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2000 DIGILAW 66 (HP)

AMAR NATH v. PROMILA DEVI

2000-03-31

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.: This revision petition is directed against the order dated 3.6.1999 in Execution Petition No. 28 of 1995 passed by the learned Additional Chief Judicial Magistrate, Amb, District Una, whereby the objections preferred by the petitioner against the execution of maintenance order against him has been dismissed. 2. In brief the admitted facts of the matter are that on an application under Section 125,Code of Criminal Procedure, moved by the respondents the concerned Judicial Magistrate, Amb, allowed maintenance of Rs.500/- to respondent Raj Kumar, minor son of the petitioned An application for the execution of the said order regarding Rs. 10,500/- on account of maintenance for the period 30.8.1993 to 31.5.1995 along with interest was preferred by the respondents on the ground that the petitioner had failed to pay the said amount. 3. The petitioner filed objections against the execution petition averring therein that the execution was not maintainable and a sum of Rs. 14,000/- has been paid by the petitioner to the respondents on 6.9.1994 and that the Additional Senior Sub Judge, Dasuha, had passed an order regarding handing over of the custed of respondent Raj Kumar to the petitioner, therefore in view of such order the respondents are not entitled for amount of the maintenance from the petitioner. 4. On the basis of the respective averments of the parties the Executing Court - framed the following issues: 1. Whether the execution petition is not maintainable? OPJD. 2. Whether JD has paid Rs. 14,000/- to DH on 6.9.1994, as alleged? OPJD. 3. Relief. 5. By the impugned order the executing court held all the aforesaid issues against the petitioner and as a consequence dismissed the objection petition. However, he restricted the claim of the respondent only to a sum of Rs.6, 000/- a claim which was found to be within time. Feeling aggrieved the petitioner has preferred the present revision petition. 6. I have heard learned counsel for the parties and have also gone through the record. 7. However, he restricted the claim of the respondent only to a sum of Rs.6, 000/- a claim which was found to be within time. Feeling aggrieved the petitioner has preferred the present revision petition. 6. I have heard learned counsel for the parties and have also gone through the record. 7. It was contended by the learned counsel for the petitioner that the impugned order is un-sustainable on the grounds: (i) that Additional Senior Sub Judge, Dasua, vide order dated 24.7.1995 has directed the handing over of the custody of the minor- claimant, respondent No.2 to the petitioner, therefore, in view of such order, the maintenance order cannot be enforced against the petitioner; and (ii) that the evidence of the respondent in support of his plea that he has already paid a sum of Rs. 14,000/- in lieu of the maintenance amount claimed in the execution petition, has wrongly and illegally been disbelieved by taking into account insignificant contradictions in the statements of the material witnesses. 8. Be it stated that in the execution petition for recovery of the maintenance in the sum of Rs. 10,500/- the maintenance at the awarded rate of Rs.500/-has been sought to be recovered for the period 30.8.1993 to 31.5.1995 and even this claim has been restricted only to the period commencing from 1.6.1994 to 31.5.1995 by the order of the Court in view of the fact that the petitioner could not ask for realisation of the amount of maintenance which remained un-paid for a period of more than 12 months: The order regarding handing over the custody of respondent No.2 to the petitioner has been passed on 24.7.1995. Thus, the plea based on the order dated 24.7.1995 passed by the learned Addl. Senior Sub Judge, Dasua is not relevant for the period for which the maintenance is being recovered by way of execution of the order of maintenance. 9. To prove that a sum of Rs. Thus, the plea based on the order dated 24.7.1995 passed by the learned Addl. Senior Sub Judge, Dasua is not relevant for the period for which the maintenance is being recovered by way of execution of the order of maintenance. 9. To prove that a sum of Rs. 14,000/- has been paid by the petitioner in lieu of the maintenance, reliance has been laid on the statements of OW-1 Amar Nath, OW-2 Ram Swaroop and OW-3 Bidhi Chand read with the document Ex.DW-1/A. The version of the petitioner and his witnesses about the due execution of the aforesaid document and the acknowledgement of receipt of Rs.14,000/- thereby by respondent No.l has been disbelieved by the Court below in view of the contradictions in their statements, rendering them highly doubtful and unbelievable. 10. Appreciation of evidence as made by the Court of first instance which records the evidence and has the occasion to observe the demeanour of the witnesses, is not lightly interfered with unless some grave mistake in appreciating the evidence resulting in miscarriage of justice is pointed out. In the instant case, no such flaw in the appreciation of the evidence by the executing court has been shown. The contradictions in the statements of the OWs pointed-out by the court below are undisputedly there. It cannot be, therefore, said that the executing Court has erred in coming to the conclusion that there are contradiction in the statements of the witnesses. 11. It is true that minor contradictions must be ignored; keeping in view the fact that a parrot like version from the witnesses about the existence of certain state of affairs cannot be expected particularly after a lapse of time. On the contrary, if the parrot like version comes on record, it must create doubt about the veracity of the witness. In the instant case, these are not only contradictions but one more aspect of the matter which renders the version of the petitioner having paid the maintenance allowance to the claimant- respondent, un-reliable and irrelevant for the purpose of the claim as laid in the execution petition. 12. A perusal of the document Ex.DW- I/A, on the face of it, mentions that respondent No.l received a sum of Rs. 14,000/- from the petitioner and willingly agreed to stay with him and his family and further agreed not to resile from the agreement to live with the petitioner. 12. A perusal of the document Ex.DW- I/A, on the face of it, mentions that respondent No.l received a sum of Rs. 14,000/- from the petitioner and willingly agreed to stay with him and his family and further agreed not to resile from the agreement to live with the petitioner. Thus, even if it is presumed that any payment was made by the petitioner to respondent No. 1 as mentioned in Ex.DW- I/A, it was in lieu of her agreeing to stay with him and his family members as his wife and not to resile from this agreement. Evidently, this is not payment of the amount of maintenance which is now sought to be recovered in the execution proceedings. Moreover, the petitioner, in his statement, as OW-1 has specifically stated that he paid a sum of Rs. 14,000/- to his child (respondent No. 2) during the pendency of the execution petition. The execution petition, admittedly, was instituted on 2.6.1995 whereas the document Ex.DW-1/A had been executed on 6.9.1994, i.e. prior to the institution of the execution petition. Even this admission on the part of the petitioner belies the plea that the alleged payment vide Ex.DW-1/A was made in lieu of the maintenance allowance in favour of respondent No.2 during the pendency of the execution petition. 13. In view of the above discussion, it cannot be said that this is a case of mis-appreciation of evidence resulting in gross injustice to the petitioner. In-fact, the evidence on record has been rightly appreciated by the executing Court which has arrived at a right conclusion. Therefore, the impugned order does not call for any interference by this Court. 14. As a result, the revision petition merits dismissal and is accordingly dismissed. Petition dismissed