Karnataka High Court
Smt Puttamma W/O. P R Venkatachalababu vs Sri P B Venkatachalababu @ P R V Babu on 25 March, 2010
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 258: DAY OF MARCH 20160. > ISP ORE WRIT PETITION No. 12376/ 2009 (GM-CPE) BETWEEN: |. SMT. PUTTAMMA IN Ww hoe P, R, v E NKAT ALABABU: - AGED ABOUT SS YEARS. © 2 SMTS. voOCHe D/O. Ps Re PPV Ww fO). NASD MY AGED. Al 30 HALABABU, 25 YEARS, Sv, SR INIVASA, LO. PR. VENKATACHALABABU 9G POORLY. BABL AG EDA BOUT 33 YEARS. ad 2 PE (HONE RS 1 TOG ARE RE Sit JING AT NO 558 /S5&, LOM CCY MAIN ROAD. RAIA INAGAR GT BLOCK, BANGALORE | S60 G16. (Sy Sri. G. A. VISWANATHA REDDY ADVOCATE} L AND Z SREP. R. VENBKATACHALABABL @ PL RIV. BABL,. 5/0. RAMASWAMY, AGED ABOUT 3&8 YEARS. HESARAGHATTA HOBLI, BANGALORE NORTH TALUK. BANGALORE DISTRICT 2 THE GENERAL MANAGE 20 ADMIN & LAND ACQUI NON). . KSSIDC, RAJAJINAC \R INI PSTRIAL ESTATE. RAJAJINAGAR, BANGA,ORE ~560° ot. "RESPONDEN?TS oR 2 SE RY aot pb) | THIS. WRIT pe EYTie WNOIS ai RD PRAYING TO. i) QUASI THE ORDER DATED 79-03.2009 PASSED BY ae COURT OF THE PRINCIPAL FAMILY COURT. BANGALORE DISTRICT. BANCAL ORE PASED IN O.S. NO.50 OF 2008 FON LA.NOA™ VI DE ANS JEXU Re CF Gi) STAY FURTHER PROCEEDINGS » IN O:S. NO.50 OF 2008 PENDING ON te RTL. i Or THES PRINCIPAL PAMILY COURT. BANGALORE _ DISTRICT. J BANGALORE, oo = THis Writ, "Petition coming on for dictating orders inis days the © our made the following: This Writ Petiton is Aled by challenging the order dated [93.03.2009 passed by the Principal Judge of the Family Court in O.S. No. 50/2008 on LA. No.d. whieh has been fled under Order VI Rule 1) of the Code of Civil Mrocedure, | 90s (for short 'the Code), 2. The facts of the case in brief are tat. the' GYSt respondent herein has filed OS, No! 90/2008. betare the
Principal Judge. Family € QUIrt i seeking Le follows We relets:
(a) A JUDGMENT. "AND 'OECRE fe FOR DECLARATION cectaring that the first defendant is n ot the wife. of the plaintiff and that the Uefendanis 2 'andc.3 are not the chiidren of the © pial itl oe i (by Cansequ ently declare that the Judgment end order/award dated 06.10. 2006 passed ms Bye Hon'ble erincigal Judge, Family Court 8B angalore City in GriMisc. Case No.5'¢ REA and void. Aad not binding on m piainti (C)> Cone sequel ly grant a DECREE wal PERPETUAL INg JUNCTI ON against he 4° defendant restraining the 4" otopdan from attaching the salary or any financial bereliis on account of the plaintiff's employment under the 4" defendant in any "Manner whatsoever:
Grant such rel Court joome, "i t circumstances of i award of the costs of of justice and equity.
