Karnataka High Court

Sri Revanna vs Smt K S Sathyabhama on 30 August, 2023

Bench: K.Natarajan

                                                    -1-
                                                                NC: 2023:KHC:31308
                                                             RFA No. 1005 of 2018




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                DATED THIS THE 30TH DAY OF AUGUST, 2023
                                                   BEFORE
                                  THE HON'BLE MR JUSTICE K.NATARAJAN
                              REGULAR FIRST APPEAL NO. 1005 OF 2018 (INJ)
                       BETWEEN:

                       1.   SRI REVANNA
                            S/O SRI BORAIAH,
                            AGED ABOUT 69 YEARS,
                            R/AT NO.6, 5TH MAIN,
                            1ST CROSS,
                            NANJANAMBA AGRAHRA,
                            CHAMARAJPET,
                            BENGALURU - 560 018.
                                                                         ...APPELLANT
                       (BY SRI. G.B. NANDISH GOWDA, ADVOCATE)
                       AND:

                       1.   SMT K.S.SATHYABHAMA
                            W/O SRI REVANNA,
                            AGED ABOUT 59 YEARS

                       2.   SRI R GURURAJ
Digitally signed by
SHOBHA C
                            S/O SRI REVANNA,
Location: High Court        AGED ABOUT 37 YEARS
of Karnataka

                            BOTH ARE R/AT NO.3,
                            GROUND FLOOR,
                            6TH CROSS, AZADNAGAR,
                            CHAMARAJPET,
                            BENGALURU - 560 018.
                                                                       ...RESPONDENTS
                       (BY SRI. C PRAKASH, ADVOCATE FOR C/R1 AND R2)
                            THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
                       THE JUDGMENT AND DECREE DATED 24.04.2018 PASSED IN
                       O.S.NO.5101/2013 ON THE FILE OF THE XLIV ADDITIONAL CITY AND
                       SESSIONS JUDGE, BENGALURU DECREEING THE SUIT FOR
                       PERMANENT INJUNCTION.
                                    -2-
                                                NC: 2023:KHC:31308
                                           RFA No. 1005 of 2018




     THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                           JUDGMENT

This appeal is filed by the appellant under Section 96 of

C.P.C. for setting aside the judgment and decree dated

24.04.2018 passed by the XLIV Additional City Civil and

Sessions Judge, Bengaluru, in O.S. No.5101/2013.

2. Heard the arguments of learned counsel for the

appellant and the learned counsel for respondents.

3. The appellant was the defendant and the respondents

were the plaintiffs before the trial Court. The ranking of the

parties before the trial Court is retained for the sake of

convenience.

4. The case of plaintiffs before the trial Court is that

plaintiff No.1 is wife of the defendant and plaintiff No.2 is their

son. The property bearing No.3, 6th Cross, Azad Nagar,

Chamarajpet, Bengaluru, is measuring 20 ft. x 60 ft.

(hereinafter referred to as 'suit schedule property') consisting

of ground floor and first floor with two portions each. The

plaintiffs are residing in a portion on the ground floor of the suit

schedule property and the other portions of the suit schedule

NC: 2023:KHC:31308 RFA No. 1005 of 2018

property have been occupied by the tenants. The suit schedule

property belonged to the mother of the defendant, who

executed gift deed in favour of the defendant on 03.09.2004

and khatha of the said property was transferred in the name of

defendant. The defendant has collected the lease amount of

Rs.1,40,000/-. The plaintiffs filed a petition in Criminal

Miscellaneous No.104/2015 for maintenance and separate

residence under the provisions of Protection of Women from

Domestic Violence Act, 2005 (hereinafter referred to as 'DV

Act'). It was their contention that the defendant said to be

running auto rickshaw and gets substantial income from hiring

the same. The plaintiff No.1 and defendant relationship was

strained. It was also their contention that the defendant tried

to alienate the suit schedule property in favour of the 3rd

parties. Though, at the initial stage, plaintiff No.1 and

defendant were having the cordial relationship as husband and

wife, but later, it was strained due to intimacy of the defendant

with one Sannamma @ Shashikala. Therefore, plaintiff No.1

sought for permanent injunction not to alienate the suit

schedule property.

NC: 2023:KHC:31308 RFA No. 1005 of 2018

5. In pursuance of notice, the defendant appeared before

the Court and admitted relationship between plaintiff No.1 and

himself. However, it was contended that the plaintiffs were not

entitled for any relief of share in the suit schedule property,

which was the self-acquired property of defendant, and denied

the other averments made in the plaint. It was specifically

contended that the defendant has not alienated the suit

schedule property in favour of the third persons. It was also

contended that there was no cause of action to file the suit and

accordingly, prayed for dismissing the suit.

6. Based upon the pleadings, the trial Court framed the

following issues:

1. Whether the plaintiffs prove their possession over the suit property on the date of suit?

2. Whether the plaintiffs prove that the 1st defendant has illegal connection with another woman by name Sannamma and neglected the plaintiffs and making attempts to alienate the suit schedule property to cause prejudicial to the right and interest of the plaintiffs over the suit property?

NC: 2023:KHC:31308 RFA No. 1005 of 2018

3. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for?

