MFA7997-11-09-02-2015.Pdf

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 09 TH DAY OF FEBRUARY, 2015

BEFORE

THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA

M.F.A. NO.7997/2011(CPC)

BETWEEN :

1. SMT. RADHAMMA W/O LATE RAMA SHASTRY AGED ABOUT 51 YEARS

2. VASANTHA KUMAR S/O LATE RAMA SHASTRY AGED ABOUT 32 YEARS

BOTH R/AT IN THE PREMISES OF SRI KALIKA DURGA PARAMESHWARI TEMPLE VIDYARANYAPURA, THINDLU BANGALORE-560097

... APPELLANTS

(By Sri: R L PATIL, SR. ADV.)

AND:

1. SRI KALIKA DURGA PARAMASHWARI TEMPLE TRUST, A PUBLIC TRUST HAVING ITS OFFICE AT THE PREMISES OF SRI KALIKA DURGA PARAMESHWARI TEMPLE, VIDYARANYAPURA THINDLU, BANGALORE-97, 2

R/BY ITS MANAGING TRUSTEE, R VINAYA KUMAR

2. VINAYA KUMAR S/O LATE RAMA SHASTRY AGED ABOUT 27 YEARS

3. SMT SANDHYA W/O VINAYA KUMAR AGED ABOUT 28 YEARS

RESPONDENT NO, 2 AND 3 R/AT SRI KALIKA DURGA PARAMESHWARI TEMPLE, DURGA DEVI LAYOUT VIDYARANAYAPURA, THINDLU BANGALORE-560097

4. SRI HANUMANTHA GOWDA S/O LATE S MUNIYAPPA AGED ABOUT 58 YEARS NO.140, B COLONY, NAGASHETTYHALLI RMV II STAGE, BANGALORE-560094

5. SRI G DAYANAND S/O T GIRIYAPPA AGED ABOUT 43 YEARS NO.42, 8TH MAIN, 16TH CROSS MALLESWARAM BANGALORE-560003

6. SRI H S SOMASHEKAR S/O LATE H SHIVANNA AGED ABOUT 60 YEARS NO.971, 11TH B MAIN ROAD III BLOCK, RAJAJINAGAR BANGALORE-560010

7. SRI RAVI KUMAR 3

S/O CHIKKA MUNIYAPPA AGED ABOUT 43 YEARS NO.5, 10TH A CROSS, MUNESH KUMAR NILAYA, JAKKUR VILLAGE, JAKKUR POST BANGALORE-560064

8. SRI D SRINIVASAMURTHY S/O LATE PATEL DODDA HUCHE GOWDA R/AT PATELS NO.59 BHEL OFFICERS COLONY NANDINI LAYOUT BANGALORE-560096

9. T N ASWATHANARAYAN GOWDA S/O NANJUNDAPPA ANJINEYA BADAVANE, THINDLU VIDYARANYAPURA POST BANGALORE-560097

10. T N NARASIMHA MURTHY GOWDA S/O NANJUNDAPPA AGED ABOUT 54 YEARS R/AT NO.1, MARUTHI NILAYA II CROSS,LAKESHORE GARDENS THINDLU, VIDYARANYAPURA POST BANGALORE-560097

11. T N NARAYANASWAMY GOWDA S/O NANJUNDAPPA AGED ABOUT 47 YEARS SIDDHALINGESHWARA BADAVANE THHINDLU, VIDYARANYAPURA POST BANGALORE-5600097

12. T V KRISHNAMURTHY S/O LATE VEERAN GOWDA AGED ABOUT 62 YEARS NO.37, 16TH CROSS, N G BLOCK FIVE TEMPLE ROAD, MALLESWARAM 4

BANGALORE-560003

13. SMT SAROJJAMMA D/O RAMANNA AGED ABOUT 62 YEARS R/AT NO.43, SAPTHAGIRI LAYOUT VIDYARANYAPURA POST BANGALORE-560097

14. B R MANJUNATHA S/O RAMAIAH AGED ABOUT 40 YEARS R/AT D NO.144, SRI RAMA NILAYA BYTARAYANAPURA BELLARY ROAD BANGALORE-560092

15. SRI GUDAPPA S/O LAXMINARASIMHAIAH AGED ABOUT 48 YEARS R./O DUGADEVI LAYOUT THINDLU, VIDYARANYAPURA BANGALORE-560097

... RESPONDENTS

(By Sri: SHANTESH GUREDDI, ADV. FOR R9-12 SRI; M.S.PATIL, ADV FOR R14 & R15, NOTICE TO R1,R2,R3 TO R8 & R13, R15 ARE SERVED)

MFA FILED U/S 104 OF CPC, R/W ORDER 43 OF CPC, AGAINST THE ORDER DT.04.08.2011 PASSED IN MISC.NO.269/2009 ON THE FILE OF THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, REJECTION THE PETITION FILED U/S 92 OF CPC.

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

JUDGMENT

Heard the learned Senior counsel for the appellants.

2. The present appeal is filed challenging the order dated 4.8.2011 passed by the Court of Principal

City Civil and Sessions Judge, Bangalore in

Misc.No.269/2009.

3. The learned Senior Counsel Sri.R.L.Patil submits that certain observations have been made by the learned Sessions Judge against the petitioner

No.2/appellant No.2 herein in paragraph No.9 at pages

21 and 22 in the impugned order dated 4.8.2011 passed in Misc.No.269/2009. Certain observations made by the learned Judge in the impugned order casts aspersions on the character of the appellant No.2. He has argued that such observation was unwarranted when no evidence or enquiry is held in regard to the 6

serious allegation. Hence it was not incumbent on the learned Judge to have made certain observations which impute serious allegation against the appellant No.2.

Hence, the said observation made by the learned Judge in the impugned order needs to be expunged.

4. Admittedly, the petition was filed under 92 of

CPC seeking leave of the Court to file a scheme suit.

While rejecting the said petition, the learned Judge has made certain observations about the affairs that the appellant No.2 had allegedly with one lady. Certain observations made by the learned Judge in the impugned order casts serious aspersions on the character of the appellant No.2. The learned senior counsel has brought to the notice of this Court the observation made by the learned Judge in paragraph 9 pages 21 and 22 of the impugned order which reflect serious allegation against appellant No.2. The same reads as follows: 7

“9………………………. So far as the petitioner No.2 is concerned, who is none other than the brother of respondent No.2 and the son of petitioner No.1, the documents produced by the respondent, clearly goes to show that he has not maintained morality and he had contacts with one lady Ashwathamma who ultimately filed the matrimonial case before the family court for restitution of conjugal rights which was allowed before the family court and subsequently the petitioner No.2 filed Miscellaneour petition seeking setting aside the decree passed in the matrimonial case. The respondents have also produced one letter addressed by the petitioner No.2 about his affairs with Ashwathamma and the trouble given by said Ashwathamma to petitioner No.2. When such material has been produced in respect of petitioner No.2, it prima facie goes to show that he is not proper person to manage the affairs of the trust.”

5. As rightly pointed out by the learned Senior counsel, such observation could not have been made without holding an enquiry about the alleged allegation. 8

If they continue to remain on records, as rightly pointed by the learned senior counsel for appellants, would casts serious repercussion on the character of the appellant No.2 and the portion of paragraph 9 of the impugned order extracted hereinabove needs to be expunged.

ORDER

Appeal is allowed.

Portion of paragraph 9 in pages 21 and 22 of the impugned order dated 4.8.2011 in Misc.No.269/2009 extracted hereinabove stands expunged. All other observations made by the learned Judge in the impugned order remain undisturbed.

There is no order as to costs.

Sd/- JUDGE