Karnataka High Court
Sri M Munikrishna @ Babu vs Smt S Shanthakumari on 14 July, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION No.19031 of 2012(GM-RES)
BETWEEN
SRI M MUNIKRISHNA @ BABU
S/O SRI MUNIYUAPPA,
AGED ABOUT 42 YEARS,
R/AT NO.1016, 1ST STAGE,
2ND BLOCK, HBR LAY-OUT,
KG HALLI, A.C.POST,
BANGALORE-560084
...PETITIONER
(BY SRI N RAGHAVENDRA, ADVOCATE)
AND:
SMT S SHANTHAKUMARI
W/O M MUNIKRISHNA,
AGED ABOUT 38 YEARS,
R/AT NO.20, 3RD CROSS,
MARIYAMA TEMPLE ROAD,
OLD POLICE STATION ROAD,
K.G.HALLI, A.C.POST,
BANGALORE-560084
...RESPONDENT
(BY SRI T M CHOWDA REDDY, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE MEDIATION REPORT DATED 17.5.11 PASSED BEFORE
DEMIATION CENTRE U/S 89 OF KCP(M) RULES 05 AND
CONSEQUENTLY ACCEPTANCE OF THE REPORT BY THE
METROPOLITAN MAGISTRATE TRAFFIC COURT-I BANGALORE
2
(MMTC-I) IN C MISC NO.32/10 DATED 27.5.11 VIDE ANNX-B &
A AND ALSO CONSEQUENT ORDER IN C.MISC 244/11 DATED
1.3.2012 VIDE ANNX-F AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 08.07.2022, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
This Writ Petition is filed seeking the following reliefs:
"Issue an order or direction in the nature of Certiorari and quash the mediation report dated 17.5.2011 passed before Mediation centre under section 89 of Karnataka Civil Procedure (Mediation) rules, 2005, and consequently acceptance of the report by the Metropolitan Magistrate Traffic court-1 Bangalore, (MMTC-1) in C.Misc. No.32/2010 dated:27.5.2011, Annexure -'B' & 'A' and also subsequent order in C.Misc. No.244/2011, dated 1.3.2012 as per Annexure-'F'.
2. Brief facts of the case are as follows:
It is the case of the Petitioner that the marriage of the Petitioner and the Respondent was solemnized on 10.02.1995 at Bengaluru as per Hindu customs, rites and usage. The parties initially lived in a rented house at 3 Thanisandra, Bengaluru and out of their wedlock they had 2 children namely, a son Master M.Harshith Kumar (born on 01.11.1996) and a daughter Kum.Sushmitha (born on 11.02.1999). In the year 2005, they shifted from the rented house to the house of the parents of the Petitioner situated at K.G.Halli, Bengaluru. Subsequently, the Respondent started business of Fancy Store and Saree business in their own shop. As her business improved, she neglected to look after the Petitioner and his aged parents.
As a result of which, the disputes arose between the parties culminating in the Petitioner and his parents being thrown out of their own house in January 2009. Now the Petitioner and his parents are residing in a rented house.
3. The Respondent filed a Petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'DV Act' for short) in C.Misc.No.32/2010 before the Trial Court seeking for various reliefs. The Trial Court passed an order dated 12.05.2010 granting interim maintenance of Rs.4,000/- 4 per month payable by the Petitioner to the Respondent and her children. Subsequently, the matter being referred for mediation, a Memorandum of Settlement dated 17.5.2011, was signed by both the parties and their counsel.
4. The Petitioner in the present Writ Petition has assailed various terms of the Memorandum of Settlement, inter alia, contending that he has not agreed for the said terms and made allegation against the Mediator that he has not explained the contents of the Memorandum, as also made allegation against his counsel alleging that he has colluded with the Respondent and misguided the Petitioner thereby, played fraud on him in obtaining his signature on the Memorandum of Settlement.
