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2001 DIGILAW 260 (ORI)

Suryakanti Rao v. Sarathi Rao

2001-06-20

P.K.TRIPATHY

body2001
JUDGMENT P. K. TRIPATHY, J. — This Revision is directed against the judgment of learned Additional Sessions Judge, Titilagarh in Criminal Revision No. 11 of 1997. 2. A detailed narration of facts is not necessary. The relevant fact is that petitioner No. 1 claiming as the legally married wife and petitioner Nos. 2 and 3 as the children out of wedlock claimed for maintenance under Sec. 125, Cr.P.C. by filing an application in the Court of S.D.J.M., Titilagarh which was registered as Criminal Misc. Case No. 43 of 1996. On 20.9.1996 an ex parte order of interim maintenance was passed granting interim monthly maintenance @ 200/- to each of the petitioners and the stipulation was made in that order that the petitioner shall execute a P.R.bond of Rs. 5,000/- with an undertaking to refund the interim maintenance amount if ultimately she would be found not entitled to the maintenance under Sec. 125, Cr.P.C. On 27.3.1997, the proceeding under Sec. 125, Cr.P.C. was disposed of ex parte by granting maintenance in favour of each of the peti¬tioners. However, on the application filed by the opposite party under Sub-sec. (2) of Section 126, Cr.P.C., learned S.D.J.M. set aside the ex parte order of maintenance but order was passed to keep the order of interim maintenance in abeyance. The opposite party filed an application before SDJM to recall the order of interim maintenance and the petitioners filed an application to vacate the order of abeyance of the interim maintenance. On 5.8.1997, learned S.D.J.M. on due consideration of both the applications and the contention thereof directed the opposite party to pay interim maintenance of Rs. 200/- per month to each of the petitioners till disposal of the original case i.e. the application under Sec. 125, Cr.P.C. with the same stipulations made in the order dated 20.9.1996 (i.e. relating to executing P.R.bond). That order of learned S.D.J.M. was challenged by the opposite party in the aforesaid Criminal Revision No. 11 of 1997. Learned Addl. 200/- per month to each of the petitioners till disposal of the original case i.e. the application under Sec. 125, Cr.P.C. with the same stipulations made in the order dated 20.9.1996 (i.e. relating to executing P.R.bond). That order of learned S.D.J.M. was challenged by the opposite party in the aforesaid Criminal Revision No. 11 of 1997. Learned Addl. Sessions Judge after noting the facts and circumstances allowed the revision applica¬tion and set aside the order dated 5.8.1997 of learned S.D.J.M. on the following ground that : “As is found the order of interim maintenance granted on 20.9.1996 has ceased to operate on passing of ex parte order of maintenance on 27.3.1997 and has not revived on setting aside of the ex parte order, in other words at present no order of interim maintenance subsists.” 3. Learned counsel for the petitioners rightly argued that the order of interim maintenance vide order dated 5.8.1997, cannot be interpreted as an order granting interim maintenance retrospectively with effect from 20.9.1996. He further argued that after the ex parte order of maintenance was set aside when the proceeding under Sec. 125, Cr.P.C. was again restored to file for adjudication of the claim of maintenance of the petitioner, learned S.D.J.M. had jurisdiction to pass an order for interim maintenance and, therefore, learned Addl. Sessions Judge without properly visualising the aforesaid two circumstances and sequence of events wrongly passed an order setting aside the order dated 5.8.1997 with the opinion that the order of interim maintenance had spent its force after the order of ex parte maintenance was passed on 27.3.1997. 4. Learned counsel for the opposite party, on the other hand, argued hat on restoration of the proceeding under Sec. 125, Cr.P.C. since there was no automatic revival of the order of interim maintenance, therefore, learned S.D.J.M. was wrong in directing for payment of interim maintenance as per the order dated 5.8.1997. 5. Keeping in view the aforesaid fact and sequence scenario and the order dated 5.8.1997 of the learned S.D.J.M. and the impugned judgment dated 20.11.1997 of the learned Addl. Sessions Judge, this Court finds that learned Addl. Sessions Judge totally confused the issue and took a wrong decision in setting aside the order dated 5.8.1997 passed by the learned S.D.J.M., Titilagarh. Keeping in view the aforesaid fact and sequence scenario and the order dated 5.8.1997 of the learned S.D.J.M. and the impugned judgment dated 20.11.1997 of the learned Addl. Sessions Judge, this Court finds that learned Addl. Sessions Judge totally confused the issue and took a wrong decision in setting aside the order dated 5.8.1997 passed by the learned S.D.J.M., Titilagarh. It is by now settled position of law that in a case under Sec. 125, Cr.P.C. the Magistrate has the jurisdiction to entertain the application and to pass appropriate order relating to interim maintenance. Whether or not the ex parte order took away the effect of order dated 20.9.1996, but the fact remains that by 5.8.1997 learned S.D.J.M. was in seisin of the matter on the application of both the parties as to whether interim maintenance should be paid to the petitioners or not. Once he exercised his discretion by a speaking order in favour of the petitioners in granting interim maintenance, learned Addl. Sessions Judge should not have casually and whimsically interfered with that order vide the impugned judg¬ment. Under such circumstances, the impugned judgment of the learned Addl. Sessions Judge is set aside and the order dated 5.8.1997 of learned S.D.J.M. is restored to file. 6. The Criminal Revision is accordingly allowed. Crl. revision allowed.