Sri Muniswamy vs Smt Yashodamma
2023 Latest Caselaw 6552 Kant

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                                                       NC: 2023:KHC:33658
                                                    RSA No. 1080 of 2022




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 15TH DAY OF SEPTEMBER, 2023

                                           BEFORE

                           THE HON'BLE MR JUSTICE H.P.SANDESH

                   REGULAR SECOND APPEAL NO. 1080 OF 2022 (RES)

                   BETWEEN:

                   1.    SRI MUNISWAMY
                         S/O LATE TOLACHANAIKA
                         AGED ABOUT 66 YEARS
                         PRESENTLY, R/O. KPTCL (TLM), SIRA,
                         TUMAKURU DISTRICT-572 137.
                                                               ...APPELLANT
                            (BY SRI JNANESH KUMAR K., ADVOCATE)
                   AND:

                   1.    SMT. YASHODAMMA
                         W/O SRI MUNISWAMY
                         D/O LATE THODACHANAILA,
                         AGED ABOUT 65 YEARS,
Digitally signed
by SHARANYA T            R/O. ERALAGERE VILLAGE
Location: HIGH           KASABA HOBLI, TIPTUR TALUK
COURT OF                 TUMAKURU DISTRICT-572 201.
KARNATAKA
                                                              ...RESPONDENT
                            (BY SRI VINAYA KEERTHY M., ADVOCATE)
                        THIS RSA IS FILED UNDER SEC.100 OF CPC,
                   AGAINST    THE JUDGMENT      AND   DECREE DATED
                   12.04.2022 PASSED IN R.A.NO.19/2017 ON THE FILE OF
                   THE SENIOR CIVIL JUDGE AND JMFC, TIPTUR,
                   DISMISSING THE APPEAL AND CONFIRMING THE
                   JUDGMENT AND DECREE DATED 21.03.2017 PASSED IN
                   O.S.NO.367/2012 ON THE FILE OF THE PRINCIPAL CIVIL
                   JUDGE AND JMFC, TIPTUR.
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                                             NC: 2023:KHC:33658
                                          RSA No. 1080 of 2022




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

Heard the learned counsel for appellant and also the

counsel for respondent.

2. This appeal is filed challenging the judgment and

decree passed in O.S.No.367/2012 wherein monthly

maintenance amount of Rs.5,000/- was granted in favour of

plaintiff and the same is also challenged before the appellate

Court in RA No.19/2017. The First Appellate Court having

reconsidering the material available on record, confirmed the

judgment of the Trial Court.

3. Being aggrieved by the said order, the present

second appeal is filed before this Court. The counsel appearing

for the appellant would vehemently contend that maintenance

of Rs.5,000/- was awarded in M.C.No.55/2014 and also submits

that same is also challenged by filing a Writ Petition before this

Court.

4. Both the Courts have fail to take note of the

material available on record and committed an error in

awarding an amount of Rs.5,000/- and the appellant is paying

every month Rs.5,000/- to the respondent as ordered by this

NC: 2023:KHC:33658 RSA No. 1080 of 2022

Court in W.P.No.8382/2022 and such amount is sufficient for

livelihood of respondent. The orders passed by the Trial Court

as well as the First Appellate Court is against the material

available on record. Hence, the counsel prayed this Court to

frame a substantive question of law as whether both the Courts

below have justified in decreeing the suit for maintenance of

Rs.5,000/- per month was seriously disputed by the defendant

and the said order is passed without application of mind.

Hence, this Court has to admit and frame substantial question

of law.

5. The counsel appearing for the respondent would

submits that the maintenance is awarded is only for an amount

Rs.5,000/- and considering the cost of living and standard of

living it is highly impossible to maintain with an amount of

Rs.5,000/- and also even though an order has been passed in

M.C petition, the same is not paid and also filed writ petition

before this Court and not paid the regular maintenance. The

grounds urged before this Court are also amounts to frame any

substantial question of law and the same is fact finding. Hence,

no grounds are made by the counsel for appellant to to frame

any substantial question of law.

NC: 2023:KHC:33658 RSA No. 1080 of 2022

6. Having heard the appellant's counsel and also the

counsel appearing for the respondent, the suit is filed for the

relief of maintenance. The Trial Court by taking into note of the

relationship which is not disputed by both the parties and also

considering that the appellant is a retired employee in KPTCL

and also taken note of Ex.P2 which discloses that the defendant

is having gross salary of Rs.37,751/- in the year 2002 and take

home salary of Rs.39,895/-. Now he has been retired and

getting pension and the counsel is also not disputed the fact

that he is getting the pension, when such being the case, both

the Courts have given fact finding with regard to awarding of

maintenance of Rs.5,000/- and the appellate Court comes to

the conclusion that the same is not a higher side and also the

judgment does not suffers from any perversity, when such fact

finding is given by both the Trial Court as well as the First

Appellate Court, I do not find any ground to admit the appeal

and to frame any substantial question of law. The very

substantial question of law raised by the appellant's counsel

that both the Courts have not justified in granting the award of

Rs.5,000/- as maintenance and the same cannot be accepted.

Having considered the standard of living and cost of living,is

NC: 2023:KHC:33658 RSA No. 1080 of 2022

not a higher side. Hence, I do not find any ground to admit the

appeal and frame any substantial question of law by invoking

Section 100 of CPC.

7. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

RHS