5. It is the case of the Petitioner that the Memorandum of Settlement was sent to the Trial Court and his Counsel told him to appear before the Trial Court on 30.5.2011, but the case was called in the Trial Court on 27.5.2011 itself and the Memorandum of Settlement was 5 accepted on the same day in the absence of the Petitioner, without his consent. Hence, the Trial Court committed an error in accepting the Memorandum of Settlement without following the prescribed procedure in the absence of the Petitioner. The Petitioner had appeared in C.Misc.No.244/2011, the other Petition filed by the Respondent and in the said proceedings, the Petitioner had engaged the same Counsel and when he was informed by the Trial Court regarding various aspects that the Petitioner was required to fulfill and comply with, in terms of the settlement arrived at before the Mediation Centre, the Petitioner suspected the Memorandum of Settlement and the Counsel who represented him. Thereafter, the Petitioner along with the assistance of the learned Counsel appearing for him in the present Writ Petition, verified the case file and Memorandum of Settlement and came to know the misrepresentation and fraud played on him by the Counsel in not disclosing the details of the Memorandum of Settlement in collusion with the Respondent. Hence, the Petitioner contends that the 6 Memorandum of Settlement dated 17.5.2011 and the acceptance of the same by the Trial Court vide order dated 27.5.2011, are liable to be set aside.
6. In support of the contentions put forth, the learned Counsel for the Petitioner relies upon Rule 25 of the Karnataka Civil Procedure (Mediation) Rules, 2005, ('Mediation Rules' for short) as to the procedure to be followed by the Trial Court while recording the Memorandum of Settlement.
7. The Respondent has entered appearance in the Writ Petition and filed Statement of Objections on 03.10.2018. It is the contention of the Respondent that the parties having married on 10.02.1995, having two children out of their wedlock as stated in the Writ Petition, were living happily together in the matrimonial home, the Petitioner had entered into a second marriage with another lady by name Smt P.Sumithra. When the Respondent started to question him about the illegal marriage with said Smt Sumithra, the Petitioner and his parents started ill- 7 treating her and her children. Since the Petitioner refused to look after the Respondent and her children and to provide food, shelter and educational expenses, having no other option, she filed a Petition under the provisions of the DV Act in C.Misc.No.32/2010.
8. In C.Misc.No.32/2010, the Respondent filed an Application under Section 23 of the DV Act seeking interim maintenance of Rs.14,000/- per month from the Petitioner. In response to the same, since the Petitioner in the objections stated that he was ready to pay an interim maintenance of Rs.3,000/- per month to the Respondent and allow the Respondent to live in the house belonging to the joint family till her lifetime, based on the said voluntary statement of the Petitioner, the Trial Court vide order dated 12.05.2010 ordered the Petitioner to pay an interim maintenance of Rs.4,000/- pm., to the Respondent and her children.
9. It is the further case of the Respondent that, since the Petitioner failed in his obligation to pay 8 maintenance to the Respondent in terms of the order dated 12.05.2010, the Respondent initiated recovery/execution proceedings in C.Misc.No.244/2011. In the said recovery/execution proceedings, the Petitioner requested the Trial Court to refer the matter to Mediation Centre as there were chances of settlement. On the request of the Petitioner, the matter was referred to Bangalore Mediation Centre. In the Mediation Centre, it is the Petitioner, on his own will and wish came forward to enumerate the terms of the settlement, which was prepared and read over and after understanding the terms of the settlement, the Petitioner had signed the Memorandum of Settlement dated 17.05.2011 before the Mediator as well as before the Counsels representing the respective parties. Having signed the said Memorandum of Settlement and having kept quiet for over a year, the present Writ Petition has been filed making unfounded allegations. That the Petitioner has not paid any amount of maintenance either for the Respondent or for the children and he is in arrears of huge amounts. That, as 9 per the settlement arrived at before the Mediator, the Petitioner was required to pay a sum of Rs.2,00,000/- to each of the children and the Petitioner had issued cheques towards the same. Since the cheques issued were dishonoured, when the proceedings under Section 138 of the NI Act was initiated against the Petitioner and Warrants were issued, the Petitioner was constrained to pay the amount to the children. In the absence of the Petitioner paying the maintenance amount in terms of the order dated 12.05.2010 passed in C.Misc.32/2010, it is very difficult for the Respondent to lead her life and also to look after her children.
