K S RAMACHANDRA v. SMT. PADMAVATAMMA

2 OS. NO.215 OF 2017 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE

AND JMFC, SAGAR.

W.P.NO.2148 OF 2022

BETWEEN

K S RAMACHANDRA

S/O LATE K SHANKARANARAYANA BHAT

AGED ABOUT 62 YEARS

R/O KALMANE VILLAGE

AVINAHALLI HOBLI, SAGAR TALUK

SHIVAMOGGA DISTRICT-577 401.

...PETITIONER

(BY SRI HARISH KUMAR M S, ADVOCATE)

AND

SMT. PADMAVATAMMA

W/O LATE K SHANKARANARAYANA BHAT

AGED ABOUT 85 YEARS

R/O MARIKAMBA ROAD SAGAR CITY-577 204

SHIVAMOGGA DISTRICT.

….RESPONDENT

(BY SRI RAJENDRA S, ADVOCATE FOR

SRI S V PRAKASH, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE

CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY

THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC AT SAGAR IN MA

NO.1 OF 2019 DATED 02^ND SEPTEMBER, 2021 VIDE ANNEXURE-J

CONFRMING THE ORDER PASSED ON A. NO.1 IN OS.NO.4 OF 2017

(OLD OS.NO.215 OF 2017) DATED 15^TH DECEMBER, 2017 BY THE

PRINCIPAL CIVIL JUDGE AND JMFC, AT SAGAR VIDE ANNEXURE-E.

THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE

COURT MADE THE FOLLOWING:

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3 ORDER

Writ Petition No.8558 of 2020 is filed by the defendant in OS No.215 of 2017 on the file of Principal Civil Judge JMFC, Sagar, challenging the order dated 03.01.2019 passed on the IA 2 vide Annexure-D.

2. In Writ Petition No.2148 of 2022, the petitioner has challenged the order dated 15.12.2018 passed in OS No.4 of 2017 on IA.1, which came to be confirmed by the Principal Senior Civil Judge and JMFC, Sagar in MA No.1 of 2019 vide order dated 02.9.2021 vide Annexure-J.

3. Brief facts for adjudication of the case are that, the respondent herein has filed suit for recovery of money in OS No.215 of 2017 on the file of the Trial Court and the respondent had taken the contention that there is a partition between and among the joint family members of the petitioner and the respondent herein on 26.08.2016 and as per the terms of the Partition Deed, the petitioner has to supply 6 ½ quintals of red variety of areca nut. In the said suit, the defendant/petitioner herein has filed an application under Order 16 Rule 6 of Code of

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4 Civil Procedure, seeking issuance of summons to the persons listed in the application-IA.2 to produce account details extract from the year 2011 to present date pertaining to the respondent herein. Said application was contested by the respondent and as such, the Trial Court by its order dated 03.01.2019, dismissed IA.2 filed by the petitioner herein and feeling aggrieved by the same, the petitioner has presented Writ Petition No.8558 of 2020. On the other hand, respondent herein has filed an application-IA.I under Order 39 Rule 2 of Code of Civil Procedure in OS No.215 of 2017, seeking temporary injunction against the petitioner herein restraining the defendant/petitioner from violating the terms and conditions of the partition deed dated 26.08.2016 and to pay the maintenance as agreed in the Partition Deed. The said application was resisted by the defendant. The Trial Court, after considering the material on record, by its order dated 15.12.2018 allowed the IA.I filed by the plaintiff under Order 39 Rule 2 of Code of Civil Procedure. Being aggrieved by the same, the defendant/petitioner herein has filed MA No.1 of 2019 before the First Appellate Court, and the said appeal was resisted by the plaintiff. The First Appellate

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5 Court, after appreciating the material on record, by its order dated 02.09.2021, dismissed the appeal and consequently, confirmed the order dated 15.12.2018 passed by the Trial Court on IA.I. Feeling aggrieved by the same, the defendant has presented Writ Petition No.2148 of 2022 before this Court.

4. I have heard Sri Harish Kumar, learned counsel appearing for the petitioner and Sri Rajendra S., learned counsel appearing on behalf of Sri.S.V.Prakash, for the respondent.

5. Sri Harish Kumar, learned counsel appearing for the petitioner contended that the application filed by the respondent in IA.I itself is not maintainable and therefore, the said aspect of the matter was not considered by the both the courts below. He further contended that the suit is filed for recovery of money and not for claiming maintenance by the respondent herein and therefore, the interim relief granted by both the courts below is contrary to law. Accordingly, he sought for interference of this court. In respect of application filed under Order 16 Rule 6 of Code of Civil Procedure, he submitted that, defendant has made an enquiry with the several Banks, in which, the account of the

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6 respondent goes to show that the respondent herein is having sufficient means for livelihood. Therefore, impugned order passed by the Trial Court dismissing the IA.2 is contrary to law.

6. Per contra, Sri Rajendra S., learned counsel appearing for the respondent sought to justify the impugned order passed by the Trial Court.

7. It is not in dispute that the petitioner herein is the son of the respondent. Respondent is aged about 85 years. Perusal of the Annexure- A to the Writ Petition substantiate the fact that there was a partition in the family of the petitioner and respondent as per the Partition Deed dated 26.08.2016, (Annexure-A). It is the case of the plaintiff that the defendant has not complied with the terms and conditions stipulated in the Partition Deed and as such, the plaintiff has filed suit for recovery of money and filed an application under Order 39 Rule 2 of Code of Civil Procedure, seeking interim relief of maintenance. Having considered the finding recorded by the Trial Court, on IA.1, wherein, the Trial Court had taken note of the fact that the defendant has not stated in the objection

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7 statement that he has complied with the terms of the Partition Deed and accordingly, the Trial Court with elaborated discussion on the point relating to Order 39 Rule 2, had granted interim relief as per order dated 15.12.2018, which was confirmed by the First Appellate Court, in MA No.1 of 2019 by its order dated 02.09.2021. Having taken note of the discussion made by the First Appellate Court, after appreciating the finding recorded by the Trial Court, at paragraph 23 of the impugned order, I am of the view that the order passed by the Trial Court on IA.1 just and proper, which does not call for interference in this Writ Petition.

8. However, in Writ Petition No.8558 of 2020,

defendant has filed an application-IA.2 to issue summons to nine Banks situated at Sagar to produce the account extract of the plaintiff and it is obvious that the defendant ought to have known the account number of the plaintiff, in such cases, if it is necessary to issue summons to such banks and it is the contention of the petitioner that, the Trial Court ought to have issued summons under Order 16 Rule 6 of Code of Civil

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8 Procedure. However, perusal of the application-IA.2 and the order passed by the Trial Court on IA.2, I am of the view that the finding recorded by the Trial Court at paragraph 8 of the order dated 03.01.2019, is just and proper and does not call for interference in this Writ Petition. Accordingly, the Writ Petitions are dismissed.

Sd/-

JUDGE

SB

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