings under Order 39 Rule 2A is separate, distinct and independent of the main proceedings. Therefore, independent evidence is required to arrive at such a conclusion. He relied upon the judgment of this Court in KSEB and Another v. Paul and another (2013 (2) KLT SN 10), wherein this Court held that, the person proceeded against should be given an opportunity to lead evidence in support of his case. It is argued that the Family Court had relied upon the evidence adduced in the main cases, in order to arrive at such a finding. It is stated that, the respondent was in possession of the property at Mat.Appeal Nos.311/2015 & conn.cases 32 the time when the interim injunction was passed. Therefore, the question of trespassing does not arise. In regard to the restriction to make any construction in the property, the respondent had only obtained other power source when the electrical connection was disconnected at the instance of the petitioner. It is submitted that the application for prosecution was filed belatedly after several years of the alleged cause of action. The Family Court found that there is wilful violation of the directions issued by the Court. But it is significant to note that the respondent was permitted to operate the unit, as per the terms of Ext.A3 agreement. There is no material to indicate that he has violated the terms of Ext.A3 in any manner. It is contended that he had not settled the liabilities as agreed upon. But it is relevant to note that, there is no time limit specified to comply with clause 3(ii) of the agreement. Paragraphs 6 and 7 of O.P.600/2010 are relevant which reads as under:
"6. During the period in which the petitioner and the 1st respondent was residing together, she was forced to make an offer in writing to the 2nd respondent on 08.02.2007 agreeing to lease out him an Mat.Appeal Nos.311/2015 & conn.cases 33 extent of 20 cents on the north eastern side of her landed property in Survey No.122/6-1 of Kunnathunadu Village. Since the above lease was intended to be made for a period of 10 years, there was a specific understanding in between the petitioner and the 2nd respondent the Lease Deed would be duly registered. However the 2nd respondent did not make any efforts to get the above Lease Deed properly executed, in view of the matrimonial issues in between the petitioner and the 1st respondent.
7. However, making use of the above offer the respondents made collusive attempts to set up a business unit -
M/S.SNOW VALLEY COSMETICS, Kumarapuram, Pallikara - in the above property. Though the business is in the name of the 2nd respondent, it is being operated by the 1st respondent himself, on the basis of a Power of Attorney obtained from the 2nd respondent. The setting up of the said business by the 1st respondent in the name of the 2nd respondent is contrary to the terms of the Agreement dt.30.11.2009 entered into between him Mat.Appeal Nos.311/2015 & conn.cases 34 and the petitioner. In addition to the above, in the absence of a proper lease deed, the respondents have no authority to trespass into the property of the petitioner and to set up a business therein. Hence the petitioner caused to issue the 2nd respondent a notice proposing legal action against him for restraining him from trespassing into her property and from committing any act of waste therein, including the setting up of any business which identical to her business. Though the above notice was duly served on the 2nd respondent, he has not even cared to make a reply to the same and in the meanwhile the respondents are taking hasty steps to set up an industrial unit in the petitioner's property. In the meanwhile the petitioner has no option other than to move this Hon'ble Court praying for an injunction restraining the respondents from trespassing into the petition schedule property and from making any construction, whether permanent or temporary, therein and from committing any act of waste therein, including the setting up of any business which identical to Mat.Appeal Nos.311/2015 & conn.cases 35 her business."
Other than contending that there was no registered lease deed, pursuant to agreement dated 08/02/2007 (Ext.B2) there is no allegation regarding non compliance of any of the terms of Ext. A3 agreement. Under such circumstances, filing of O.P.No.600/2010 was with a clear intention to harass the respondents. That apart, as rightly pointed out by the appellant, I.A.No.1946/2014 was filed after four years from the date of passing the interim order. By the time, there had been substantial change in circumstances.