10. It is the further case of the Respondent that the Petitioner had falsely stated that he was an ordinary employee in Karuna Seva Samithi ('Samithi' for short). It is her contention that the said Samithi was initially started in the year 2003; the Petitioner was the President of the said Samithi till 2009; Smt.Sumithra with whom he had illegally married for the second time was the Treasurer of 10 the said Samithi and the other family members of the Petitioner were occupying other Office bearer posts in the said Samithi. That when the Respondent initiated proceedings under the provisions of the DV Act by alleging that the Petitioner was running the said Samithi in the capacity of President, the Petitioner resigned from the said post and appointed the sister of his second wife as the President. That the said Samithi is providing free mid day meals to 10,000 children, who were studying in the schools situated in Bengaluru North Taluk and the concerned Zilla Panchayaths are providing funds to the same. The Petitioner has entered into agreements with the Zilla Panchayath, Bengaluru District in the capacity as President of the said Samithi. The sister of Smt.Sumithra, who was subsequently appointed as President, is nothing but a puppet in the hands of the Petitioner and all administrative and financial decisions are taken at the hands of the Petitioner and to demonstrate the said contention, the Respondent has produced documents i.e., list of office bearers, Registration Certificate of the said 11 Samithi as also the Audit Report for the years 2006-2010 as well as copy of the agreements entered with the Zilla Panchayath. Hence, the Respondent contends that the Petitioner is a man of means and is earning lakhs of rupees.
11. It is the further case of the Respondent that although the Petitioner denies any relationship with said Smt.Sumitha, she has enrolled her name in the Voters' List mentioning the Petitioner as her husband and that out of their wedlock a baby boy namely Master Nithin M is born. In support of the said contention, the Respondent has produced a copy of the Voter Identity Card of the Petitioner as well as of said Smt.Sumithra as well as a copy of the application for admission issued by the SJR Public School pertaining to Master Nithin M, which discloses the Petitioner and Smt.Sumithra as the mother and father of the said child.
12. It is the contention of the Respondent that her children born out of the wedlock with the Petitioner, 12 namely Master Harshith Kumar and Kum.Sushmitha are being educated solely by her and she has produced copies of documents demonstrating the education pursued by both the said children as well as the expenses incurred by her towards the same. By putting forth the aforementioned contentions and relying on the documents, it is the case of the Respondent that the Petitioner has deliberately filed the present Writ Petition by making vague allegations against the Counsel, who appeared on his behalf as well as by making allegations against the Mediator also. Putting forth the said contentions, the Respondent seeks for dismissal of the Writ Petition.
13. During the pendency of the Writ Petition the Respondent has filed a Memo of calculation dated 24.06.2022 whereunder it is mentioned that the Petitioner is liable to pay a sum of Rs.10,64,000/- being the arrears of amounts due and payable by the Petitioner. The Petitioner has filed his objections to the said Memo of 13 calculation and the Respondent has also filed a rejoinder to the said objections.
14. The learned Counsel for the Petitioner has vehemently contended that the Petitioner is ready to comply with all the terms of the Mediation Report, which was executed by the parties except clauses (v) and (vii) since the said clauses pertain to properties, which do not solely belong to the Petitioner. The learned Counsel for the Petitioner has put forth other contentions as per the grounds urged by him in the Writ Petition, inter alia that he was not read and made known the contents of the Memorandum of Settlement executed at the Mediation Centre and the Trial Court ought not to have accepted the said Memorandum of Settlement and sought to impugn the order dated 27.05.2011 as being contrary to Rule 25 of the Mediation Rules. .
15. Per contra, the learned Counsel for the Respondent vehemently argued that the present Writ Petition is nothing but an abuse of process of this Court as 14 well as the proceedings before the Trial Court. The Petitioner has with a mala fide and oblique motive filed the present Writ Petition to drag on the proceedings that were initiated by the Respondent. The Petitioner is in arrears of huge amount of maintenance both towards Respondent and her children and seeks for dismissal of the Writ Petition.
16. Having regard to the submissions made by the learned Counsel for the parties, the question that falls for consideration is, "Whether the order dated 27.05.2011 passed in C.Misc.No.32/2010 is liable to be interfered with?"
17. In the course of hearing of the present Writ Petition, the Petitioner was specifically made aware of the order dated 29.01.2013 passed by this Court, which is extracted hereinbelow for ready reference:
"The respondent is absent. Learned counsel for the petitioner submits that the memorandum of settlement drawn before the Mediation Centre was accepted by the Court below in the absence of the petitioner or petitioner's counsel.15
However, according to me, the petitioner and petitioner's counsel though have signed the agreement before the Mediation Centre, they have failed to appear before the Court below. No explanation is forthcoming from their side. Moreover, the impugned order is questioned before this Court after the lapse of one year. Petitioner should explain his conduct. Otherwise, heavy costs of Rs.2,00,000/- (Rupees two lakhs only) will be imposed on him.
Call next week."