3. During the pendency of the said siait.
appheation (LAA) was filed by the peritioners hereia) 4 Order VIL Rule 1) of the Code. seeking rejection of theava The said application was rejected: iis the saideoarder whith is in challenge in this Writ Petition
4. At this slage, itis necessary to Bive the background facts of the case. The petitioners. hetein had (fled Criminal Miscellaneous No.5 /2004 before ahe- Family fourth ail Bangalore seeking maintenance 'by- invoking Section 125 of the Criminal "Procedure. Code, ° _ Phe said petilion was contested bythe Respondent' heretn and by an order data O06. 1 0.2006. tne petition was allowed directing the | Respondent herein 16. psy a sum of Rs.2.500/- per nienth by way of inaintenarice to the first petiioner herein with effect from 02.01.2004 and the maintenance for petitioners 2 and 3 was relected. Being agerieved by the said order. ihe | Respondent herein had preferred the RPFC No. iG!, ~ before this Court. The Revision Petition was also dismissed 'after contest by an order dated 16.12.2006. During ihe 3 pendency of the revision petition before this Court. the a .
ee cna x G. This contended om behall of Ure petitioners that the Pamily Court was not right in dismissing the applica holding that the reliet which is sought by te olainuith Nes Too be looked into during the merits of the ease anid ihe. Titel stage Ure plaint cannot be rejected as SOUGHT fhe submits Chat considering the history of litigation beiween tye. parties, the Family Court ought. tohave glowed the satt application. He submits that. Of anearlier oncasior, ip OLS. No. 231 /2006, when a-simiar-application wes filed under Order VIP Rute | bof the Cade. ihe Parnily Court bad allowss jon and orejected the plaint aid the said apptica similar order ought to-have been made in the present case also. as the respondent py iiling one suit afer another fas abused the process of Court. In support of his conterition, ~ he has relicd upon certain decisions. oF Rer. contra. in support of his subrnissian. the as learied> counsel for the respondent submitted that the _svaject matter of the O.S, Noe.50/2008 is totally different in { Fe fedd as Much as the | Respondent js seeking a declaraiian thai "the first petitioner is not his wife at all and that the order z wm] passed in the earlier occasions in Crl.Mise 9 awe _ and void and that the respoudent is entithe:
such a suit and therefore. (he Fariiby Court was arouse rejecting the application by holding that the reer suit would have to be gone into betare. Wie saicl appli a considered. Therefore, he submitted that ihe sated order dou not call for interference.
S. He has also drawn miy attention te the contents « the plaint ine O.S. No.50/2608 fo CGntend Unit in the evidence of first péutioné: iy Cel Mise 5/2004, in substance she has stated Ulae-she is nol the wife of the f Responden:
hereins The orders passed in Cri. Mise.5 /2004 directing the | Responder, te pay niaitenance iS MOL AL aH USP ane) prayer and| perefore, Wie suittiled by the | Respondent in the above terms is in-aeccordance with law and the Family Court righthy rejected the application fled oy the petitioner herein. '9. + Having heard the learned counsel on both sides end @1 perusal of the material on record. the ony post thas 4 ene arise for ry consideration is as to whether the Family Court ought io have rejected the plaint in O.S. Ne. 50/2008 1G. From the ruaterial or record, it is ret inoclispure that the petitioner herein had pretevred oa Crh. Mise. No.5/2004. The said proceedings.were coitested by 'ihe: respondent and therealter = an order ~ regarding the maintenarice came to be made on 06.10.2006. ny lectin the said case the following points. were taken up for consicderation:....
cca "Whether the (pe! tiioners have proved that 2 the fist. Yetitioner is the legally wedded "wife of the résperident and petitioners 2 and 3 were born in the wedlock wilh the ~ fesponaenr?
_ (i Whether the petitioners have | "the "respondent. even though sufficrent means, had refuse neglected to maintain them?
di Whether the petitioners are entitled for oo maintenance? If so, to what amount?
"(iv) What order?
