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1993 DIGILAW 508 (DEL)

SHANTI v. CHATTER SINGH

1993-09-07

SAT PAL

body1993
Sat Pal, J. ( 1 ) THE present petition has been filed by the petitioner undersection 397 of the Code of Criminal Procedure (hereinafter referred to as the Code) against order dated 20th October, 1989 passed by a learned Additional Sessions Judge, Delhi in Revision Petiton No. 29/89 reversing the order dated 15th March, 1989 passed by a learned M. M. undersection 125of the Code in case No. l59/82 (110/l of 1988 ). ( 2 ) BRIEFLY stated the facts of the case are that the petitioner was married to the respondent in accordance with Hindu Rites. She filed an application under Section 125 of the Code for grant of allowance for maintenance as the respondent who has remarried to one Smt. Gy ano Devi-and was having sufficient means was neglecting and refusing to maintain the petitioner. ( 3 ) THE learned M. M. vide his order dated 21st May, 1986 granted interim maintenance alloance @ Rs. l00. 00 p. m. During the pendency of the proceedings the petitioner moved an application on 13. 11. 86. In this application it was stated that:- "the petitioner and the respondent have arrived at a mutual voluntary compromise between them and the respondent has undertaken to maintain the petition and provide her with all the necessities of life and the petitioner has now full faith in the commitments made by the respondent. " ( 4 ) IN view of these facts it was prayed that the proceedings be dropped. This application came up for hearing before the learned M. M. on 18. 1 1. 86 and the statement of the petitioner and of the respondent on oath was recorded as under :- "as we have compromised the present petition be dismissed as withdrawn. " Thereafter the learned M. M. passed the following order :- "in view of the above statement, as the parties have compromised, the petition is dismissed as withdrawn. File be consigned to record room. " ( 5 ) IT has been alleged by the petitioner that the respondent failed to honour his commitment, undertaking/assurances on the basis of which the proceedings pending before the Ld. M. M. were dropped. Accordingly, on 9th May, 1988 the petitioner made an application before the Ld. M. M. praying therein that the petition bearing No. 159/82 which was dismissed as withdrawn in view of the compromise on 18. 11. M. M. were dropped. Accordingly, on 9th May, 1988 the petitioner made an application before the Ld. M. M. praying therein that the petition bearing No. 159/82 which was dismissed as withdrawn in view of the compromise on 18. 11. 86, be restored and the same be decided on merits. In this application it was also prayed that the respondent bedirected to make the payment of the interim maintenance allowance granted to the petitioner vide order dated 21. 5. 86. This application was opposed by the respondent in his reply dated 3. 11. 88. The learned M. M. vide his order dated 15. 3. 89 revived the orignal petition bearing No. 159/82 to its original stage. By this order the learned M. M. also directed the respondent to pay or deposit the entire arrears of maintenance with effect from the date of passing of the orders of interim maintenance i. e. from 21. 5. 86uptothedate @ Rs. l00. 00 per month and also directed to respondent to pay or deposit future maintenance at this rate month by month regularly. ( 6 ) THE respondent filed Crl. R. bearing No. 29/89 against the order dated 15th March, 1989 passed by the learned M. M. , Delhi. This revision petition was allowed by the Addl. Session Judge vide his judgement dated 20. 10. 89. By this judgement, the learned Addl. Sessions Judge held that "though the learned M. M. took a humane consideration while reviving the petition to its original petition but since such an approach is not a frame work of the Code of Criminal Procedure, the same cannot be sustained and is liable to be reversed. " The present petition has been filed by the petitioner against the judgement dated 20. 10. 