Karnataka High Court
Smitha Rajawat Rajiv Kumar vs Rajiv Kumar on 29 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.6859 OF 2024 (CPC)
C/W.
MISCELLANEOUS FIRST APPEAL NO.6902 OF 2024 (CPC)
IN M.F.A.NO.6859 OF 2024:
BETWEEN:
1. SMITHA RAJAWAT RAJIV KUMAR,
W/O RAJIV KUMAR,
AGED ABOUT 38 YEARS,
R/AT NO.505, MERLYN OCEANUS GREEN DALL ,
16TH CROSS, 3RD MAIN, HOYSALA NAGAR,
RAMAMURTHY NAGAR,
BANGALORE NORTH. ... APPELLANT
(BY SMT. VINITHA P.C., ADVOCATE)
AND:
1. RAJIV KUMAR,
S/O SHEO DAYAL PRASAD,
AGED ABOUT 41 YEARS,
EMPLYOEE ID NO.210,
09 SOLUTION MANAGAEMNT INDIA PRIVATE LIMITED
9TH FLOOR, BUILIDNG-2,
PRESTIGE TECHNOSTAR BROOKFIELD,
DODDANEKUNDI INDUSTRIAL AREA,
KARNATAKA, BANGALORE. ... RESPONDENT
(BY SRI SHANKAR BASAWARAJ, ADVOCATE)
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THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 19.10.2024 PASSED ON I.A. NO.7
IN O.S.NO.297/2023 ON THE FILE OF THE I ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE
I.A. NO.7 FILED UNDER ORDER XXXIX RULE 4 READ WITH
SECTION 151 OF CPC.
IN M.F.A.NO.6902 OF 2024:
BETWEEN:
1. SMITHA RAJAWAT RAJIV KUMAR,
W/O RAJIV KUMAR
AGED ABOUT 38 YEARS,
R/AT NO.505, MERLYN OCEANUS GREEN DALL
16TH CROSS, 3RD MAIN, HOYSALA NAGAR,
RAMAMURTHY NAGAR,
BANGALORE NORTH. ... APPELLANT
(BY SMT. VINITHA P.C., ADVOCATE)
AND:
1. RAJIV KUMAR
S/O SHEO DAYAL PRASAD
AGED ABOUT 41 YEARS,
EMPLOYEE I.D.NO.210,
09 SOLUTION MANAGEMENT INDIA PRIVATE LIMITED,
9TH FLOOR, BUILDING-2,
PRESTIGE TECHNOSTAR BROOKFIELD,
DODDANEKUNDI INDUSTRIAL AREA,
KARNATAKA, BANGALORE. ... RESPONDENT
(BY SRI SHANKAR BASAWARAJ, ADVOCATE)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 19.10.2024 PASSED ON IA
NO.3 IN O.S.NO.297/2023 ON THE FILE OF THE I ADDITIONAL
PRL. JUDGE, FAMILY COURT, BENGALURU, REJECTING IA NO.3
FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
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THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 14.11.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant and learned counsel for the respondent.
2. These two appeals are filed by the appellant challenging the dismissal of application-I.A.No.III filed under Order XXXIX Rule 1 and 2 CPC and allowing application- I.A.No.VII filed under Order XXXIX Rule 4 read with Section 151 CPC.
3. The factual matrix of the case of the appellant/plaintiff before the Trial Court is that she is the legally wedded wife of defendant and their marriage was held on 12.12.2021 at Sarovara Grand Hometel, Malad Link Road, Behind Inorbit Mall, Mumbai. Plaintiff and defendant met on a matrimonial website and after elders' consent, they got married and it is an arranged marriage and it is a second marriage for both the plaintiff and defendant. After the marriage, plaintiff 4 came to Bangalore along with defendant and started her marital life in the above mentioned address in the cause title. Initially, they were happy and plaintiff had conceived and she was pregnant for 11 weeks. During March, defendant was diagnosed with cancer and they went to Mumbai to defendant's brother's house to get treated for his cancer and they stayed there for three months. After cancer getting cured, they came back to Bangalore. While getting married, he had not disclosed his ill- health (cancer). In the month of June, in the guise of routine checkup, without her consent and knowledge, got her aborted, from there difference of opinion arose between them and defendant started to harass the plaintiff for small issues. Subsequently, they have sorted out their issues and tried to live cordially. During the month of January, 2023, defendant went to Europe on an official trip. While he was on that trip, he used to call plaintiff and fight with her. Once he came back, he was not normal and he consulted his lawyer friend and brought him home. On his intervention, tried to be normal towards the plaintiff and after few days, he tried to be normal and told 5 plaintiff that, forgetting all the bitter part to live happily in future.
