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2001 DIGILAW 208 (HP)

DIPAN DEVI v. NIKKU RAM

2001-08-24

C.K.THAKKER

body2001
JUDGMENT C.K. Thakker, C.J.(Oral)- This petition is filed against an order passed by the learned Addl. Chief Judicial Magistrate, Ghumarwin, District Bilaspur dated November 22, 2000 in case No. 18/10 of 1995. The petitioner herein, are wife of respondent (petitioner No.1) and daughter and son of respondent (petitioners No.2 and 3) respectively. It appears that the petitioners approached the Court of Sub Divisional Judicial Magistrate, Ghumarwin, District Bilaspur by filing an application under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) on March 20, 1992, praying therein that they may be awarded maintenance. So far as petitioner No.1 is concerned, an amount of Rs.500/- was claimed whereas for two minor children, an amount of Rs.600/- (Rs.300/- each) was claimed, (Rs.1100/- in all). The learned Magistrate in the light of the provisions of sub-section (2) of Section 32 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act), forwarded the matter to" the Panchayat so that it can be heard and decided by the Gram Panchayat. Since under the Act, a Gram Panchayat is also empowered to grant maintenance allowance not exceeding Rs.500/-, the Panchayat made an order on August 9, 1995. The original order is in Hindi and Translation has been supplied by the learned counsel for the petitioners, which is on record. The operative part there of states that the application filed by the petitioners, which is on record. The operative part thereof states that the application filed by the petitioner was partly allowed and petitioner No.1 (wife) was awarded monthly maintenance of Rs.300/- whereas both children were awarded maintenance of Rs.400/-(Rs.200/- each ) that is, in all Rs.700/-. 2. Being aggrieved by the order passed by the Panchayat, the husband approached the Additional Chief Judicial Magistrate under Section 67 of the Act. The said section enables the Judicial Magistrate/Sub Judge to entertain an appeal by an aggrieved person, if an order or decree is passed by a Bench of Gram Panchayat. The appeal was barred by limitation as it was filed beyond 30 days. As observed in the order, considering the service of order, there was delay of only three days and, hence, delay was condoned and the appeal was entertained. 3. The appeal was barred by limitation as it was filed beyond 30 days. As observed in the order, considering the service of order, there was delay of only three days and, hence, delay was condoned and the appeal was entertained. 3. On merits, the learned Magistrate held that when the petitioners approached the Judicial Magistrate by invoking the provisions of Section 125 of the Code, keeping in mind the provisions of sub-section (2) of Section 32 of the Act, the matter was sent to the Panchayat with a direction that de novo proceedings would be initiated by the Panchayat. The learned Magistrate, however, noted that the said order had not been complied with and de novo proceedings had not been held and an order was passed by the Panchayat. Such order, in the opinion of the learned Magistrate was not in consonance with law. In this connection, reliance was placed by the learned Magistrate on a decision of single Bench of this Court in Smt. Hari Devi V. Bhagat Singh and another, (1996) 2 SLJ 1625. The learned Magistrate in para 6 stated thus : "Keeping in view the ratio set out in the aforesaid authority, it is clear that the concerned Gram Panchayat in which the case was transferred was to try the case de novo, whereas the present case has not been decided by the concerned Gram Panchayat de novo, bu4 on the basis of the statements recorded in this Court. In such circumstances, I have no hesitation to hold that the order passed by the concerned Gram Panchayat is illegal and therefore is liable to be set-aside and quashed. "However, the case is remanded to the Gram Panchayat Anarpur, for de novo trial with the direction to proceed with the present petition under Section 125 Cr.P.C. in accordance with law. The record of the Gram Panchayat be returned along with the copy of this order, whereas, the remaining record be consigned to record room, after completion." 4. The learned counsel for the petitioner contended that the order passed by the learned Magistrate is not legal and deserves to be quashed and set aside. It was urged that the jurisdiction of the Panchayat and the learned Magistrate is concurrent and the petitioners were fully justified in approaching the Court of the Learned Magistrate and when evidence was recorded by him, direction of de novo trial was without jurisdiction. It was urged that the jurisdiction of the Panchayat and the learned Magistrate is concurrent and the petitioners were fully justified in approaching the Court of the Learned Magistrate and when evidence was recorded by him, direction of de novo trial was without jurisdiction. It was also submitted that the order passed by the Panchayat granting maintenance was legal and valid. The Counsel submitted that an error of law has been committed by the learned Magistrate in relying on a decision of Smt. Hari Devi. According to Counsel, that was not the law and that is not the law on the point. Inviting the attention of this court to two decisions of Division Bench in Goverdhan Dass v. Smt. Bhagmatu and another, ILR 1975 HP 127 and Manoj Kumar v. Lalita Devi and others, 1997(2) SLJ 1447, it was submitted that it has been held by this Court that the jurisdiction of the Magistrate under the Code of Criminal Procedure as well as of the Panchayat under the Panchayat Act is concurrent and hence the direction issued by the learned Magistrate to try the case de novo was contrary to law and without jurisdiction. A grievance was also made that though the proceedings were under Section 125 of the Code relating to maintenance of wife and children, the learned Magistrate has unduly delayed in disposal of the proceedings. From the order, it clearly appears that the appeal was instituted on August 30,1995 and it was finally decided by remanding the matter to the Panchayat on November 22, 2000 i.e. more than five years were taken in disposal of the proceedings. The counsel submitted that in such