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2008 DIGILAW 1499 (PNJ)

Raj Bahadur Sarot v. Anju Sarot

2008-09-02

HEMANT GUPTA, KANWALJIT SINGH AHLUWALIA

body2008
Judgment Hemant Gupta, J. 1. The petitioner has approached this Court for the issuance of a writ in the nature of certiorari for quashing of the order dated 13.8.2008 (Annexure P-12), passed by the learned District Judge, Rohtak. 2. The brief facts out of which the present writ petition arises are that the petitioner and respondent No. 1 are husband and wife having a minor daughter, namely, Ridhi out of their wedlock. The petitioner filed a petition for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (for short the Act) on 23.11.2005. In the said petition, the wife moved an application for grant of maintenance pendente-lite, which was allowed by the learned District Judge, Rohtak, on 10.4.2006, awarding a sum of No. 10,000/- p.m. as interim maintenance. A sum of Rs. 5,100/- was awarded as litigation expenses. The said order was challenged by the petitioner before this Court in Civil Revision No. 2626 of 2006. Earlier, the order dated 10.4.2006 was stayed with the rider that the petitioner shall pay a sum of Rs. 5,000/- per month as interim maintenance. However, the said Revision Petition was finally dismissed on 17.3.2007 and the order passed by the learned trial Court was maintained. The petitioner filed a review petition before this Court, which was also dismissed on 9.7.2007. 3. It is, thereafter, the petitioner filed another review application for the review of the order dated 10.4.2006, which has been dismissed by the learned District Judge on 13.8.2008 (Annexure P.12). It is the said order, which is the subject matter of challenge in the present writ petition. 4. The petitioner has filed an application on 31.5.2007 under Section 340 of the Code of Criminal Procedure in the proceedings under Section 13 of the Act. The petitioner has also filed another petition seeking decree for judicial separation under Section 10 of the Act on 18.3.2008. On the other hand, the minor daughter of the parties has filed a suit for partition of the joint property on 12.10.2006. The petitioner has moved an application under Section 340 Cr.P.C. on the ground that the instance in the application under Section 24 of the Act, are incorrect; false and also in contradiction to the averments made in the suit for partition filed on behalf of the minor daughter of the parties. The petitioner has moved an application under Section 340 Cr.P.C. on the ground that the instance in the application under Section 24 of the Act, are incorrect; false and also in contradiction to the averments made in the suit for partition filed on behalf of the minor daughter of the parties. Thus, it is alleged that the respondent-wife is to be proceeded against under Section 340 of the Code of Criminal Procedure. Though in the application under Section 340 Cr.P.C, the petitioner has not given specific instance in the application or in the suit for partition pointing out fabrication; contradiction or falsity but in the written arguments (Annexure P.4), the petitioner has given details of such infirmities. A perusal of the said arguments would show that the petitioner has disputed the extent of the properties owned by him or the share which he had in the properties disclosed by the wife or daughter of the parties. 5. Without going into the extent of contradictions or furnishing of incorrect information, suffice it to say that the application under Section 24 of the Act is to be decided summarily on the basis of the averments made in the application and the affidavit appended thereto. The wife has given details of the properties of the husband, which she perceived to be that of her husband. The Court has considered the extent of the properties owned by the petitioner on the basis of reply filed and passed an order of interim maintenance. The said order of interim maintenance has been affirmed by this Court and also by the Honble Supreme Court in S.L.P. (C) No. 15961 of 2007, which was dismissed on 11.2.2008. The petitioner has filed another SLP aggrieved against the order passed by this Court on 9.7.2007 in the review petition. The said S.L.P. (C) No. 2062 of 2008 was adjourned by four weeks on 2.5.2008 on the ground of the illness of the counsel for the petitioner. 6. Learned Counsel for the petitioner has challenged the order passed by the learned District Judge on 13.8.2008 in the review application dismissing the same with costs of Rs. 10,000/- finding that the petitioner has not paid the arrears of maintenance. 7. 6. Learned Counsel for the petitioner has challenged the order passed by the learned District Judge on 13.8.2008 in the review application dismissing the same with costs of Rs. 10,000/- finding that the petitioner has not paid the arrears of maintenance. 7. Learned Counsel for the petitioner has vehemently argued that the respondent-wife has made contradictory statements in an application under Section 24 of the Act and in the Civil Suit, therefore, the order of grant of maintenance is vitiated. Apart from filing the voluminous paper book of 339 pages, the learned Counsel for the petitioner has also taken considerable time of this Court so as to make out a case for interference with the order passed by the learned District Judge. The learned Counsel for the petitioner has relied upon S.P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs and Ors. United India Insurance Co. Ltd. v. Rajendra Singh and Ors., Pallav Sheth v. Custodian; Commissioner of Customs v. Candid Enterprises; Sumita Devi Anand (Dead) by LRs v. Shanti Devi (Dead) by LRs; State of A.P. and Anr. v. T. Suryachandra Rao; Bhaurao Dagdu Parol Kaur v. State of Maharashtra and Ors. and T.V. Vijendradas and Anr. v. M. Subramanian and Ors. 8. We are of the opinion that the order passed by the learned District Judge, dismissing the review petition to seek review of the order dated 10.4.2006, cannot be said to be patently unjustified in law. The order passed by the learned District Judge on 10.4.2006 has been affirmed by this Court as well as by the Honble Supreme Court. Therefore, the learned District Judge, will not have any jurisdiction to interfere with the said order in the review petition, as by applying the doctrine of merger, the said order stands merged with the order passed by this Court. 9. In terms of the judgment of the Honble Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, the writ petition filed by the petitioner could not be entertained when the petitioner has already chosen the remedy under Section 115 of the CPC. Since the order passed on 10.4.2006 has been affirmed by this Court in revision, the filing of the present writ petition under Articles 226/227 of the Constitution of India, is wholly misconceived. Since the order passed on 10.4.2006 has been affirmed by this Court in revision, the filing of the present writ petition under Articles 226/227 of the Constitution of India, is wholly misconceived. If the prayer made in the writ petition is to be granted, then the same would have the effect to nullify the order passed by the learned Single Bench of this Court, which is not permissible in law. 10. The argument that the respondent-wife is liable to proceeded against under Section 340 of the Code of Criminal Procedure, need not be examined as such application is still pending before the learned trial Court. The judgments referred to by the learned Counsel for the petitioner, are not relevant for determining the controversy raised in the present writ petition. 11. Consequently, we are of the opinion that the petitioner has abused the process of law by invoking the jurisdiction of this Court by way of a writ petition in the facts and circumstances of the present case. 12. Consequently, the present writ petition is dismissed.