i Support of the petitioners' case. PW-) to PW 3 were cexenined ard i7 documents were produced which were Jtarked as Ex.P-} to Ex .P-E7, While in suppart of respondents case, RW-1) fo RWob were examined documents were produced which were marked as LEX Re 16 Ex.R-9. On the basis of the said evidence. the "amily © held Point Nes.) and 2 in the affimmative aril Pott Ne partly in the affirrnative ard awarded mainfenarce ot Mich Geabe ay Cie, Rs, 2,500/- p.m. to the first petitioner from | petition. while the claim of the petitioners 2 and 3 fo maintenance was rejectec. fn the said decision. the Family Court has held that there was. sufliciertt. evidence to sfiow that the first petitierer is a lewall¥emarried wie af ihe fe was solenuiiser! im the respondent, and: that the. meric month of Apil LO72. al Chennarayvaswami Tempie. Sill Hosakote Village, AvekaiPalias, ine Being . agerieved by the said 9 order petition was cortested by Lhe petitioner herein arid an order dated (9.12.26006 was made by this Court, dismissing the Revision Petition and uphalding the order vranting cmaintenance by the Family Court to the first petitioner hereiy. While doing so. this Court referred fo 10 observations of the Family courl at paragraplis PO and |i and the evidence referred to by the Family Court -to-show that the relationship of the Frasband and wile savas presen) between the first petitioner and the respondent berens. "las Court also said that the contention of the respondent. tia lat 1 .
PLO be, first pelilioner is the aust of the respondent. os:
accepted as the same was not -specifically. pieaded ir ihe statement of objections Alec. by: the respondent before the Fanitly Court.
i2.° -As-agamet ~ the ~ said order passeq in RPFC 16) /26596 Toy. Chds.. Court. the resporderd fias riot caged) Lhe sauie. belore the apex court. AC Sill wes, however. fled curing. the pendency of the RPRC ane subsequent to tne disposal of (he Cri. Mise. belore the Pauly Cours by thedirst respondent herein in O.S. Now29) which an vapplication under Order VIL Rule i) eame fo be made ancl the said application was allowed and the plaint was rejected. There has been no challenve to "that was claimed was tne reel of permanent il against the petitioners Rereii mot to attach the salary of ihe first respondent. No other relief. which has beer soit in the instant case, has been sought in OLS, No. 224/ 2060--
i8. Now, the basis of making the praver in Os. No.50/2008 is that the evidence jet in by ime petitton herein has not been appreciatece by the. Famely "lourt ane that an order erroneously frais been nade directing the | Respondent te pay maintenanee. to the. | Petitioner which 1 pay .
according to the fiest resporidentis.nmot-ccorrect. In feck. ne a : 1 fraud has 'Deen areged-and-neither avy contention that the 4 order assed by "the Family Court in CriMise. Neo /2ce fHetrenor which would go to te ruc: ab tic was without pure ' matter has peen. raisedsin O.S. No.bO/2008. Lo is aise necessary to bear in vmind that ihe judgment in © ard os NOO/2004. fias been allirmed by this Court ii No.1 G1/2006.. HU the grievance of the respondert was thai ihe evidence let ir: was mot considered by the Courts im its proper perspective in Cri.Misc. No.5/2004 as well as by tus "Court in RPFC No. 161 /2006, nothing prevented the first erespondent fram challenging the said order belore the apex iz court. Having accepted the said order in RPFPC No. 161 /2006 confirming the order passed in Cri. Misc. No.S/2004 anch in the absence of there being any contention wilh iegard-to de fraud or any other like contention which would G6 Fo The reey of the case to seek malitv of the said order passed in. Crt. Misc.5/2004. the question Uvat-arises*is as ts. 1chetherdhere. was amy cause of action in filing the suil seeicng relief in O.S. No.50/ 2008.
id. A reading of the plaintia OS °No.50/2008 wotlel make if apparent-vhat Cv Mise. No.5 /2004 was contested seriousiveby the respondent herein and the main thrust of the allegations made -in-the. plaint are that the petitioner herein (first. defendant. in. OS No.50/2008) had played tread on lhe "Family Court. by misrepresenting, that she fac obtained an, order of maintenance in Cvl. Misc. No. S5/200¢ Sand. ihat "hes. deposition in Cvi Mise. NoS/2004 clearly proves chat ihe first peiiiioner herein was the paterniel aur of "he plaintiff and that she is not the wife of the plaimtll, The said allegations are contained in paragraphs 6 and 7 o! the piaint which are extracted as follows: g senisced. she suit cof the plaintiff by i3 The first defendant hough was representad by a counse! did not chose iO Hie. aay > oblections fo the [A's under Order 6 Sule 1? and Order 1 rule 10 CPC. Instead, she got an 1A under Order 7 Rule the suit contending. that the! res S10: é Se 0 action for the suit 'atc... an dismissal of Ihe. suit iiself.. | i hie es unfortunate for the plaintiff that. this Hon'ble Court by mistake. ever 1. without naticing Ine pendency of the Wo IA' s meni ranec above. considereu the applic ation of the first Hefandant | tinder . Order VE Rude tidy. é ser in 1G thal the re! het of declaration is nat men Jn the suit and under the ciroumstances: there is no cause of action for, the 'Se ait etc. A certificate copy of the order al this Hon'ble Court made in OS No.231/2006 dated 13.03.2008 js also produced for the kind perusal of this Homble Court. The plaintiff also produced tne copies of the IA's filed by Alm ou:
Order VI Rule 17 and also under order | Rule 10 CPC filed by him in OS.
