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2012 DIGILAW 788 (HP)

Om Parkash Awasthi v. Nidhi Awasthi

2012-11-05

KULDIP SINGH

body2012
Judgment Kuldip Singh, J. This petition under Article 227 of the Constitution of India read with Section 482 Cr.P.C. has been filed for quashing order dated 31.8.2012 passed by Judicial Magistrate 1st Class (I), Shimla in case No. 18-3 of 2012. 2. It has been stated that the respondent is the daughter in law of the petitioners. Vinay Awasthi husband of the respondent was the son of the petitioners died on 5.1.2012 leaving behind his family and a son. The respondent alleged that after the marriage she resided with her husband at Kunthal Cottage Khalini, Shimla, she and her late husband renovated the building and constructed a duplex from their income. The respondent has also alleged that for raising the construction she spent her istridhan and gifts received from her parents and relatives. The respondent has also alleged that Vinay Awasthi was running a business which has been grabbed by the petitioners. 3. The petitioners denied the contentions of the respondent. They took the stand that for establishing and running the business of Vinay Awasthi they had made the payments. They paid over Rs. 30 lacs to Vinay Awasthi from 4.12.2004 to 18.2.2011. The Kunthal Cottage is the self acquired property of petitioner No.1. The respondent was staying there with her husband. 4. It has been stated that the Court below has passed the order dated 31.8.2012 without appreciating the pleadings, documents and law applicable. The impugned order is based upon surmises and conjectures. The Court below without any pleading granted the relief of possession to the respondent wrongly, illegally. The evidence was not called, proper hearing was not given to the petitioners. The petition filed by the respondent is vague and suffers from material particulars. The Court below has not appreciated that the petition filed by the respondent was not maintainable. The respondent was never forced to leave matrimonial home. The respondent has filed the petition only to grab the property. The submission has been made for setting-aside the impugned order. 5. Heard and perused the record. The learned counsel for the respondent has taken preliminary objection that the petition is not maintainable in view of alternative remedy of appeal provided under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘Act’). The learned counsel for the petitioners has submitted that there is no domestic relationship between the respondent and the petitioners. The learned counsel for the respondent has taken preliminary objection that the petition is not maintainable in view of alternative remedy of appeal provided under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘Act’). The learned counsel for the petitioners has submitted that there is no domestic relationship between the respondent and the petitioners. The respondent is not an aggrieved person under the Act. The learned counsel for the petitioners has relied S.R. Batra and another vs. Smt. Taruna Batra AIR 2007 SC 1118 and Adil and others vs. State and another 2011 (1) Criminal Court Cases 843. The learned counsel for the respondent has supported the impugned order. 6. The Section 29 of the Act provides appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. The learned counsel for the petitioners has not denied that impugned order is appealable. He has submitted that remedy provided under the appeal is time consuming, the impugned order is patently illegal, therefore, the petition has been filed under Article 227 of the Constitution of India read with Section 482 Cr.P.C. for quashing impugned order. 7. In Miss Maneck Custodji Surjarji vs. Sarafazali Nawabali Mirza AIR 1976 SC 2446 , it has been held that the respondent had clearly a legal remedy available to him by way of an appeal against decree of the City Civil Court and that remedy was not only adequate but was more comprehensive than the one under Article 227 of the Constitution. The jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked. 8. In Shyam Kishore and others vs. Municipal Corporation of Delhi and another AIR 1992 SC 2279 , the Supreme Court has observed that resort to Articles 226 and 227 should be discouraged when there is an alternative remedy. A more satisfactory solution is available on the terms of the statute itself. In Surinder Singh vs. Inder Sain 1974 Cri. 8. In Shyam Kishore and others vs. Municipal Corporation of Delhi and another AIR 1992 SC 2279 , the Supreme Court has observed that resort to Articles 226 and 227 should be discouraged when there is an alternative remedy. A more satisfactory solution is available on the terms of the statute itself. In Surinder Singh vs. Inder Sain 1974 Cri. L.J. 1361 (HP) the contention of learned counsel for the petitioner therein was to consider the petition as one under Section 561-A of the old Code. The learned Single Judge observed that submission is a cry in despair. There is decidedly a remedy available to the petitioner and he should avail of that remedy. 9. In Avadh Narain Lal vs. State of Uttar Pradesh and another 1986 Cri. L.J. 1233, it has been held that inherent power under Section 482 Cr.P.C. being extraordinary and residuary power, is not available in regard to matters which have been specifically provided for under other provisions of the Code. As a general rule, the High Court would not exercise its power under Section 482, Cr.P.C. where any party could have, but did not, avail of the remedy. 10. It has not been denied even by the learned counsel for the petitioners that impugned order is appealable under Section 29 of the Act. The plea taken by the petitioners to file petition under Article 227 of the Constitution of India and Section 482 Cr.P.C. against the impugned order if allowed then it will have far reaching consequences. In that situation, the litigant instead of availing the remedy of appeal or other alternative remedy provided in statute would come directly to the High Court. In the present case there is no extraordinary situation to invoke Article 227 and Section 482 Cr.P.C. in the presence of alternative effective remedy of appeal provided under Section 29 of the Act against the impugned order. Therefore, without going into the contentions raised by the petitioners on merits, the petition is dismissed on the ground that the petitioners have alternative remedy to assail the impugned order. Cr.M.P.787 of 2012 is also disposed of in view of disposal of the main petition.