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2004 DIGILAW 243 (HP)

PURANCHAND v. DHANGESHARI DEVI

2004-09-27

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.: This petition under Article 227 off the Constitution of India read with Section 482 of the Code of Criminal Procedure (hereinafter referred as, ‘the Code’), has been preferred by the petitioner against the orders dated 23.11.2002 and 23.3.2004, respectively, passed by the learned Chief Judicial Magistrate and the learned Additional Sessions Judge, Mandi, whereby the learned Chief Judicial Magistrate had granted interim maintenance to the respondent and the learned Additional Sessions Judge has dismissed the revision petition of the petitioner challenge such grant as being not maintainable. 2. Brief facts leading to the filing of the present petition ace that the respondent during the pendency of her petition under Section 125 of the Code for grant of maintenance to her and her minor daughter, moved an application for grant of interim maintenance to her during the pendency of the aforesaid petition. The (earned trial Magistrate allowed the application and granted interim maintenance of Rs. 400/-per month in favour of the respondent and also directed the petitioner to pay Rs. 300/- as litigation expenses to the respondent. 3. Aggrieved by the order, petitioner filed a Revision Petition, which has been dismissed by the learned Additional Sessions Judge vide impugned order dated 23.3.2Q04 on the ground that it was not maintainable. Hence, this petition by the aggrieved petitioner. 4. 1 have heard the learned Counsel for the parties. The revision petition having been dismissed on a preliminary objection and not on merits of the claim, the arguments were confined to the question as to whether the revision petition against the order of the learned Chief Judicial Magistrate was or was not maintainable. 5. It was contended by the teamed Counsel for the petitioner that the learned Additional Sessions Judge has wrongly held the order granting interim maintenance to the respondent as interlocutory order and, thus, misled himself to dismiss the revision petition on the ground that being against an interlocutory order it was not maintainable. It was further contended that the revision petition was maintainable and should have been decided on merits. 6. It was further contended that the revision petition was maintainable and should have been decided on merits. 6. The learned Counsel for the respondent has contended that the grant of interim maintenance was subject to final order to be passed in the petition under Section 125 of the Code, therefore, the order granting interim maintenance is an interlocutory order against which the revision did not lie and the Additional Sessions Judge has rightly and legally dismissed the Revision Petition on that ground. 7. The expressions "interlocutory order as used in sub-section (2) of Section 397 of the Code, has not been defined in the Code. No single general test to determine "finality" of an order has so far been laid. An order may be final for one purpose and may be interlocutory for other purpose. Therefore, the meaning of the expressions "final" and "interlocutory" has to be considered in relation to the particular purpose for which it is passed. On of the sure test to determine whether the order is final or interlocutory is as to whether the order of its own force binds or affects the rights of the parties. If the answer is in the affirmative, the order will be final for the purpose of the provisions of Section 397(2) of the Code but if it does not so bind or effect the rights of the parties it will be interlocutory. 8. In Sudershan Lai Bhatia and others v. State of H.P. and another, Latest HLJ 2003 HP 1347: 2004 (Suppl.) Cur.L.J. (H.P.) 206, this Court after noticing the decisions of the Apex Court in Amar Nath and others v. State of Haryana and others, AIR 1977 SC 2185, Madhu Limaya v. State of Maharashtra, AIR 1978 SC 47, K.K. Patel and another v. State of Gujarat and another, 2000 Vol. 6 SCC 195 and Bhaskar Industries Ltd. v. Bhiwani Denin and Apparels Ltd. and others, 2000 Vol. 7 SCC 401, held as under:- "12. It clearly emerges from the above cited decisions that expression "interlocutory order" as used in sub-section (2) of Section 397 of the Code, is not necessarily an order other than final decision or converse of the expression "final order". It, however, means the order of a purely interim or temporary nature which does not decide the important rights or liabilities of the parties. It, however, means the order of a purely interim or temporary nature which does not decide the important rights or liabilities of the parties. However, the order which adjudicates and substantially affects the rights of the parties or a particular aspect of the case, cannot be said an "interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. Therefore, the test to decide as to whether the order is "interlocutory" within the meaning of Section 397(2) of the Code or not, is whether by upholding the objections raised in the revision, it would result in culminating the proceedings or not. In case on acceptance of the objection raised against the order the proceedings would culminate as a whole, the order cannot be termed as "interlocutory stage" even if passed during an interlocutory stage." 