NO.231/2006 for the kind Dberusal of this Hon''bie Court. The plaintiff aiso produces & a 'hrespecttully submit that the first defend:
has played fraud on this Hon'bie Court by 14 the copy of the deposition of the frst defendant as PW-1 in C.Mise 5/2 which she has stated as follows:
Hallallappa is my eran father, Bestharn veal Muiiswmappa as. fie sort of Halkitlappa. One Raul isn )so © son OF Halfallapoas. Ramat as Fay father. deyarmimna "is the datigher, al bestumanaliilfi » Munniew: ainapp a. Jayarrivia is", tite mother of the ReSpandent."
The above statement, in 'ihe deposition of "the first detardant Cle arly proves that the firs! defendant is the mater al aunt of the "plaintiff and 'Ipat she 'S mot the wife of the plaintiff.
making false averments and by making misiepresentation to this Hon'ble Court and _ has obtained the order of maintenance in 'C.Misc.5/2004 at the hands of this Hon'ble Cour 1@ ofher paragraphs in the plain are paragraphs Wich are extracted as follows:.
Furthermore, the first defendant is in ime ia 16 (14) The causes of action for the sult a: Sean 06.10.2006, 19.12.2006 and... "arr.
13.03.2006 when this Hon'ble Court: hac . by mistake and without obs: erving. the pending |A's had dismissed ihe: au a O.S. No.231/2006 on_ 43. 93. 2008 » aad « subsequently withib. the Jurisdiction of thi Hon'ble Courl.
16. On a reaeins of the paint as a@-whole and yarticularly the varagray sHS € Ntracte d above, it becomes clear : i vee Lhat 0 cause of abe tion os inde 33 ' for fi ing the suit. In Gary ihe allegations ay | frend is "based on the se-catice misrepresent aliois naies by "he 'first pelilioner herein in Cvl.Mise. No. 5/2008 ch Wink ie course of her evidence. The saicl evidence ce exteacie' in paragraph 6 of the plein as follows: -
i The plaintiff also produces the copy of icy ihe deposition of the first defendant as Pw- Tin C.Misc.5/2004 in which she has stated as follows:
Hallallappa is my « One Besthamanahalll Muniswmappe is the son of Hallallappa. One Ramaiah is also son of Hallallappa a a is IS. His also n ecessary Lo note that the may er hats comention with regard to seeking the relélls he OLS. ?