4. It is also the contention that, as defendant without the consent of plaintiff, got her aborted her first pregnancy, she has some issues in conceiving again. Hence, both plaintiff and defendant on consent, on 10.03.2023 went to Nova IVF Fertility Centre to get conceived through such process. Again on 20.04.2023, both of them gone together and got the IVF follow up treatment and the next treatment was due on 11.05.2023 for freezing the embryo. On 02.06.2023, they went for a north-east trip, wherein, defendant started to quarrel with plaintiff for silly reasons. In that trip, defendant forced plaintiff to accompany someone else, as he wanted to accompany a lady whom he has met in the tour. When plaintiff refused to accompany the other tourist, defendant started to fight with her there itself, saying that she is suspecting him and without completing their 14 days tour, they have come back to Bangalore on 05.06.2023 itself. Subsequently, defendant was not normal, he used to fight with plaintiff and throw household things on plaintiff. 6
5. It further contended that it is a defendant's own house. In the said building, in the owner's column, it is mentioned that plaintiff and defendant both names as owners. Plaintiff being his legally wedded wife, she has all the right to reside in the said house. Defendant cannot put her out of the said house, as she is his wife and it is his duty to provide shelter, food, clothing and maintain her. Plaintiff is not aware of any such petition filed by defendant against her. On surprise, she came to know that defendant has put an advertisement looking for tenants for the said schedule premises. Seeing such advertisement, plaintiff has apprehended that he would put her out of the said house and requested to know what is his intention, but he never revealed anything to plaintiff. Hence, filed the suit in O.S.No.297/2023 and sought for an order of injunction and temporary injunction was granted.
6. The defendant appeared and filed the written statement opposing the interim application filed by the appellant. It is contended that the defendant is the owner of the schedule property, but he is not allowing to reside in his own residence 7 because of violent behaviour of the plaintiff towards him. It is contended that the defendant is suffering from several diseases and he is now constrained to live in P.G. accommodation. From the inception of the marriage, the behaviour of the plaintiff towards defendant is disrespectful, quarrelsome, insulting, dominating and monitoring. The defendant has filed petition for divorce in M.C.No.3696/2023 which is pending for consideration. Therefore, plaintiff got infuriated and has filed several false criminal case against the defendant. Defendant is mentally, emotionally and physically tortured at the hands of the plaintiff. She has also made false allegation of abortion without consent and she is a habitual lier and prayed the Court to reject the application.
7. The Trial Court having considered the pleadings of the parties, formulated the points for consideration of the application and answered point Nos.1 and 2 in the 'negative', in coming to the conclusion that plaintiff has not made out any prima facie case and balance of convenience lies in favour of the defendant and not in favour of the plaintiff and interim order 8 granted requires to be vacated and answered point Nos.3 and 4 in favour of the respondent/defendant. Hence, the present miscellaneous first appeal is filed before this Court.
8. Learned counsel for the appellant brought to notice of this Court the reasoning given by the Trial Court in paragraph No.9, wherein the Trial Court comes to the conclusion that in the apartment portal, it is mentioned that both plaintiff and defendant as owners and the plaintiff has been in possession and enjoyment of the suit schedule property along with the defendant. From this part of pleadings, it is obvious that according to the plaintiff, both plaintiff and defendant are the owners in possession of the suit schedule property. The Trial Court also in paragraph No.8, made an observation that defendant is constrained to stay in paying guest accommodation and comes to the conclusion that documents placed by the defendant i.e., registered agreement to sell dated 26.09.2009 reads that defendant herein is the purchaser of the suit schedule property for valuable consideration and name of the plaintiff is not reflected in the said registered document. 9
9. The Trial Court also taken note of the application filed by the appellant/plaintiff for interim maintenance before the Family Court Bhilwara, Rajasthan in case No.319/2023, wherein an averment is made by the plaintiff that she is forced to live with her parents and she is residing with her parents. Surprisingly, the plaintiff has stated in the present suit that she is in peaceful possession and enjoyment of the suit schedule property as on 17.07.2023. The pleadings made on 31.07.2023 in the case before the Family Court is against the same. It is also observed in paragraph No.12 that injunction is an equitable relief and the plaintiff, who approaches the Court of law seeking equitable relief is not entitled to suppress the material facts and vacated the order.
