Sri.Basavaraj S/O Mahantappa ... vs Smt.Shantavva W/O Fakeerappa ...
2021 Latest Caselaw 5264 Kant

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     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 2ND DAY OF DECEMBER, 2021

                            BEFORE

         THE HON'BLE MS. JUSTICE JYOTI MULIMANI

    REGULAR SECOND APPEAL NO.100517 OF 2019
                  (DEC/INJ)
BETWEEN:

SRI.BASAVARAJ
S/O MAHANTAPPA GODI
AGED ABOUT 45 YEARS
OCC: TEACHER
R/AT: JALIHAL, TQ: BADAMI
DIST: BAGALKOTE.                           ...APPELLANT

(BY SRI.MRUTYUNJAY TATA BANGI, ADVOCATE)

AND:

1.      SMT.SHANTAVVA
        W/O FAKEERAPPA HORAKERI
        AGED ABOUT 30 YEARS
        OCC: HOUSEHOLD WORK

2.      KUMARI.LAKSHMAVVA
        D/O BASAVARAJ GODI
        AGED ABOUT 11 YEARS
        OCC: STUDENT.

        BOTH ARE R/AT: DHANAKSHIRUR
        TQ: BADAMI
        DIST: BAGALKOTE.

        R-2 MINOR REP. BY R-1
        MINOR GUARDIAN MOTHER

                                      ...RESPONDENTS
(BY SRI.S.C.HIREMATH, ADVOCATE)
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      THIS RSA IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908.


      THIS RSA POSTED FOR ADMISSION THIS DAY; THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Sri.Mrutyunjay Tata Bangi, learned counsel for

appellant has appeared in person.

Sri.S.C.Hiremath learned counsel for respondents has

appeared through video conferencing.

2. This appeal is from the Court of the Senior Civil

Judge and JMFC, Badami.

3. Appeal is posted for Admission after issuing

notice to respondents.

4. For the sake of convenience, the parties are

referred to as per their rankings before the trial Court.

5. The short facts are these:-

The plaintiff-initiated action against the defendants for

declaration that the first defendant is not the legally married

wife and the second defendant is not born to him and a

consequential relief of injunction restraining the defendants

from getting their names entered in the service records.

The plaintiff stated that he was married to one

Sumangala Mudakanagoudar and from the wedlock, he did

not get any issue. It is further stated that a matrimonial

case in M.C.No.05/2008 was filed before the Court of Senior

Civil Judge, Badami and the marriage was dissolved by a

decree of divorce on 10.07.2008 and thereafter, he has not

married. However, the first and the second defendants-

initiated action seeking maintenance in

Crl.Misc.No.163/2009 on the file of JMFC Badami alleging

that they are the wife and daughter of plaintiff. They also

filed a petition before the Block Education Officer to enter

their names in the service records. Hence, plaintiff was

constrained to file suit seeking appropriate reliefs.

After the issuance of the suit summons, defendants

appeared through their counsel and filed written statement.

They denied the plaint averments. The first defendant

contended that her marriage was solemnized on 20.02.2002

at Manneri Village and she led matrimonial life with the

plaintiff and the second defendant was born. It was also

contended that she is not aware of any other marriage. The

plaintiff willfully neglected and refused to maintain her and

daughter hence, they filed a petition seeking maintenance.

Among other grounds, they prayed for the dismissal of the

suit.

Based on the above pleadings, the trial Court has

framed the following issues.

"1. Whether the plaintiff proves that the

defendant No.1 and 2 are not his legally

wedded wife and daughter respectively?

2. Whether the plaintiff proves that the

defendants are trying to enter their

names as nominee in the service register

of plaintiff?

3. Whether the plaintiff is entitled for the

relief of permanent injunction as sought

by him?

4. What order or decree?

ADDITIONAL ISSUE:

1. Whether the plaintiff is entitled for the

relief of declaration as sought for?"

To substantiate the claim, plaintiff got examined

himself as PW1 and two more witnesses were examined as

PW2 and 3 and produced nineteen documents which were

marked as Ex.P.1 to Ex.P.19 and also Ex.P19(a). On the

other hand, defendant No.1 got examined herself as DW1

and two more witnesses were examined as DWs-2 and 3

and produced six documents which were marked as Exs.D1

to D6.

On the trial of the action, the suit of plaintiff's came to

be partly decreed. The defendants filed appeal before the

First Appellate Court in R.A.No.27/2014. The appeal filed by

the defendants was partly allowed and modified the

judgment and decree of the trial Court and rejected the

relief of permanent injunction. Hence, this regular second

appeal is filed under Section 100 of CPC is filed.

