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2012 DIGILAW 1690 (PNJ)

Mukesh Sharma v. Aditi Sharma

2012-12-03

SABINA

body2012
JUDGMENT Mrs. Sabina, J.: - Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.) for setting aside order dated 17.11.2008 (Annexure P1) passed by the learned Sub Divisional Judicial Magistrate, Batala under Section 125 Cr.P.C. granting interim maintenance and order dated 11.12.2009 (Annexure P2) whereby the revision filed against order dated 17.11.2008 was dismissed by the learned Additional District Judge. 2. Learned counsel for the petitioner has submitted that the Court of revision, while holding that the said petition was not maintainable, had relied upon the judgment of this Court in Harjit Singh vs, Jasjit Kaur 1989(2)RCR(Criminal) 191. However, the said judgment was over-ruled by the Division Bench of this Court in Sunil Kumar Sabharwal vs. Mrs. Neelam Sabharwal and others 1991 Criminal Law Journal 2056. 3. None has appeared on behalf of the respondent. 4. In the present case, vide order dated 17.11.2008 (Annexure P1), interim maintenance to the tune of Rs.6000/- per month was allowed to the respondent in a petition filed by her under Section 125 Cr.P.C. Petitioner preferred the revision petition against the said order. The Court of revision held that the revision petition was not maintainable and, in this regard, reliance was placed on the decision of this Court in Harjit Singh’s case (supra). 5. However, the decision relied upon by the Court of revision has been set aside by the Division Bench of this Court in Sunil Kumar Sabharwal’s case (supra) wherein it was held as under:- “7.The same interpretation was approved and affirmed in Madhu Limaye v. State of Maharasthra, AIR 1978 SC 47 . A learned Judge of the Bombay High Court in Hasmukh J.Jhaveri v. Sheela Dadlani 1981 Cri LJ 958, reviewed the case law and reduced the substance in the form of 12 propositions. In brief, it may be taken as settled law that the expression “interlocutory order’ u/s 397(2) of the Code is to be given a restricted meaning. Orders which are purely procedural, necessary for the progress of the case, such as orders summoning witnesses, adjourning cases etc. are interlocutory. Finality of the case is not a sine qua non of an order for being taken out of the category of interlocutory order. Orders which are purely procedural, necessary for the progress of the case, such as orders summoning witnesses, adjourning cases etc. are interlocutory. 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. 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. 8. This very question directly arose in Sumer Chand v. Sandhuran Rani (1981 Cr LJ 958) (Bom) (supra). It was examined in some detail by Ujagar Singh, J., and it was held that an order granting interim maintenance u/s 125 of the Code of Criminal Procedure was not an interlocutory order. On the other hand a contrary view was expressed in Harjit Singh v. Jasjit Kaur (1989) 2 Recent CR 191. The learned Judge purported to follow two earlier single Bench decisions in Tek Chand v. Naraini Devi, 1986 (2) Recent CR 287 and Pawan Kumar v. Chanchal Kumari, 1987(2) Recent Cr 454. Both these order are short ones and what was held was that in the facts and circumstances of these cases extraordinary jurisdiction of the High Court u/s 482 of the Code could not be invoked. 9. For the reasons stated above, we hold that an order granting interim maintenance is not an interlocutory order and revision there against is not barred u/s 397(2) of the Code. 9. For the reasons stated above, we hold that an order granting interim maintenance is not an interlocutory order and revision there against is not barred u/s 397(2) of the Code. We,therefore, quash and set aside the order dated 28.4.1990 passed by the learned Addl.Sessions Judge and direct that he shall enter the present revision petition against its original number and hear and dispose of the same on merits according to law within a period of three months. The parties through their counsel are directed to appear in the court of Addl. Sessions Judge, Chandigarh, on 3.12.1990.” 6. Accordingly, this petition is allowed. The impugned order dated 11.12.2009 (Annexure P2) passed by the Court of revision is set aside. Consequently, learned Court of revision is directed to pass a fresh order in accordance with law. ---------0.B.S.0------------