10. Learned counsel referring these reasoning would contend that when the defendant himself categorically admitted in his pleadings that he is staying in paying guest and the plaintiff is not allowing the defendant because of his rude manners, the Trial Court committed an error in vacating the interim order. Learned counsel also brought to notice of this 10 Court placing the material regarding whatsapp messages sent to the plaintiff on the date of filing of M.C. petition contending that the defendant went and filed divorce petition and on the same day, he had sent the message to come to a particular place and when the appellant came there, he left the place and got removed the belongings of the appellant.
11. Per contra, learned counsel for the respondent would vehemently contend that several cases are initiated against the respondent and it is not in dispute that both the appellant and the respondent are married and stayed in the very same house. Learned counsel for the respondent not denies the message sent to the plaintiff on the date of filing the M.C. petition, but contend that, when the appellant herself has pleaded that she was thrown out from the house and she is staying along with her parents at Bhilwara in Rajasthan and pleadings also made before the Rajasthan Court that she is staying along with her parents, question of granting the relief does not arise. The Trial Court has taken note of the said fact into consideration and rightly rejected the application filed under Order XXXIX Rule 1 and 2 11 CPC and allowed the application filed by the defendant under Order XXXIX Rule 4 read with Section 151 CPC and also placed the documents with regard to the proceedings initiated by the appellant before the different Courts.
12. Having heard the learned counsel for the appellant, learned counsel for the respondent and the grounds which have been urged and so also the documents which have been placed before the Court, the points that would arise for consideration of this Court are:
(1) Whether the Trial Court committed an error in rejecting I.A.No.III filed under Order XXXIX Rule 1 and 2 CPC and allowing I.A.No.VII filed under Order XXXIX Rule 4 read with Section 151 CPC and it requires interference of this Court?
(2) What order?
Point No.(1)
13. Having considered the material available on record, it is not in dispute that the appellant and respondent are husband and wife and both of them lived in the address 12 mentioned in the cause title. The material also discloses that difference arose between them subsequently and the appellant contends that the respondent was suffering from cancer and he was treated at Bomaby in the house of his brother. It is also important to note that, in the application filed under Order XXXIX Rule 4 read with Section 151 CPC, it is stated that, in view of exparte injunction order granted, the plaintiff is not allowing the defendant to enter the suit schedule property and she has obtained an exparte order of injunction by suppressing the material facts with a malafide intention. It is also important to note that, it is specifically pleaded by the defendant that he is constrained to stay in paying guest accommodation in view of grant of exparte interim order. Admittedly, the defendant is the owner of the suit schedule property and the Trial Court also discussed with regard to the mentioning the names of both the appellant and the respondent as owners of the suit schedule property, but not the appellant as the owner.
14. It is also important to note that suit was filed on 17.07.2023 and exparte injunction was granted in favour of the 13 appellant, wherein she has stated that she is in peaceful possession and enjoyment of the suit schedule property. But, when the petition was filed before the Bhilwara Family Court in Rajasthan in case No.319/2023 on 31.07.2023, she specifically pleaded that, inspite of discharge of all her marital duties, the behaviour of the defendant has been and continues to be cruel towards the plaintiff, due to which the plaintiff is forced to live with her parents. The said pleading is very clear that she was staying with her parents. No doubt, there are allegations that after filing of M.C. petition, a message was sent to come to a particular place and the appellant also submits that her belongings are removed. In order to substantiate the said fact, the learned counsel for the appellant brought to the notice of this Court that on the date of filing of divorce petition, the appellant was called upon to a particular place and taking advantage of the said message and the appellant was not in the house, removed her belongings and that is an allegation and the same has to be proved. But there is a prima facie material to that effect having sent the message and called upon the appellant to a particular place.
