Smt. Neelambika K M vs Sri. B S Kiran
2022 Latest Caselaw 8257 Kant

                            -1-



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 07TH DAY OF JUNE, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.3396/2022 (CPC)

BETWEEN:

SMT. NEELAMBIKA K M
(ALIAS SHOBHA N T ALIAS AMBIKA)
AGED ABOUT 42 YEARS,
D/O N R TERDAL,
R/AT SRI RENUKA NILAYA
PENSION MOHALLA
CHIKKAMAGALURU - 577 101.
                                           ... APPELLANT

(BY SRI. MANJUNATH PRASAD H N, ADVOCATE)

AND:

1.     SRI. B S KIRAN
       AGED ABOUT 58 YEARS,
       S/O SEETHARAM BETTADAPURA,
       NO 203, LAKSHMI SADANAM BUILDING
       NO 9, SRI RAM MANDIR ROAD,
       BASAVANAGUDI, BENGALURU 560 004.
       ALSO AT
       NO 14, 1ST CROSS, C R LAYOUT,
       J P NAGAR 1ST PHASE,
       BENGALURU - 560 078.

2.     SRI AMERESH GOWDA M
       AGED ABOUT 38 YEARS,
       S/O MUNIYAPPA, NO 203,
       LAKSHMI SADANAM BUILDING, NO 9,
       SRI RAM MANDIR ROAD,
                              -2-



       BASAVANAGUDI,
       BENGALURU - 560 004.
                                          ... RESPONDENTS
(BY SRI. MANIKANTA K.M., ADVOCATE)


      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER. 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
23.12.2021 PASSED IN OS.NO.4881/2021 ON THE FILE OF THE
LXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, CCH-70 ALLOWING THE I.A.2 FILED UNDER
ORDER 39 RULE 1 AND 2 OF CPC.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

This Court must exclaim, have things come to

this! The appellant is an estranged wife embroiled in

litigation with her husband, and her erstwhile counsels

[the respondents] have commenced the suit in

O.S.No.4881/2021 on the file of the LXIX Additional

City Civil and Sessions Judge, Bengaluru (for short,

'Civil Court') against her for recovery of Rs.4,50,000/-

along with interest at the rate of 24% per annum from

5.8.2021 and for further claims as mentioned in the

plaint.

2. The respondents have filed multiple

applications, including an application under Order

XXXVIII Rule 5 of the Code of Civil Procedure 1908 (for

short, 'the CPC') for attachment of the interim

maintenance to be paid to her in matrimonial

proceedings in MC No.163/2015. This application for

attachment before judgment is rejected, and the

respondents have apparently filed a writ petition calling

in question such order. Notwithstanding the same, they

have persisted with the present application for

temporary injunction against the appellant from

withdrawing, without leave of the Civil Court, any

amount directed to be paid to her, either as interim

maintenance or permanent alimony or any amount

settled in MC No.163/2015 pending on the file of the III

Additional Principal Judge, Family Court, Bengaluru).

3. The respondents have also filed an

application in MC No.163/2015, an inter se proceedings

between the estranged couple, to implead themselves.

This Court must caution the respondents. The

respondents should ask themselves: have they crossed

the line here and are they being vindictive when they

are expected to conduct cases with a strong sense of

detachment, and even if they are not vindictive, can

they afford to give the impression that they are?

4. The Civil Court, by the impugned order

dated 23.12.2021, has restrained the appellant from

receiving, without its leave, any amount consequent to

the orders in MC No.163/2015 (pending on the file of

the III Additional Principal Judge, Family Court,

Bengaluru). The Civil Court has premised its order in

its observation that the respondents' claim is for

professional fee for the services rendered to the

appellant, and merits of this claim will have to be

adjudicated after trial. The Civil Court has also opined

that the respondents could be put to difficulty if they

are unable to recover the amount if they succeed in the

suit. However, it is obvious that the civil Court has not

considered its earlier order rejecting the application for

attachment before judgment.