(emphasis supplied)
18. After the said order dated 29.01.2013 was brought to the notice of the learned Counsel for the Petitioner and as to whether any explanation was furnished to the same, the Petitioner has filed an affidavit dated 08.07.2022 as an explanation to the order dated 29.01.2013. Vide the said affidavit, the petitioner reiterates the contentions put forth by him in the present Writ Petition. However, no specific explanation is furnished in the said affidavit dated 08.07.2022 to explain his conduct as is sought for by this Court vide order dated 29.01.2013.
16
19. Various contentions have been put forth by the learned Counsel for the parties as also Memo of calculation has been filed by the Respondent for which objections have been filed by the Petitioner as also rejoinder to the said objections by the Respondent, regarding the arrears of maintenance and other amounts due and payable by the Petitioner to the Respondent. Further, various documents have also been produced by the Respondent with regard to the expenses incurred including medical, educational, etc., in respect of the Respondent as well as her two children. However, this Court does not deem it appropriate to venture into the aspect of determination of the amounts due and payable towards maintenance, since the said question is beyond the scope of the present Writ Petition. The parties are at liberty to agitate the said aspect before the relevant forum.
20. It is the specific case of the Petitioner that all the terms set out in the Memorandum of Settlement dated 17.05.2011 before the Mediation Centre has not been 17 agreed, inasmuch as the terms mentioned therein have not been read over and explained to him either by his Counsel or by the Mediator. Further, it is the specific case of the Petitioner that the Memorandum of Settlement agreed to between the parties was filed before the Court and the same was taken on record in the absence of the Petitioner or his Counsel and hence, the order passed by the Trial Court is liable to be set aside.
21. The said contention of the Petitioner has been vehemently opposed by the Respondent by stating that the Petitioner, after fully understanding all the terms agreed to between the parties and the Petitioner having clearly understood the said terms, has affixed his signature on the Memorandum of Settlement and the learned Counsel for both the parties have also affixed their respective signatures on the same and hence, the contention put forth by the Petitioner is liable to be rejected.
22. It is clear from a perusal of the Memorandum of Settlement in question that various terms and 18 conditions have been set out in detail with regard to the agreement arrived at between the parties. The same has been signed by both the parties as well as both the learned Counsel appearing for the respective parties. The Memorandum of Settlement dated 17.5.2011 also bears seal of the Mediation Centre, Bengaluru. Hence, due execution of the same is required to be presumed and that the parties as on the said date had agreed to the terms and conditions set out therein. It appears from the appreciation of the facts and material available on record, that the Petitioner with an oblique motive to rescind from the terms that were agreed by him on 17.5.2011, has subsequently not been present before the Trial Court. The Petitioner with the oblique and mala fide motive of rescinding from the terms agreed by him on 17.5.2011 has even gone to the extent of making allegations against his own Counsel and the Mediator who attempted to resolve the disputes between the parties. Such a conduct by the Petitioner is required to be deprecated. A party cannot be permitted to subvert the process of law by resorting to 19 such unscrupulous means. The Petitioner is attempting to resile from the Memorandum of Settlement in question by alleging that his Counsel has colluded with the Respondent and her Counsel. Such an allegation, ex facie, is liable to be rejected, inasmuch as the Petitioner has not taken any further action in furtherance of such an allegation. Be that as it may, the conduct of the Petitioner in filing the present Writ Petition on 14.06.2012 i.e., more than one year after the Memorandum of Settlement in question further belies the case of the Petitioner that he had not agreed to certain terms of the Memorandum of Settlement in question. No explanation is forthcoming from the Petitioner, either in the Writ Petition or in the affidavit dated 08.07.2022 explaining the said inordinate delay of one year. It does not lie in the mouth of the Petitioner to contend, nearly after one year before this Court, after voluntarily having participated in the Mediation proceedings before the Mediation Centre, that he had not agreed to certain terms of the Memorandum of Settlement. Even assuming that the Petitioner subsequently learnt or understood all the 20 terms of the Memorandum of Settlement in question, it is noticed that no attempt has been made by him to petition the same Court before which the Memorandum of Settlement in question was filed to seek for recalling of the order under which the said Memorandum of Settlement was accepted by putting forth his contentions before the said Court.