21. Further, the ex parte order of injunction was passed as per order in IA.No.1705/2010 restraining the respondent from trespassing into the plaint schedule property and making any construction therein and encumbering the property, and committing any act of waste including setting up of business. The order of injunction was granted on 10.5.2010 and it was posted for return of notice to 28.5.2010. The injunction order was served on the parties on 28.5.2010. It is seen from the impugned order that on 28.10.2010 the injunction order was extended till the disposal of the application. O.P.No.600/2010 Mat.Appeal Nos.311/2015 & conn.cases 36 was dismissed by the Court below on the ground that there was no schedule of property attached as required under Order VII and even in the injunction application, it was only vaguely mentioned as about 20 cents and on such description, it is not possible to pass a decree for injunction.
22. There is no dispute regarding the proposition that even if an interim order of injunction is served on the respondent, and is violated, despite the fact that the order is vacated, he can be proceeded against for violating the said interim order. In Dinesh v. Pioneer shipping Complex (P) Ltd. (2002 (1) KLT 35) and T.M. Bagasarwalla v. H.R. Industries (1997 KHC 506), it has been held that even if the Court has no jurisdiction to entertain the suit, but if an interim order of injunction is granted and it is violated during the continuance of the order, then he can be proceeded with under Order 39 Rule 2A. The same view has been followed in the decisions reported in M/s. Info Edge (India) Pvt. Ltd v. Sumanta Bhattacharya (AIR 2012 Culcutta 1) and Paras Ram v. Brijendra Singh (AIR 2009 Rajasthan 147). Further in the decision reported in P.T. Iduculla v. Bharat Petroleum Mat.Appeal Nos.311/2015 & conn.cases 37 Corporation Ltd (1986 KLT 698) it has been held that:
"To attract penal provision of Order 39 Rule 2A, it is imperative that service of notice is clearly an unequivocally proved. The foundation of charge necessarily depends on the proof of such service, that is, clear and unequivocal proof that the party has had knowledge of the order passed by the Court."
23. In the decision reported in Cheruvannoor Nallalam Grama Panchayat v. Ravi (2006 (1) KLT 546) it has been held that:
"There is no need for proving formal service of the order of injunction and it is enough if the party had knowledge about the order of injunction."
It is also mentioned in the same decision that:
"An interim order is liable to be respected by the parties to the same, so long as such order is in force, even if the order is subsequently vacated."
24. Further in the decision reported in Thampi v. Malathi (2005 (4) KLT 575) it has been held that:
"Order XXXIX Rule 2A deals with consequences of violation of the injunctions or any other order passed by the court under Rules 1 or 2 Mat.Appeal Nos.311/2015 & conn.cases 38 of O.XXXIX. The Court which has the power under O.XXXIX Rule 2A is either the court granting the injunction or any other court to which the suit or proceeding for injunction is transferred. The consequence initially provided is attachment of the property of the person found to be guilty of disobedience or breach. The Court has been given the discretion to order detention of the person in civil prison also. By now it is trite that the Court has power under O. XXXIX Rule 2A to direct detention of the contumacious party in civil prison even though ordering his property to be attached."
25. In the decision reported in Krishnan v. Joseph Desouza (1985 KLT 1010) it has been held that:
"The later disposal of the appeal is not a ground whatever for not dealing with and discussing the serious complaint of violation of injunction. If there is a disobedience of the order of injunction, the aggrieved party can seek reliefs by invoking the inherent power of the court under S.151 of the Civil Procedure Code. The court is concerned only with the question whether there was a disobedience of the order of injunction and not with the ultimate decision in the matter."
In the same decision it has been held that:
Mat.Appeal Nos.311/2015 & conn.cases 39
"Any action by which the process of the court is attempted to be thwarted has to be viewed seriously. If an order of injunction is violated, that violation has to be dealt with sternly, for, otherwise it will undermine the very basis of the Rule of Law. There is difference whether the violation pertains to an order, or to an undertaking made before a court of law, which too will have as much effect as an interim injunction in such circumstances."