6. Sri.Mrutyunjay Tata Bangi, learned counsel for

appellant submits the judgment and decree of both the

Courts is contrary to law, fact and material on record.

Next, he submitted that both the Courts have erred in

relying upon Rule 302 of the KCSR to deny the relief to the

plaintiff.

A further submission was made that both the Courts

have erred in not injuncting the defendants from getting

their names entered in the service records when there is no

evidence adduced by the defendants to show that they are

the wife and the daughter of plaintiff.

Counsel vehemently submitted that having held that

the first defendant is not the legally wedded wife of the

plaintiff, the Courts should have injuncted the defendants

from entering their names in the service records. It is

submitted that the denial of relief of injunction is un-

sustainable in law.

Lastly, he submitted that the findings recorded by the

Courts are erroneous and lack of judicial reasoning.

Therefore, he submitted that the second appeal may be

admitted by framing substantial questions of law.

7. Per contra, Sri.S.C.Hiremath, learned counsel

for respondents justified the judgment and decree passed

by the Courts below. He submits that no substantial

questions of law arise for consideration and hence, the

appeal may be dismissed at the stage of admission.

8. I have considered the contentions urged on

behalf of appellants and respondents.

The facts have been sufficiently stated. The suit giving

rise to the appeal was brought by the plaintiff seeking relief

of declaration and injunction.

The plaintiff stated that he is a permanent resident of

Jaalihala Village of Badami Taluq and he is a primary school

teacher at Mudhol and as on the date of filing of the suit, he

was residing at Maarapur Village.

It is contended by the plaintiff that the defendants are

strangers and they are not related to him. It is his specific

case that he is married to one Sumangala Mudakanagoudra.

It is relevant to note that due to difference of opinion and

misunderstandings, his wife Sumangala filed a petition for

divorce on the file of Senior Civil Judge, Badami in

M.C.No.05/2008. The notice was served and the plaintiff did

not appear in the said proceeding. He was placed ex-parte.

The petition came to be allowed on 10.07.2008. The said

order was challenged by the plaintiff before the High Court

in MFA No.20266/2008 and the appeal was also dismissed.

It is not in dispute that the defendant-initiated action

against the plaintiff seeking maintenance in

Crl. Misc No.163/09.

To substantiate the contention, he examined himself

as PW-1. He has examined other two independent witnesses

as PW-2 and 3. They have deposed that plaintiff was

married to Sumangala.

It is relevant to note that in M.C.No.05/2008, the

petitioner Sumangala has stated that defendant No.1 is the

wife and defendant No.2 is the daughter of plaintiff. Taking

note of the said statement, the trial Court was constrained

to consider the factum of marriage and paternity.

Ultimately, the trial Court in extenso considered the

provisions of Sections 11 and 16 of the Hindu Marriage Act,

1955 and concluded that the marriage of plaintiff with

defendant No.1 is null and void, however, held that

defendant No.2 is the daughter.

The trial Court in extenso referred to the evidence on

record and partly decreed the suit holding that the first

defendant is not legally wedded wife of the plaintiff and the

prayer that the second defendant is not the daughter was

dismissed. The trial Court also restrained the first defendant

by way of permanent injunction from entering her name in

the service register of the plaintiff.

As against the judgment and decree, both the plaintiff

and the defendants preferred appeal before the First

Appellate Court. The First Appellate Court dismissed the

appeal filed by the plaintiff and the appeal filed by the

defendants was partly allowed and the judgment and decree

of the trial Court was modified and the suit of the plaintiff

for the relief of permanent injunction came to be dismissed.

In my considered view, the First Appellate Court has

examined the evidence on record and reappraised it. I am

satisfied it has been appreciated in the correct perspective.

It is relevant to note that interference with a finding

of a fact by the High Court is not warranted if it involves re-

appreciation of the evidence. Under Section 100 of Code of

Civil Procedure 1908 (as amended in 1976), the jurisdiction

of the High Court to interfere with the judgment of the

Courts below is confined to hearing on substantial questions

of law.

It is perhaps well to observe here that after the 1976

amendment, the scope of Section 100 of CPC has been

drastically curtailed and narrowed down. The High Court

would have jurisdiction of interfering under Section 100 of

CPC only in a case where substantial question of law is

involved and those questions have been clearly formulated

in the memorandum of appeal.

9. No substantial question of law arises for

consideration. Hence, the appeal is dismissed at the stage

of admission.

Sd/-

JUDGE

TKN/VMB-1