4. What order or decree?

7. Plaintiff No.1 examined herself as P.W.1 and got

marked 7 documents as per Exs.P.1 to P.7. The defendant

examined himself as D.W.1 and no documents were marked.

After hearing the arguments of learned counsel for the parties,

the trial Court answered issue Nos.1 and 2 partly in the

affirmative and issue No.3 in the affirmative in favour of the

plaintiffs and decreed the suit by directing the defendant not to

alienate or create any 3rd party interest in respect of the suit

schedule property, without due process of law. Being

aggrieved by the order of the trial Court, the appellant-

defendant has filed this appeal.

8. Learned counsel for the appellant has contended that

the appellant has undertaken in the evidence that he will not

alienate the suit schedule property, and in spite of the same,

the trial Court decreed the same, which is not correct.

Further, it is contended that the respondents-plaintiffs have

already filed a petition before the Magistrate under the

NC: 2023:KHC:31308 RFA No. 1005 of 2018

provisions of DV Act and as per Section 41(h) of Specific Relief

Act, there is efficacious remedy available to the plaintiffs before

the appropriate Forum. Therefore, the suit for injunction is not

maintainable before the Civil Court. It is further contended

that the suit schedule property has been mortgaged by the

mother of the defendant for 10 years. Previously, the tenants

were residing in the said house and there was strained

relationship between them. Taking advantage of the same, the

suit was filed by the plaintiffs. The trial Court without

considering the provisions of Section 41(h) of the Specific Relief

Act, has decreed the suit and same is to be set aside.

9. Per contra, learned counsel for the respondents-

plaintiffs has supported the judgment and decree passed by the

trial Court and contended that the trial Court considering

Section 26 of DV Act held that plaintiff No.1 being the wife of

defendant is also entitled to file suit before the civil Court

seeking the relief of share and she is entitled to reside in the

house. Based upon the decree passed by the Civil Court, the

Magistrate also dismissed the miscellaneous petition holding

that plaintiff No.1 has already obtained the decree before the

civil Court. Therefore, Section 41(h) of Specific Relief Act is not

NC: 2023:KHC:31308 RFA No. 1005 of 2018

applicable and it is exception to the said Rule as per Section 26

of DV Act and prayed for dismissal of the appeal.

10. Upon hearing the arguments of learned counsel for

the parties, the points that arise for consideration in this appeal

are :

1. Whether the suit filed by the plaintiffs is not maintainable in view of Section 41(h) of Specific Relief Act ?

2. Whether the judgment of the trial Court calls for interference ?

11. It is an admitted fact that plaintiff No.1 is the wife of

defendant and plaintiff No.2 is their son. Both of them were

residing in the ground floor and presently, the defendant is not

residing in the house. There were other houses occupied by

the lessees under the lease agreement between the lessees and

defendant. The defendant said to be received the lease

amount. It is also found in the evidence of P.W.1 that the

property belonged to the mother of the defendant and the suit

schedule property was gifted by mother in favour of the

defendant. Prior to that, the mother of the defendant obtained

loan from the co-operative bank. Finally, the sister of the

NC: 2023:KHC:31308 RFA No. 1005 of 2018

defendant discharged the loan amount for her mother under

mortgage deed for 10 years. It is also not in dispute that there

was strained relationship between plaintiff No.1 and defendant

and the plaintiffs are residing in a portion of the residence. In

view Section 2 of DV Act, the plaintiff is entitled for a share in

the said house. She also filed a criminal miscellaneous petition

No.104/2015 and the said petition was dismissed. The

documents produced by P.W.1 are the admitted documents.

P.W.1 admitted in the cross examination that the suit schedule

property was gifted by mother of defendant in favour of her

husband i.e., the defendant, and she has also seen the gift

deed. A suggestion was made that the plaintiffs have made

false allegation that the suit schedule property was selling by

the defendant. The defendant in his cross examination at page

No.85 has stated that he never thought of selling the suit

schedule property.

12. Perusal of the entire evidence on record, of course,

the defendant has undertaken that he will not alienate the suit

schedule property. There is strained relationship between the

parties and therefore, there is possibility of the defendant

selling the property in future. The trial Court has further

NC: 2023:KHC:31308 RFA No. 1005 of 2018

observed that the respondents-plaintiffs have efficacious

remedy in their favour before the Magistrate/Civil Court. In

this regard, the trial Court has relied upon Section 26 of DV

Act. The learned counsel for respondent has also relied upon

the said provision i.e. Section 26 of DV Act, wherein it is held

as under:

Section 26 of DV Act: Relief in other suits and legal proceedings (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

13. Bare reading of the aforesaid provision, it clearly

provides a woman for filing a suit and get the relief rather than

a petition filed under the DV Act. Therefore, non obstante

clause is made in Section 26 of DV Act by giving liberty to the

- 10 -

NC: 2023:KHC:31308 RFA No. 1005 of 2018

woman to file a suit before any Civil Court seeking appropriate

relief. Further the contention of the appellant's counsel that

the efficacious remedy is available and the suit is barred, is not

acceptable.

14. The trial Court has held that there was strained

relationship between plaintiff No.1 and the defendant. Of