23. The Petitioner has alleged that fraud has been played on him and that he has affixed his signature on the Memorandum of Settlement without understanding its terms. It is settled law that when fraud is alleged, detailed pleadings regarding the same are required to be averred. However, in the Writ Petition, only vague allegations are made. Further, the Petitioner has not taken any steps or made any effort to demonstrate the alleged fraud. The subsequent conduct of the Petitioner after he allegedly learnt of fraud played, is also not that of a victim of fraud, inasmuch as he has not reacted and taken the necessary 21 steps that a prudent man would take when he learns of a fraud played on him.
24. It also appears that the Petitioner with an oblique motive of abusing the process of law and with a view to make the Respondent run from "pillar to post" and having constrained her to approach various Courts for redressal of her grievances, has filed the present Petition in furtherance of the said objective.
25. In the Statement of Objections filed by the Respondent to the present Writ Petition, grave allegations have been made against the Petitioner in respect of contracting a second marriage and also a child being born out of the said relationship. It appears, the Petitioner with a view to circumvent the said allegation has resorted to drive the Respondent to various forums with a view to frustrate her. It is pertinent to note that, to the Statement of Objections filed by the Respondent, no rejoinder has been filed by the Petitioner to counter the allegations made in the said Statement of Objections. It is further to be 22 noted that the Petitioner being involved in the activities of the Samithi and having regard to the nature of activities which it conducts in coordination with the Zilla Panchayath, it is difficult to envisage a situation that the Petitioner did not understand the terms of the Memorandum of Settlement in question, which is admittedly signed by him in the presence of his Counsel. Having regard to the same, the contentions put forth by the Petitioner in the present Writ Petition are liable to rejected.
26. It is settled law that the conduct of a person approaching this Court seeking exercise of its extraordinary jurisdiction contained under Articles 226 and 227 of the Constitution of India requires to be blemishless and this Court will not exercise its discretionary jurisdiction under Article 226 of the Constitution of India in favour of a person whose conduct is ex facie blameworthy. 23
27. The Hon'ble Supreme Court in the case of Kishore Samrite vs. State of Uttar Pradesh & Others1 (2013) 2 SCC 398 has held as under:
"The obligation to come to the Court with clean hands is an absolute obligation and has repeatedly been re-iterated by this Court"
28. The Apex Court in the case of S.Shanmugam Pillain and others v. K.Shanmugam Pillai and others2 has held as follows:
"13. Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope."
29. In Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh3, the Apex Court has reiterated that the writ remedy is an equitable one and a person approaching a superior court must come with a pair 1 (2013)2 SCC 398 2 (1973) 2 SCC 312 3 (2008) 1 SCC 560 24 of clean hands. Such person should not suppress any material fact but also should not take recourse to legal proceedings over and over again which amounts to abuse of the process of law.
30. In K.D. Sharma v. Steel Authority of India Limited4, the Apex Court has held thus:
"34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim."
31. In view of the foregoing, the Petitioner is not entitled for any relief in the present Petition and the Writ Petition is liable to be dismissed.
32. At this juncture, it is relevant to note that in response to an interim order dated 29.01.2013 passed by 25 this Court in the present Writ Petition wherein, an explanation was sought from the Petitioner to explain his conduct, failing which, heavy cost of Rs.2.00 lakhs would be imposed, it is only on the suggestion made by this Court during the course of final hearing, that the affidavit dated 08.07.2022 was filed by the Petitioner. In the said affidavit, the Petitioner merely reiterated the contentions put forth in the Writ Petition. There is nothing in the said affidavit which can be construed as an explanation of the Petitioner of his conduct as sought for by this Court vide the said order dated 29.01.2013. Under the circumstances, costs as indicated by this Court in its order dated 29.01.2013 is liable to be imposed on the Petitioner. Although the quantum of Rs.2.00 lakhs indicated in the order dated 29.01.2013 is liable to be increased having regard to the passage of more than nine years from the date of the said order, this Court limits imposition of costs at Rs.2.00 lakhs as indicated in the order dated 29.01.2013.
4 (2008) 12 SCC 481 26
33. Hence, I pass the following:
ORDER
i) Writ Petition is dismissed.
ii) The Petitioner is liable to pay the Respondent costs in a sum of Rs.2.00 lakhs within 15 days from the date of this order, failing which, the Respondent shall be entitled to recover the said amount of Rs.2.00 lakhs from the Petitioner through all modes available under law, including attachment of his property as well proceeding against him personally.
iii) In view of the dismissal of the Writ Petition, any interim order granted earlier stands vacated/terminated.
Sd/-
JUDGE nd