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15. Having taken note of the material on record, the Court has to take note of as on the date of filing of the suit, whether the plaintiff was in possession of the suit schedule property. No doubt, the Trial Court comes to the conclusion that in the notice board both of them have claimed as owners and the same cannot be a ground to vacate the interim order and the fact that both of them are residing in the flat is not in dispute and displaying both the names cannot create any right and that cannot be a conduct to vacate the interim order as observed by the Trial Court. It is important to note that when the suit was filed on 17.07.2023, an exparte injunction was granted in favour of the appellant wherein she has categorically stated that she is in peaceful possession and enjoyment of the suit schedule property. It is important to note that the Trial Court also taken note of the contention of the defendant in the written statement and objections and in paragraph No.8 made an observation when objections to I.A. was filed under Order 39 Rule 4 read with Section 151 of CPC, a specific contention was taken that due to the cruel attitude of the plaintiff, the defendant is constrained to stay in paying guest accommodation. Hence, it is clear that as 15 on the date of filing of the suit, he was not in possession of the suit schedule property and he was staying in paying guest accommodation. The Trial Court taken note of the pleadings of the appellant when the petition was filed before the Family Court, Bhilwara in Case No.319/2023, wherein she has stated that due to the cruel act of the defendant, she was forced to live with her parents and the same is a subsequent date i.e., 31.07.2023, but the suit was filed on 17.07.2023.
16. The fact that the plaintiff was in possession was admitted by the respondent and the Trial Court made an observation in paragraph No.12 that material facts has been suppressed and fails to take note of the fact that as on the date of filing of the suit on 17.07.2023, the plaintiff was in possession of the suit schedule property and the defendant was residing in paying guest accommodation and was not staying along with the plaintiff. The Trial Court comes to the conclusion that the plaintiff has approached the Court with unclean hands and fails to take note of as on the date of filing of the suit on 17.07.2023 the plaintiff was in possession of the property and instead of 16 taken note of the averment dated 31.07.2023 and while granting the temporary injunction, the Court has to take note of who is in possession as on the date of filing of the suit, but the Trial Court erroneously comes to the conclusion that the plaintiff has not made out any prima facie case. The Trial Court fails to take note of balance of convenience and hardship when prima facie the plaintiff has pleaded that she is in possession of the property and the defendant is causing interference and also placed the material before the Court for having removed the belongings of the appellant calling her to a particular place after filing of the divorce petition on the very same day evening and the Court has to take note of the conduct of the respondent also. The respondent did mischief by calling her after filing of the divorce petition to a particular place and in the absence of the appellant went to the house and removed her belongings. This has to be taken note of and the material is also placed with regard to the said fact placing the message sent to the wife and called her to a particular place and removed her belongings. These are the aspects which ought to have been taken note of by the Trial Court and the Trial Court committed an error in vacating the 17 interim order. Hence, the interim order passed by the Trial Court requires interference of this Court and this Court has to safeguard the possession of the plaintiff as on the date of filing of the suit since she was in possession and there is an admission on the part of the defendant that he is staying in a paying guest accommodation. When he is staying in a paying guest accommodation, he cannot interfere with the possession of the plaintiff though she is not the owner, but she is the wife of the respondent and interim injunction requires to be granted in favour of the appellant having considered the material on record. The Trial Court ought not to have vacated the exparte interim order granted in favour of the plaintiff considering the subsequent pleadings. Hence, I answer the point for consideration accordingly.
17. In view of the discussions made above, I pass the following:
ORDER
(i) The appeals are allowed.18
(ii) The impugned order passed by the Trial Court on I.A.No.III and I.A.No.VII are set aside.
Consequently, I.A.No.III is allowed and I.A.No.VII filed under Order 39 Rule 4 read with Section 151 of CPC filed by the respondent is dismissed.
Sd/-
(H.P. SANDESH) JUDGE ST/MD