26. In this case, admittedly there was no schedule of property provided in the suit. Though it is alleged in the finding regrading the disposal of the original petition and also in the violation proceedings, along with the injunction petition schedule of property was provided. But a perusal of the injunction petition showed that there was no schedule of property attached. If a separate schedule of property is attached, it is not known as to whether such a schedule of property has been sent along with the injunction application and that has been served on the party. Further while disposing the suit the Court has come to the conclusion that without schedule of property with proper description, no injunction can Mat.Appeal Nos.311/2015 & conn.cases 40 be granted. It is also mentioned in the order itself that the extent of property shown is also about 20 cents. No commission was taken out in this case to find out as to whether the property claimed by the petitioner in the injunction suit can be differentiated with other properties of the petitioner as well. Further the respondent had a case that since there is no schedule of property attached to the suit, the suit for injunction is not maintainable as the injunction decree if any granted is not executable. If that be the case, if there is no evidence to show that the schedule of property said to have been attached along with the injunction application which was not seen attached along with the injunction application as per the records though it would have been given separately it cannot be said that there is no ambiguity in the injunction order. Further the petitioner had no case that except the alleged cause of trespass, he had committed any other act of violation. So under such circumstances, the Court below was not justified in coming to the conclusion that the petitioner had proved violation of injunction beyond reasonable doubt and as such the respondent is liable to be punished for violation of injunction Mat.Appeal Nos.311/2015 & conn.cases 41 order which is unsustainable in law. Under such circumstances, we are of the view that the direction to prosecute the appellants is without any basis and the impugned order is liable to be set aside, thereby we are allowing the appeal.
27. In regard to Mat.Appeal No.562/2015, the appellant is the petitioner. He has filed the original petition for recovery of Rs.12 lakhs allegedly spent by him. The Family Court found that there is no evidence to prove the expenditure incurred by him. The appellant submits that the documents Exts.B3 to B12 would prove the said fact. Perusal of Exts.B3 to B12 does not indicate that such amounts had been spent by the appellant. Under such circumstances, Exts.B3 to B12 do not prove the said fact. It is true that the evidence has to be considered based on preponderance of probabilities. In a case where claim for recovery of money is made, specific instances are to be proved to arrive at such a conclusion. In the absence of any such material, the Court below was justified in dismissing the claim. We don't find any infirmity in the said order warranting interference.
28. In regard to Mat.Appeal No.575/2015, the claim is for recovery of Rs.9,71,065/-. The claim is made alleging that on Mat.Appeal Nos.311/2015 & conn.cases 42 08/02/2007, 20 cents of property was leased out to the 2nd appellant by the respondent. Ext.B2 is the lease deed. Lease was for the purpose of starting an industry. This fact was confirmed in Ext.A3 agreement as well, wherein it was agreed that 25 cents of land will be transferred in favour of the 1st appellant which includes 20 cents of land leased out to the 2nd appellant. Though, as per Ext.A3 agreement, appellant was permitted to run the unit, stating false and fabricated statements, O.P.No.600/2010 was filed on 10/05/2010 by which the unit had to be closed down which is in gross violation of Ext.A3 agreement. On account of such situation, the appellant suffered huge loss and portion of the same is being claimed, of which Rs.2 lakhs represents the value of raw materials purchased and the balance amount, in regard to the expenditure incurred for setting up of the unit. Petitioner placed reliance upon Exts.B22 and B38 bills. It is contended that the Court below ought to have allowed the said claim. On the other hand, learned counsel for the respondent opposed the above claim and while supporting the judgment of the Family Court it is contended that there is no material to prove the alleged loss. There is no doubt about the terms and conditions of Ext.A3 Mat.Appeal Nos.311/2015 & conn.cases 43 agreement, which is supposed to be an arrangement between the parties during the relevant time. However, materials placed on record indicate that there is non-compliance of the terms of the agreement and the parties have taken contrary contentions. According to the appellants, the respondent had committed breach