matters, the learned Magistrate ought to have given priority by disposing the matter expeditiously, in as much as, the proceedings were initiated in March 1992. The counsel also stated that though more than nine years have passed, no payment has been made by the respondent-husband either to the wife, or to the children. Finally, it was submitted that in the appeal filed by the respondent-husband, the learned Magistrate, ought to have appreciated an important fact that the appeal was filed by the respondent husband only against the wife and not against the two children. Finally, it was submitted that in the appeal filed by the respondent-husband, the learned Magistrate, ought to have appreciated an important fact that the appeal was filed by the respondent husband only against the wife and not against the two children. Drawing the attention of the Court to the application as well as order passed by the Gram Panchayat, it was submitted that the application was made by the wife and two children. The order was also passed in favour of all the petitioners. When the appeal was filed only against the wife and the petitioners No.2 and 3 were not joined as parties nor they were served notices through their mother petitioner, no order could have been passed so far as two children are concerned and to that extent, the proceedings became final and the order passed by the learned Magistrate deserves to be quashed and set aside. It was submitted that since the order passed by the Panchayat was in consonance with law and there is no legal infirmity, the proceedings maybe ordered to be closed by granting the relief, which had been granted in favour of the petitioners. In the alternative, appropriate direction may be issued so that the amount may be paid to the petitioners, due and payable as on today. 5. The learned counsel for the respondent submitted that order passed by the learned Magistrate does not require interference. It was stated that when the matter was sent to the Panchayat by the learned Magistrate, a direction was issued that de novo proceedings ought to be initiated. It was, therefore, incumbent on the Panchayat to start de novo proceedings. Since it was not done, the order passed by the Gram Panchayat was illegal and contrary to law. The learned Magistrate was, therefore, right in setting aside the said order and in granting relief to the husband. It was submitted that the petition deserves to be dismissed. 6. After hearing the learned counsel for the parties, in my opinion, the petition deserves to be allowed. So far as the order passed by the Judicial Magistrate is concerned, it was in consonance with sub-section (2) of Section 32 of the Act and the matter was sent to the Panchayat. The said order is not on record. 6. After hearing the learned counsel for the parties, in my opinion, the petition deserves to be allowed. So far as the order passed by the Judicial Magistrate is concerned, it was in consonance with sub-section (2) of Section 32 of the Act and the matter was sent to the Panchayat. The said order is not on record. But even if it is assumed for the sake of argument that what was submitted by the learned counsel for the respondent-husband is correct that the learned Magistrate directed the panchayat to start de novo proceedings, as that order was not in consonance with law and a decision of the Division Bench of this Court in Goverdhan, which was decided before more than two decades to the order passed by the learned Magistrate, the said direction could not be issued. The Panchayat was, therefore, wholly justified and within its jurisdiction to deal with the matter and decide it. Accordingly, a decision was taken granting maintenance in favour of wife as well as children. Since the order was passed by the Panchayat, an appeal could have been filed by the respondent under Section 67 of the Act. When an appeal was filed, it was expected of the learned Magistrate to decide the same in accordance with law. 7. At the same time, however, the grievance voiced by the learned counsel for the wife and children is well-founded that the learned Magistrate ought to have considered the fact that the matter related to maintenance of wife and children and he should have given priority. Pendency of such matter for more than five years and then to remand the same obviously negates the relief which was granted in favour of wife and children under Section 125 of the Code, which are the proceedings of a summary nature. 8. In the facts and circumstances of the case, in my opinion, it would be in the interest of justice if I set aside the order dated November 22, 2000 passed by the learned Magistrate by directing him to take appropriate decision in accordance with law. 8. In the facts and circumstances of the case, in my opinion, it would be in the interest of justice if I set aside the order dated November 22, 2000 passed by the learned Magistrate by directing him to take appropriate decision in accordance with law. Since the case of the petitioners is that in spite of the order passed by the Gram Panchayat, no amount has been paid, I direct that the appeal shall not be heard by the learned Magistrate unless the entire amount is paid by the respondent-husband as per the order passed by the Gram Panchayat. 9. Regarding the contention that the appeal was only against the wife and not against the two children and to that extent the decision had become final, I express no opinion. It is open to the petitioners to raise the said contention before the Appellate Authority and the Appellate Authority will consider the same and decide on its own merits. Since the matter is very old, the Appellate authority is directed to dispose of the same as expeditiously as possible, preferably by December 31, 2001 .but only after the full payment is made by the respondent. If the amount is not paid by the respondent-husband to the petitioners, the appeal shall stand dismissed treating the order passed by the Panchayat as final. It will be open thereafter to the petitioners to take appropriate proceedings for execution of the order. The parties through their learned counsel are directed to appear before the learned Magistrate on October 8, 2001. A copy of this order will be sent to the learned Magistrate immediately. No costs.