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1995 DIGILAW 45 (KER)

Sivanandan v. Thankamma

1995-02-03

M.M.PAREED PILLAY, T.V.RAMAKRISHNAN

body1995
Judgment :- Pareed Pillay, C.J. Appellant is the plaintiff. He filed the suit for declaration that he is not the father of the second defendant. First defendant is the unwed mother of the second defendant. Plaintiff also sought for permanent injunction restraining the first defendant from executing the order of maintenance under S.125 Cr.P.C. in favour of the second defendant granted by the Judicial Magistrate of First Class, Punalur. The trial court decreed the suit granting declaration in favour of the plaintiff, but disallowed the prayer for injunction. Defendants filed A.S.No. 20 of 1983 before the Sub Court, Kottarakkara. The learned Sub judge allowed the appeal and dismissed the suit. 2. Learned counsel for the plaintiff (appellant) submitted that the Sub Judge went wrong in relying on the order of the Magistrate granting maintenance to the second defendant and as he adopted such a basically wrong approach this Court has necessarily to interfere and the decree of the Munsiff in the suit has to be restored. Learned counsel for the defendants pointed out that the said contention is not tenable as it is a case where the Sub Judge has analysed the evidence on both sides and has come to a finding on that basis and merely because reference has been made to the order of the Magistrate granting maintenance to the second defendant it cannot be said that the Sub Judge has adopted a basically wrong approach. 3. On the side of the plaintiff he alone was examined. On the side of the defendants D.Ws.1 to 7 were examined. D.W.I is the first descendant. She tendered evidence in support of her case. She staled that as a result of her intimacy with the plaintiff second defendant was born to her. D.W.2, Secretary, of the S.N.D.P. Sagha No. 1785 deposed that on receipt of the complaint from the father of the first defendant (D.W.7) he had occasion to negotiate with the parents of both the parties and plaintiffs father had told him that the plaintiff was not in station and when he returned some decision can be taken in the maiter.D.W.3 is the Branch Secretary of the Communist Party of India, Kadasscry. His evidence corroborates the testimony of D.W.2. D.Ws.4 and 6 stated that they had occasion to see the plaintiff and the first defendant together in the nearby forest. His evidence corroborates the testimony of D.W.2. D.Ws.4 and 6 stated that they had occasion to see the plaintiff and the first defendant together in the nearby forest. D.W.7's evidence lends considerable support to the testimony of D.W.1 and that of D. Ws. 2 and 3 with regard to the negotiations that followed as a result of the first respondent's conception and the allegation against the plaintiff for that. 4. Having considered the evidence and also the admission of the plaintiff that he had filed the suit to escape from the liability under the order of maintenance the learned Sub judge held that the plaintiff is not entitled to the decree sought for. This essentially being a finding of fact we cannot interfere with it. We cannot set aside findings of fact entered into by the Sub Judge on consideration of the entire evidence and come to a different conclusion on reappraisal of the evidence. The effect of Ss.100 and 101 read together is that a second appeal is competent only on the ground of an error in law or procedure and not merely on the ground of an error on a question of fact. The High Court has no jurisdiction to entertain a second appeal on the 'ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be'. In this context it is useful to refer to Afasr Shaikh v. Soleman Dibi (AIR 1976 SC 163) where the Supreme Court held: "The scope of the powers of the High Court to interfere in second appeal with judgments and decrees of Courts below is indicated in Ss.100,101 and 103 of the C.P.C. Broadly, the effect of Ss. 100 and 101, read together, is that a second appeal is competent only on the ground of an error in law or procedure and not merely on the ground of an error on a question of fact. The High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of tact, however gross or inexcusable the error may seem to be." 5. It is admitted case that maintenance was granted by the Magistrate in the proceedings initiated by the defendants under S.125 Cr.P.C. as against the plaintiff. The High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of tact, however gross or inexcusable the error may seem to be." 5. It is admitted case that maintenance was granted by the Magistrate in the proceedings initiated by the defendants under S.125 Cr.P.C. as against the plaintiff. As the suit has been filed for a declaration that the order of maintenance in M.C.87 of 1979 was obtained fraudulently by the first defendant and also for a declaration that the plaintiff is not the father of the second defendant the burden is squarely upon him to substantiate his case by cogent evidence. Evidence is lacking to hold that the order in M.C.87 of 1979 was obtained fraudulently by the first defendant as against the plaintiff. Plaintiff could not establish any circumstance to hold that the order in the maintenance case was obtained fraudulently or suppressing material facts from the Court. 6. Merely because of the order of maintenance granted by the Magistrate in favour of the second defendant plaintiff's suit for declaration cannot be dismissed. The order passed in the application filed under S.125 Cr.P.C. is really a summary order which does not finally determine the rights of the parties as the order was made in a proceedings under the Code of Criminal Procedure which has been enacted to provide a summary remedy for providing maintenance and for preventing vagrancy. The decision of the criminal court granting maintenance or refusing to grant maintenance cannot certainly operate as decisive' in any civil proceeding between the parties for determining the issues involved in the civil suit. In such a position the civil court has to decide it on the evidence before it uninfluenced by the decision in the maintenance case. In S. Sethurathinam Filial v. Barbara (1971-3-SCC 923) the Supreme Court held that the decision of the Criminal Court with regard to a disputed marriage will not operate as decisive in any civil proceeding between the parties. As the proceedings under S.125 Cr.P.C. are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner the decision of the Magistrate cannot be considered as the sole basis to the throw out a properly instituted civil suit by the aggrieved party to the maintenance application. 7. 7. As the learned Sub Judge has considered the evidence of the witnesses on the side of the first defendant and has relied on the same to hold that the plaintiff is not entitled to the decree sought for, the findings of the Magistrate in the maintenance case are indeed of no relevance. The Munsiff went wrong in decreeing the suit casting the entire burden on the first defendant. There is hardly any evidence on the side of the plaintiff to hold that the first defendant was leading immoral life. There is complete lack of pleading to that effect in the plaint. First ti me such an allegation was put forward only in the replication. As the learned Sub judge has relied on the evidence and as has come to a finding in favour of the defendants and that being a finding of fact we see hardly any reason to interfere. Second Appeal is dismissed. No costs.