of contract by ensuring that the unit is closed down by writing letters to all the licensing authorities. Whereas, according to the respondent, the appellant did not discharge the liabilities within a time frame and hence she was not entitled to the benefits of the agreement. But, it is relevant to note that when the respondent had permitted the appellants to run the industrial unit and there is an agreement to transfer the industrial unit and portion of the property in favour of the 1st appellant, on his complying with the other terms, it was not proper on the part of the respondent to have issued letters to various authorities to cancel the licences. The whole idea was to permit the appellants to operate the unit and to have ownership in respect of 25 cents of land. The said situation has now changed and the appellants are out of business. Therefore, the fact that the appellants have suffered a loss on account of the action on the part of the Mat.Appeal Nos.311/2015 & conn.cases 44 respondent, cannot be disputed, and, in such circumstances, a party to a contract who had suffered loss is entitled for damages for the breach of contract. What exactly was the breach committed by the respondent is evident from the fact that the respondent had filed a suit O.S.No.600/2010 and obtained an interim injunction against the appellants restraining them from virtually operating the unit. Further, the respondent had issued letters to all the competent authorities to cancel the licences/permission for running the unit, stood cancelled. These factual aspects would clearly permit the appellants to claim damages. Before proceeding further, it has to be considered whether this is an issue which has arisen out of a matrimonial dispute. All matters relating to husband and wife does not come within the realm of disputes that could be adjudicated by the Family Court. Explanation to section 7 of the Family Courts Act, virtually defines the matters which could be considered by the Family Court. Explanation to Section 7 reads as under:
"Explanation.- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, Mat.Appeal Nos.311/2015 & conn.cases 45 namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor." Mat.Appeal Nos.311/2015 & conn.cases 46 This is a case in which a commercial dispute between the appellants and the 1st respondent was being considered and a claim is made on the allegation that there is breach of contract.
When the parties themselves had arrived at a consensus regarding settlement of disputes, by executing Ext.A3 agreement, any breach thereof would constitute a cause of action for claiming damages in an appropriate civil suit. At any rate the 2nd appellant's claim against the respondent, cannot be adjudicated by the Family Court. As far as the 1st appellant is concerned, his claim is also for damages alleging breach of contract, in regard to certain commercial terms, which cannot be adjudicated by the Family Court.
29. The Family Court, of course, has considered the matter on merits and rejected the claim. It is now submitted that the claim has been limited Rs.2,00,000/- by the 1st appellant and Rs.3,00,497/- by the 2nd appellant. In the original petition, petitioners have claimed damages stating that they were not permitted to run the industrial units on account of the respondent filing O.P.600 of 2010 and obtaining an ex parte interim injunction. It is alleged that on filing of the original petition they Mat.Appeal Nos.311/2015 & conn.cases 47 had to close down the functioning of two industrial units. The respondent had obtained an interim injunction from the Family Court. The appellants have a case that they were unable to operate the units because of the interim injunction. As rightly pointed out by the Family Court if they wanted the interim order to be vacated, necessarily they could have approached the Family Court immediately, or challenged the interim order in appropriate proceedings. Under such circumstances the Family Court was justified in rejecting the claim. We don't find any infirmity in the said judgment warranting interference in the appeal.
In the result,
i) Mat. Appeal No.403/2015 is allowed in part, setting aside the judgment and decree of the Family Court in O.P.No.1521/2011, and granting a decree in favour of the petitioner in O.P.No.1521/2011, for past and future maintenance at the rate of Rs.2500/- per month. Past maintenance shall be payable only from December, 2010 till the date of filing the Mat.Appeal Nos.311/2015 & conn.cases 48 petition. Arrears of maintenance can be recovered with interest at the rate of 6% per annum.
ii) Mat. Appeal No.404/2015 is allowed setting aside the order of the Family Court in I.A.No.1946/2014 in I.A.No.1705/2010 in O.P.No.600/2010.
iii) Mat. Appeal Nos. 311/2015, 562/2015 and 575/2015 are dismissed.
iv) Parties shall bear their own costs.
(A.M.SHAFFIQUE, JUDGE) (K.RAMAKRISHNAN, JUDGE) jsr