9. Examined in view of the above settled position in law an order calling upon a party to produce its witnesses, filing of process fee or taking steps for service of the opposite party in the case, orders regarding summoning of witnesses or discharge of witnesses after due examination or when not intended to be examined by a party and such other formal orders in accordance with the procedure in furtherance of the trial of a case will be interlocutory orders. However, in a case where a party, as in the case in hand, is directed to pay interim maintenance to the opposite party after taking into account their submissions, the order decidedly effects the rights of the party against whom the-order is made, therefore, though may not be the final order in the sense it does not dispose of the application under Section 125 of the Code but insofar as the period of pendency of such petition is concerned, the rights and obligations of the party stand effected by such order. Therefore, for the purpose of Section 397(2) of the Code such an order will not be an interlocutory order against which revision will not lie. 10. The view I have taken hereinabove is fully supported by the ratio in case Sumer Chand alias Sumer Nath v. Sandhuran Rani and another, 1987 Cri.L.J. 1396 and Sun/7 Kumar Sabharwal v. Mrs. Neelam Sabharwal, 1991 Cri.LJ. 2056. 11. 10. The view I have taken hereinabove is fully supported by the ratio in case Sumer Chand alias Sumer Nath v. Sandhuran Rani and another, 1987 Cri.L.J. 1396 and Sun/7 Kumar Sabharwal v. Mrs. Neelam Sabharwal, 1991 Cri.LJ. 2056. 11. In Sumar Chands case (supra) while dealing with a question as in hand, the Punjab and Haryana High Court held as under :- "5. After considering the whole matter, I am of the view that the argument has no force. Under the Code there is no provision for filing an application for granting interim maintenance during the pendency of main application under Section 125 of the Code after the Supreme Court judgment holding the right of the petitioner under Section 125 of the Code to get interim maintenance. Almost in all cases applications for interim relief are being made. This application for interim maintenance is by itself separate matter and it has to be disposed of separately much earlier than the final order in the main case. By an order of interim maintenance, the rights of the parties are affected and decided finally in respect of that subject matter and by no stretch of imagination such an order can be called an interlocutory order." After referring to the Madhu Limaya v. State of Maharashtra, AIR 1978 SC 47, it was further held : "In view of the matter the impugned order cannot be treated das interlocutory order and, therefore, the revision before the Sessions Judge was competent." 12. In Sunil Kumars case (supra) a Division Bench of the Punjab and Haryana High Court, held as under :- "Finality of the case is not a sine qua non of an order for being taken out of the category of interlocutory order. The crucial test is that the order substantially affects the rights and liabilities of the parties either with regard to the case as a whole or any aspect thereof. Applying the above tests, we are of the considered view that the order in question, is not an interlocutory order. Under the order the petitioner was saddled with a liability to pay maintenance till it was either finally decided or it was varied. For default in payment of the amount, coercive process could be used against the petitioner. Applying the above tests, we are of the considered view that the order in question, is not an interlocutory order. Under the order the petitioner was saddled with a liability to pay maintenance till it was either finally decided or it was varied. For default in payment of the amount, coercive process could be used against the petitioner. It is plain that the rights and liabilities of the parties stood determined though until final decision of the case by the impugned order and the order could not, therefore, be considered to be interlocutory. It does not stand to reason that the aggrieved party should have no remedy against an order fixing interim maintenance." 13. The learned Additional Sessions Judge in holding that a revision petition is not competent against an order granting interim maintenance has relied on Vikas Kumar v. Bharti, 1993(1) SLJ 21 and Madhu Limaya v. State of Maharashtra, AIR 1978 SC 47. However, the ratio in these cases does not support the conclusion arrived at about the non-maintainability of the revision petition by the learned Additional Sessions Judge. Vikas Kumars case (supra) governs an entirety different situation whereas Madhu Limayes case (supra) supports the view that the order, as in hand, cannot be termed as an interlocutory order for the purpose of Section 397 of the Code. 14. For the reasons stated herein above, the revision before the learned Additional Sessions Judge is maintainable and could not have been dismissed as non-maintainable. The impugned order passed by him, therefore, is bad in law, hence, unsustainable. 15. As a result, the impugned order dated 23 3.2004 passed by the learned- Additional Sessions Judge is set aside and the case is remanded to the Court of learned Additional Sessions Judge, Mandi with the direction to readmit the revision petition against its original number and date and dispose it of on merits in accordance with law.