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I IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTIETH DAY OF NOVEIUBER TWO THOUSAND AND TWENTY ONE PRESENT THE HONOURABLE SRI JUSTICE UJJAL BHUYAN ctvtLREVISION PETITION NO: 1619 oF 2021 Petition under Arlicle 227 of constitution of lndia, aggrieved by the order dated osl08l21 in lA No.964/2020 in os No.298 of 2o2o on the file of the court of the ilt Additional Chief Judge, City Civil Court, Hyderabad.
Between:
1. ANIL GOYAL, Son of Javanthital Goval Aoed about 53 years Occupation.
Business Resident of Flat No. 302, Tirumala dardens, Road No,1 , Banjara Hills, Hyderabad.
2. soNALl GOYAL, wife of Anil Goyal Aged about 49 years occupation. Business Resident of Flat No. 302, TirlmalS Gardens, Road No..1 , Banjara Hills, Hyderabad.
3. DEVARATH GOYAL, son of Anir Goyar Aged about 26 vears, occuoation.
Business Resident of Frat No. 302, Tirumala Gardens. Road No.1 , Banlari Hills, Hyderabad.
...PET|T|ONERS AND Sanjay Gupta, Son of,l.ate Ramkrishen Gupta, Aged about 57 years, Occupation.
Business, Resident of Flat No. 101 , H.no. 8-2-580, Road No. 8i Banjara Hilis, Hyderabad 500034.
...RESPONDENT lA NO: 1 oF 2021 Petition under section 151 of cPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to suspend the operation/effect of the order passed by the lll Additional chief Judge, city civil court at Hyderabad in l.A. No. 964 of 2020 in O.S. No. 298 ol 2020, dated O5lOBl2O21 For the Petitioners : SRI ZEESHAN ADNAN MAHMOOD, Advocate For the Respondent : SRI RAVI SHANKAR JANDHYALA, SENTOR COUNSEL FOR SRI K.CHENCHURAMI REDDY, Advocate The Court made the following: ORDER J THE H )N,BLE SRI JUSTICE UJJAL BHIIYAN C.R.P.No.1619 OF 2O2L ORDER:
Heard lear: Led counsel for the parties.
2 By filing tl Ls petition under Article 227 of the Constitution of India, petitioners have challenged legality and validity of the order dated 05.8.2021 :assed by the III Additional Chief Judge, City Civil Court at Hyderal ad in I.A.No.964 of 2O2O in O.S.No.298 of 2O2O.
3 By the afo 'esaid order dated 05.8.2021, learned Court below has directed th: petitioners to furnish security for a sum of Rs.50,00,000-00 on or before 31.a.2021, failing which it has been clarified that at achment of property at Sl.No.3 of the schedule would be orderer .
4 Petitioners are the defendants in the suit filed by the respondent as tl e plaintiff i.e. O.S.No.29B of 2020. The suit has been filed for a ecree directing the defendants (petitioners herein)
r to jointly and ;everally pay an amount of Rs.3,00,00,000-00 towards marriag : expenses, dowry, incidental expenses, damage to the reputation a rd goodwill of the family of the plaintiff as well as to award interes on the decretal amount from the date of filing of the suit till the d rte of realization.
5 Plaintiff (rt spondent herein) has stated in the plaint that his family and the fa nily of his late brother - Raj Kumar Gupta formed a joint family. A iter the death of his brother Raj Kumar Gupta on IO.7 .2OO9 , he is discharging the role and dutres ol kartha of the joint family. As the kartha, he had looked after and bore the "1 expenses of the marriage of his later brother,s daughter _ Desika Gupta @ Desika Goel.
Through family friends a proposal was received for marriage of defendant No.3 who is the son of defendant Nos.1 and 2 with Desika Gupta. Finally the marriage was solemnized on
1.t.12.2019.
7 According to the plaintiff, defendants insisted that the marriage should be perlormed at a five-star hotel. Not only that, all the pre-marriage ceremonies should also be performed at five- star hotels. Accordingly one such ceremony was held at ITC Kakatiya hotel, Begumpet, Hyderaba d,, on 22,2.2019. The marriage was also performed at Taj Deccan, Banjara Hills, Hyderabad. In the meanwhile, on the pressure exerted by the defendants, plaintiff had to pay Rs.3,50,000-0O on 25.9.2020 as the first installment of membership of defendant No.3 in the prestigious Secunderabad club. Defendant No.2 also demanded Rs.25,OO,0OO-OO so that she could offer gifts to the guests during the marriage celebrations. Plaintiff was compelled to pay the said amount as he was under the belief that the sarne was necessary for the happiness of Desika. 8 During the marriage ceremony, defendants demanded jewelery in the form of silver coins, gold ornaments as well as diamond ornaments which were highly expensive. plaintiff had to succumb to such demands of the defendants keeping in mind the wellbeing and marital happiness of his niece.