No.50/2008 is that the | Petitioner Herein is. mor Pie adig of. the | Respondeni. [t is NCCeSSALY LO note that Tit. this chbere proceedings which had been fled aie Contested by both the sides, this issue has not al wal been comiested by the respondent and = the . dact ~ rematias "that an - order for Mlanileriance or the basis'ot ihe fa : hei "the Hrs petitiones ihe wife seakonneler in iny beet accepted alter ihe ronchision of the proceedings in RPFC. Even mM OLS, NO2S by 2006. . whi 1Gbh wens s Tiled during We pencenoy af RPE: belore this Court "no relief a AS, sought IN the present san ie. OS, No.50/2008. hae 7 SOUERL Thal was @ suit with a prayer for Bere i Injunetion, mor lo attach the salary Of the | Respondent. "it is not kriown as to why the respondertt ciel Hot "raise any. issue about the relationship between the parties ri the said suit by makin Le a appropriate prayer. vi9. Be that as it may. The fact remains that when the Plaint was rejected in the said proceeding Le. fa OS ig No.231/2006, there was no further Challenge to thie sald arder. "The sum and substance of the proceedings Hed by the first respondent herein stibsequent to the diSpesatar Cri.Misce, No.5/2004 and RPFC is GRY To get over the anders passed by the Courts ancl is nothine short at an abe process of courts. Tf is not forthcoming as toavtiy thecoreder> passed by this Court in RPPC.I1GY (2006 was ot Challerieed before (he apex court and in ordsy towel Over the said decrce lor maintenance, the presen Sut eas been (lech wit alieping fraud oriirny suck. grounds which are NHecessary to seek nullityof decree Grary order of the Court. PO Lap Ihe. Gircunrstaaces, the Trial Court OueNE 1O have considered the history of litigation between the parlies whis considering the application filed under Order Vi Rule Ad Of che Cade. Instead the Trial Court has ouly meld that i is ory caller: considering the suit on merits that the application under Order VIE Rude 1L can be considered. The approach of the Trial Courr is Wholly miscorneceived a a ris@tided.
20
2). Un this context, it would be mecessary la refer ta the decision of the apex court on the point, roparteéd in (1977) 4 SCC 467. in the case of TP Ariondandaay versus ate satyapal and another, wherein agaist an order of eviction, the tenant had filed a sutt tor permiarient PYLCHON, aM the landiord and an application. led uneler Order MNXx iN | Rule 4 of the Code had been allowed by the TraiteCouri by vacating the exparte order of feniporery Injunetion. The Supreme Court beld there ibe Trial Court miust remeiibes (hat ion a meaniighal--no. normal reading of the plaint i is Merlesth, vexatious and aeritléss in the sense of jet disclosing a clear rity Lovsue, it Should exercise iis powey under Order VI Rule 11 of the Code taking care to see thet the ground mentioned therein is fulfilled. If clever "Mas ereated the illusion of cause ol achior, (he Court raast Snip inthe, bad.at the first hearing by examining the Dariy searchingly under Grder X of the Code. An aclivist judge is ihe answer to the responsible law suits. The Trial Courts "wetid insist imperatively on examining the party at the firs hearing so that bogus litigation can be shet down ar it 2 one ie i 21 earliest stage. The Penal Code is aisn resoutreelil emoueoh ia ~ ms meet such men and must be iigeered agains! CAEN
22. Similarly. in a decision of His Conetreportec diy:
ILR 1994 KAR 230 iNarnatelce Banke V/s. F. Gapulaicrishine Rew; a reference has beer made to the afore mentioned Gecasion and it has been held that i a party by file an under Order VH Rule j leech ak the Code can make out a case for rejection of the plait. it would be tute GXEFcIse lo keep a Sull pending so-as. ta underso- the formalities of ihe trial, before lacing a disinissal:, "Purther: Keeping such a san pending would led it Lnecessary farassrent Ob ihe OP hn clelerichaaat: "i wil] he Perrier ny Ihe abuse of the Process the Court atthe behest of a plaintilf who is MO entitled ta any vebel, witimately. {9 such a situation. the approach + be adopted is fO, Conmsider the Maintainability of the suin aa the carliesi. It is for che saicl purpose that order VIP Rade? l
- OF the. Code is Meant, so that meritless, Brouridless gar ovesctious litigations are mipped at the bud. Therefore. he approach of the Trial Court in the instant case [hat the i "QueSLION 1S as io whether the relief could be Granted would ae have to be looked into at the lime of consideration.G!) the merits of the case and that the plaint could ret be rcieied. at this stage is not a right approach, 243, Having regard to the lestory of litigation betweer the parties, the finality of the orders and there beine absetied of material for seeking relief as'extracted 'above, oni. reading of the plaint in O.S. No,50/2008, the Trial Couiit was rial right in dismissing the application filech dnder Order VIE Rule Hl oof the Code... For the aloresaid "reasous. the said application weld have "o-be allowed. consequently, the plait fed fr.O.S2No-BO/2008 i rejected. bv allowing this Writ Petition.
24. Parties to bear their own costs.
a Sd/-
Lo JUDGE RKR/-