89 passed by the learned Addl. Sessions Judge. ( 7 ) MR. Chaudhary, learned counsel appearing on behalf of the petitioner submitted that the findings of the learned Addl. Sessions Judge are based on the assumption that the proedeedings undersection 125 of the Code are of criminal nature and under the provisions of the Code, the Metropolitan Magistrate has no inherent powers to restore the petition whereas in terms of law laid down by the Supreme Court proceedings under Section 125 which is a part of Chapter 9 of the Code are not of criminal nature but primarily of civil nature. He, therefore, contended that the learned Addl. He, therefore, contended that the learned Addl. Sessions Judge erred in holding that the magistrate has no inherernt powers in reviving the petition to its original position. In support of his contention the learned counsel placed reliance on a judgement Of the Supreme Court reported in the case of Smt. Savitri Vs. Govind Singh Rawat, AIR 1986 SC 984 , ajudgement of this Court reported in the case of Sahird Kamra VS Smt. Neeta, 1988 (14) DRJ 282 and ajudgement of Panjab and Haryana High Court reported in the case of Kamla Devi VS. Mehma Singh, 1989 SLJ 331. ( 8 ) LEARNED counsel for the petitioner submitted that the learned Addl. Sessions Judge further erred in holding that the respondent husband had not given any undertaking before the Court or in the application dated 13. 11. 86 to maintain the petitioner and to provide her with basic necessities of life. He submitted that though the application dated 13. 11. 86 did not bear the signatures of the respondent but when the said application came up for hearing before the Metropolitan Magistrate on 18. 11. 86, the joint statement of petitioner and the respondent on oath was recorded before the learned Metropolitan Magistrate and in that statement it was clearly stated that " as we have compromised, the present petition be dismissed as withdrawn. " He, therefore, contended that the application dated 13. 11. 86 read with the joint statement of the petitioner and the respondent clearly show that the petition under Section 125 of the Code was withdrawn by the petitioner in view of the assurance of the respondent mentioned in the application. ( 9 ) LASTLY the learned counsel for the petitioner contended that the proceedings under Section 125 of the Code being of the civil nature, a petition under Section 125 of the Code dismissed as withdrawn in view of the compromise arrived at between the parties, can be restored in case the terms of the compromise are violated by one of the parties. In this connection he placed reliance on the judgement in the case of Suhird Kamra (supra) wherein a learned Single Judge of this Court has held that the petition under Section 125 of the Code dismissed in default can be restored by the Metropolitan Magistrate. ( 10 ) MR. In this connection he placed reliance on the judgement in the case of Suhird Kamra (supra) wherein a learned Single Judge of this Court has held that the petition under Section 125 of the Code dismissed in default can be restored by the Metropolitan Magistrate. ( 10 ) MR. Rana, learned counsel appearing on behalf of the respondent, however, submitted that the order dated 18th November, 1986 by which the learned Metropolitan Magistrate had dismissed the petition filed by the petitioner under Section 125of the Code as withdrawn/was final and the learned Metropolitan Magistrate has no power under the provisions of the code to restore the same. In support of his submissions the learned counsel placed reliance on ajudgement of the Supreme Court reported in the case of Maj. Genl. A. S. Gaurya VS. S. N. Thakur, 30 (1986) Delhi Law Times 211. In this case it was held by the Supreme Court that the dismissal of a complaint for non-appearance of the complainant was a final order and the magistrate has no power to review or to recall such order. ( 11 ) LEARNED counsel further submitted that the judgement in the case of Suhird Kamra (supra) is not applicable to the facts of the present case as in that case the question involved was as to whether a petition dismissed in default could be restored, where as in the present case the point in issue is as to whether the petition dismissed as withdrawn can be restored. ( 12 ) LEARNED counsel for the respondent also submitted that in para 3 of the written statement filed by the respondent before the Learned Metropolitan Magistrate, the respondent had raised the plea that the learned Metropolitan Magistrate had no jurisdiction to adjudicate the petition filed by the petitioner under Section 125 of the Code as the petitioner was not residing in the Union Territory of Delhi, but the point of jurisdiction raised by the respondent has not been decided by the learned Metropolitan Magistrate. ( 13 ) I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the records. In the case of Nand Lal Misra VS. ( 13 ) I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the records. In the case of Nand Lal Misra VS. Kanhaiya Lal Misra, AIR 1960 SC 882 , the Supreme Court held that the relief given under Chapter XXXVI of the old Code of Criminal Procedure (Chapter IX of the present Code of Criminal Procedure) is essentially of civil nature and it prescribes a summary procedure for compelling a man to