9 Post marriage, the relationship between Desika and defendant No.3 deteriorated to such an extent that cohabitation between them be :ame an impossibility. Though they had gone for /
holiday, there ras no consummation. On the other hand, defendant No.3 r aused physical as well as mental harassment of Desika. in addi ion, further demand of dowry was made. After subjecting Desikz and plaintiff to severe harassment, an amount of Rs.50,00,000-00 was extracted from the plaintiff. plaintifl had to arrange the afor, said amount in cash by borrorving from private sources at very I igh interest rate. Other demands were raised as well including gi t of a car. It is in such circumstances that the suit was filed. I has been mentioned that defendant No.3 holds a Canadian passpc -t and it is apprehended that if he faces a difficult situation he may abscond from the jurisdiction of the trial Court.
10 Defendantr have filed a common written statement denying the above allega'ions. It is stated that the allegations made are false and baseler s. On the contrary, it was the plaintiff and his family members sho had played fraud on the defendants, u.hereby they got Desika married to defendant No.3. Several allegations have been made, whereafter it is stated that cohabitation between defendant No.3 ind Desika is no longer possible and therefore defendant No.3 ras filed a petition for annulment of marriage which has beer registered as O.p.No. llgO of 2020. It is contended that he said divorce petition is pending before the Additional Famil. Judge, Ciry CiVil Court, Hyderabad. With a view to circumvent th: proceedings of the aforesaid case that the suit has been institut :d by the plaintiff.
Therefore, she lodged complaint before the police which has been registered as FIR No 5 19 of 2O2O before the Women's Police Station, Hyderabad. When the petitioners sought for quashing of the said FIR by filing Criminal Petition No 5017 of 2O2O before this Court, the Same was disposed of on 14. lo .2o2o by directing the police to follow the procedure laid down under Section 41A of the Code of Criminal Procedure, 1973 (Cr'P'C) as well as the guidelines laid by the Supreme Court in Arnesh Kumar Vs' State of Biharl' with a further direction to the police not to arrest defendant No'3 as well as his parents till completion of the investigation'
12 Contending that a1l the allegations made by the plaintiff are false and baseiess, defendants have sought for dismissal of the suit.
13 Plaintiff Iiled an Interlocutory Application under Order 38 Rule5oftheCodeofCivilProcedure,lgo8(CPC)forattachmentof judgment Plaintiff furnished a schedule of property before lt immovable properties belonging to the defendants was stated that defendants are highly affluent people' Defendant No'3 is a Canadian passport holder and is likely to abscond from the jurisdiction of the Court if adverse order is passed' Defendants were also 1ikely to dispose of the properties to avoid paying any amount to the plaintiff. Defendants were in the process of creating third party rights and interest in the immovable properties and in the event of the suit being decreed in favour of the plaintiff' there is every possibility of the defendants avoiding and evading payment'
' (20t4) 8 scc 273 /.' The said Interl, ,cutory Application was registered as LA.No.964 of
2020.
Defendan : No.l filed counter affidavit to the said I.A for and on behalf of t re other defendants as well. While denying all contentions of the plaintiff, it r.vas stated that there was no question of de tndants disposing of any of their immoveable property, there not being a single shred of evidence filed by the plaintiff to subr tantiate that he had ever paid Rs.50,OO,O0O/_ as dowry or purchr sed Mini Cooper car. Therefore, defendants sought dismissal of the t.A.
15 By the or ler dated OS.g.2O2l, learned Court below partly allowed the I.A by directing petitioners (defendants) to furnish security for a I um of Rs.S0,00,000_OO on or before 31.g.202
1 failing which at achment of immovable properfy as per schedule would be orderer
16 It is this , ,rder which is under impugnment in the present proceedings
77 Learned cc unsel for the petitioners submits that the plaintiff failed to fulfi11 he pre-conditions for invocation of jurisdiction under Order 38 l lule 5 CPC. In the absence of any iota of evidence regarding dema: Ld and payment of dowry as well as related amounts, order br lurnishing security is not justified. Further, learned Court b ,low was not justified in passing the impunged /.., order as what v as alleged was demand and payrnent of dowry which is nothinl ; but an illegal transaction, apart from being unaccounted, It:
s a settled proposition that Court would not come to the aid of a person who had made illegal transaction' In this has been made to the decision of the connection, reference Court in G'Pankajakshi Amma Vs' Mathai Mathew2'
Supreme Reiiancehasalsobeenp.IacedonaSupremeCourtdecisionin Ramaa Tech. & Process Engg' Co' Vs' Solanki Traders3' Finally he submits that learned Court below had completely misdirected itself while passing the impugned order'
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18 On the other hand, learned counsel for the respondent order' To buttress his plaintiff has supported the impugned contentions, he has placed reliance on the following decisions' i. Mamidala Suresh Babu Vs' Tirumalasetti Kdshnamurthya'
ii. Rajeadran Vs' Shankar Sundarams' and iii. Y.Kesavulu Vs' T' Kalavathi6 of the above' he seeks dismissal of the