5. Sri H.N.Manjunath Prasad, the learned

counsel for the appellant, while trying to impress upon

this Court [and, perhaps upon the respondents'

counsel] the role of a learned member of the bar in the

conduct of matrimonial proceedings, submits that the

appellant, an estranged wife, has been prosecuting

different proceedings against her husband, including

the proceedings in MC No.163/2015. The appellant is

granted interim maintenance at the rate of Rs.20,000/-

per annum in this case and she is entitled for arrears of

interim maintenance of around Rs.10,00,000/-. She

has not received any amount. The cheque issued by her

husband for a sum of Rs.3,00,000/- is also returned.

The purpose of granting interim maintenance to the wife

stands frustrated and the impugned order, which

creates further embargo on the appellant, aggravates

the appellant's current condition.

6. The learned counsel argues that these

circumstances have not been considered by the Civil

Court in allowing the application, and he canvases that,

because of the provisions of Section 60(1) (n) of CPC,

maintenance, including the arrears of interim

maintenance, cannot be attached. However, the

canvass based on the aforesaid provisions are not

considered because the respondents' case for temporary

injunction against the appellant from receiving interim

maintenance can be considered even otherwise, and the

merits of this argument must be tested in the writ

petition filed by the respondents against the rejection of

their application for attachment before judgment.

7. Sri K.M.Manikanta, the learned counsel for

the respondents, submits that the appellant has

practiced fraud on the respondents who have assisted

her, and this can be seen, from amongst others, the fact

that there are certain interpolations in the vakalath filed

on behalf of the appellant to avoid respondents'

appearance on her behalf in MC No.163/2015 and the

legal notices issued to her are returned unserved with

an endorsement that she does not reside at the address

though, even according to the details furnished in the

present proceedings, she resides in the same address.

8. The learned counsel is unequivocal in

stating that the respondents' cause for the present

application is their perceived apprehension that the

appellant would flee from the jurisdiction of the civil

Court and therefore, the application is well founded

given the provision of Order 39 Rule (1) and (2) of the

CPC. The learned counsel also submits that to justify

the grant of order against the appellant from

withdrawing the interim maintenance/arrears, inherent

jurisdiction of the Civil Court under Section 151 of the

CPC is invoked.

9. If the respondents' cause for the present

application is their perceived apprehension that the

appellant could flee from the jurisdiction to avoid

consequence of a possible decree, the present

contention that the appellant has played fraud against

the respondents would be extraneous for the purposes

of the case. Further, if the earlier application under the

Order XXXVIII Rule 5 of CPC, based on the very same

cause viz., the respondents' perceived apprehension of

fleeing from justice, is rejected, the question that begs

answer is, whether another application under Order

XXXIX Rule 1 and 2 of the CPC on the same cause is

maintainable.

10. The learned counsel for the respondents has

no answer for this question and the Civil Court, fatally

for the appellant's case, has failed to consider the merits

of the respondents' application under Order XXXIX Rule

1 and 2 of CPC in the light of this and other

circumstances. The question of prima facie case for

grant of interim injunction against receiving

maintenance granted in a matrimonial proceeding,

notwithstanding all other circumstances, should have

been necessarily considered in the light of the

undisputed fact that the respondents' earlier application

under Order XXXVIII Rule 5 of CPC is rejected, and this

regrettably, is not considered by the civil Court.

11. It is trite that an application for temporary

injunction under Order XXXIX Rule 1 and 2 of CPC

must necessarily be tested not just on the scale of prima

facie case but also on the scale of balance of

convenience and irreparable hardship. The respondents,

in filing their application for injunction against the

appellant withdrawing the interim maintenance/arrears

[or other amount], propose to impede receipt of amount

- 10 -

granted by the concerned Family Court in matrimonial

proceedings for her maintenance. This should

necessarily be weighed against the respondents' claim

for professional fee and this has not been done. The

respondents have failed to establish prima face, balance

of convenience and irreparable hardship, and the civil

Court has also failed to consider these circumstances.

As such, the impugned order cannot be sustained. This

Court, for the aforesaid reasons, is of the considered

view that the appellant must succeed, and the

impugned order must yield. Hence the following:

ORDER

The appeal is allowed. The impugned

order dated 23.12.2021 in O.S.No.4881/2021

on the file of the LXIX Additional City Civil and

Sessions Judge, Bengaluru is set-aside

SD/-

JUDGE SA Ct:sr