maintain his wife and children. It was also held in this case that the findings of the magistrate under this Chapter were not final. In the case of Smt. Savitri (supra) the Supreme Court held that the "jurisdiction of the Magistrate under Chapter 9 of the Code is not strictly a criminal jurisdiction. " It was further held in this case that the provisions contained in Chapter 9 were intended to fulfil a social purpose and their object was to compell a man to perform moral obligation which he owes to society in respect of his wife and children. It was further held in this case that "it is a duty of the Court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made undersection 125 of the Code, to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. " Relying on the judgement of the Supreme Court in the case of Smt. Savitri (supra) and another judgement reported in the case Bai Tahira VSAIi Hussain Fissalli Chothia, AIR 1979 SC 362 , a learned Single Judge of this Court in the case of Suhird Kamra (supra) held that "the fact that proceedings under Chapter IX are in the nature of civil proceedings and enacted for providing urgent and effective reliefs, it cannot be said that the magistrate has no power to restore on sufficient cause shown, a petition under Section 125 of the Code which had been dismissed in default. " ( 14 ) IN view of the foregoing it is clear that the jurisdiction of a magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction and the findings of a magistrate under this Chapter are not final. It is further evident that the procedings under this Chapter are in the nature of civil proceedings. Now the question to be considered is as to whether in the civil proceeding in case a petition is dismissed as withdrawn in view of the compromise arrived at between the parties, can such apetition be restored if one of the party to the compromise alleges that the compromise was fraudulent. As stated hereinabove, a learned Single Judge of this Court in the case of Suhird Kamra (supra) has held that acriminal Court while considering a petition under Section 125 of the Code has power to restore the same on its file on sufficient cause being shown in the petition in default in appearance of the petitioner. For the same reasoning I do not find any impediment to the petition which was dismissed as withdrawn in view of the compromise arrived at between the parties, being restored particularly when it has been alleged by the petitioner that the said compromise was arrived at fraudulently. Here I would like to refer to a recent judgement of the Supreme Court reported in the case of banwari Lal VS Chando Devi, 49 (1993) Delhi Law Times 276 (SC ). In this case it was held by the Supreme Court that if the agreement or the compromise itself is fraudulent and in case the Court comes to the conclusion that the compromise was not lawful within meaning of Rule 3 of Order 23 CPC, the court could recall an order dismissing of the suit in terms of compromise. ( 15 ) IT appears that the learned Additional Sessions Judge has proceeded on a wrong assumption that the proceedings under Section 125 of the Code were of criminal nature whereas as discused hereinabove such proceedings in fact are in the nature of civil proceedings. The judgement of the Supreme Court in the case of Maj. Genl. A. S. Gauraya (supra) relied on by the learned Additional Sessions Judge is again not relevant to the facts of the present case as that case pertains to dismissal of the complaint in the criminal proceedings under the Code. The judgement of the Supreme Court in the case of Maj. Genl. A. S. Gauraya (supra) relied on by the learned Additional Sessions Judge is again not relevant to the facts of the present case as that case pertains to dismissal of the complaint in the criminal proceedings under the Code. ( 16 ) AS regards the question of jurisdiction raised by the respondent in the written statement, it may be pointed out that by order dated 21. 5. 1986, the learned Metropolitan Magistrate had granted interim maintenance and the main petition is yet to be disposed of. I, therefore, do not find any merit in the contention urged by the learned counsel for the respondent that point of jurisdiction ought to have been decided before passing any order for interim maintenance. ( 17 ) IN view of the above discussion the revision petition is allowed. The order dated 20th October, 1989 passed by the learned Additional Sessions Judge is set aside and the orders dated 15. 3. 1989 passed by the learned Metropolitan Magistrate is restored. The parties are, however, left to bear their own costs. The lower court records be sent back forthwith.