18.1 On the strength revision Petition.
lbr the parties have
19 Submissions made by learned counsel received the due consideration of the Court'
judgment'
20 Order 38 deals with arrest and attachment before Rule 5 deals with a situation where the defendant may be called upon to furnish security for production of property Since Rule 5 is relevant the same is extracted hereunder' E ulhere defetrdant may be caued uPon to irr"i"-i for production of property'-
""""trtv rit where at any slage o[ a suit the Court is satisfied'
1,,i.#"", fiu, ,t rlerendanr. with inrent to l :,' iJ l """f,f0i.;1:,;ii ""J, .r"v'irt' execulion " o f a,.v decree thal mav be passed against him, /
' (2004) t2 scc 83 ' (2008) 2 scc ao2 40:
sic onr-in. Andhra Pradesh ')-ooo t (2ooat z scc l2a
{a) is about to dispose of the whole or any part of his prc )erty, or {b) is about to remove the whole or any part of his pro ,erty from the local limits of tfre jurisaiciion J ifrJ Cot rt, the Court may direct the delendant, *itni., a tirD.io be; xed by it, either to furnish security, in l: ipecified.ln-rhe order, to produ.e a" n" d"f , p " lau c- e " a", r" " thv - orsl rsat ot the Coufl. when required. the satd properry or valu:.ol lhe or sul-h po ron rher.of as'may b.
sl:hu.l:l. crent Lo salis-fs) a tm hee . d ccrFe. or ro dppear and show caus(
wh\ he should not furnlsh securrrv l?l The plaintiff shall. r.rnless lhe courr orherwrsc dlre ts. speclfy the properry requtrFd to be arrach.d aia rhe estr lated value Lhereof.
(31 Ttre Court may also in the order direcr rhe con, rlronal attachment of the whole or any ponion of Ihe prol :rty so specifled.
(4) If an order ol attachment is rdade without c so um cl r aly ti tn ag c hw mi eth n tt h she a p ll r bo ev i vs oio idn .s of sub-rule 1ty oi ttris rute
21 From the above, what is evident is that as per sub-rule (1), where at any s :age of a suit the Court is satisfied by affidavit or otherwise that _he delendant with an intent to obstruct or delay the execution ( f any decree that may be passed against him is about to dispos , of whole or any part of his property or is about to remove the who e or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant either to furnisl security, to produce and place at the disposal of the court, the said property or the value of the same or such portion thereof 1s may be sufficient to satisfy the decree or to appear and shoi, cause why he should not furnish securitv.
22 Thus, as rer sub-rule ( 1) the first requirement is that the Court must be ;atisfied either by affidavit or otherwise that the defendant is abc ut to dispose of whole or any part of his property or is about to rer love the whole or any part of his propert5r from the local iimits of t-re jurisdiction of the court ,a,ith an intent to obstruct or r dela execution of any decree that may be passed against him. If s rch satisfaction is reached, then Court mav direct the defendant either to furnish security or to produce the property or to appear and show cause why he should not furnish security'
2g As per sub-rule (4), if an order of attachment is made without complying with the provisions of sub-rule (1)' such attachment shall be void.
24 Though learned counsel for the petitioners has referred to Amma (supra) to buttress the point that G.Pankaiakshi unaccounted transactions are illegal transactions and that no Courtcancometotheaidofapartyinaniilegaltransaction,the said decision was passed in the context of a money suit and is not in a case where plaintiff alleged payment on account of dowry demandwhichitselfisillegalandunlawful.However,without commenting on the merit of the case, it cannot be denied that demand and payment of dowry is an Indian reality Such pernicious practice continues in various forms despite enactment of the Dowry Prohibition Act, 196 1 . This uglY realirY cannot be simply brushed aside or swept under the carpet'
23However,inRamanTech'&ProcessEngg(supra)Supreme Court examined the contours of Order 38 Rule 5 and held as follows:
4. The obiecr of supplemental proceedings lapp
