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2013 DIGILAW 1620 (RAJ)

Sunita Agarwal v. State of Rajasthan Anr.

2013-09-16

R.S.CHAUHAN

body2013
JUDGMENT 1. - An application has been filed for recalling the order dated 25.2.2013 passed by this Court whereby this Court had dismissed the revision petition filed by the applicants Mrs. Sunita Agarwal and Ms. Aesh Agarwal. 2. By order dated 12.3.2013 this Court had issued notice to respondent no. 2, Mr. Rajesh Agarwal, the husband in the present case. According to the report of the Registry dated 18.4.2013 the notices of the revision petition were deemed to be served upon Mr. Rajesh Agarwal as they were accepted by his father. Hence the service of notice were deemed to be complete. By order dated 30.4.2013 this Court had directed the Deputy Registrar (Judl.) to send a notice to Mr. Rajesh Agarwal that in case he does not appear personally, or through a counsel of his choice on the next date, this Court shall have no other option but to proceed ex-parte against him. A copy of the said order was also sent to Mr. Rajesh Agarwal. On 31.5.2013 this Court had again directed the Deputy Registrar (Judl) to send a notice through registered AD to Mr. Rajesh Agarwal informing him that he is directed to appear before this Court, either personally, or through a counsel of his choice on 8.7.2013, failing which, this Court shall have no other option but to proceed ex-parte against him. Consequently, a registered notice was sent by the Deputy Registrar (Judl.) to Mr. Rajesh Agarwal. According to the order dated 8.7.2013 this Court waited for the receipt of the notice for a period of three weeks. According to the order dated 6.9.2013, with the lapse of one month, this Court presumed that the registered AD must have been received by Mr. Rajesh Agarwal. Thus the Court observed that it has no further option, but to proceed ex-parte against him in future. The case is listed today but even today, neither Mr. Rajesh Agarwal, nor a counsel of his choice has appeared before this Court. Therefore, this Court had no other option, but to proceed ex-parte against him. 3. Mr. Himmat Singh, the learned counsel for the applicants, has raised the following contentions before this Court : firstly, certain glaring facts could not be brought to the notice of this Court at the time when the order dated 25.2.2013 was passed by this Court. 4. Therefore, this Court had no other option, but to proceed ex-parte against him. 3. Mr. Himmat Singh, the learned counsel for the applicants, has raised the following contentions before this Court : firstly, certain glaring facts could not be brought to the notice of this Court at the time when the order dated 25.2.2013 was passed by this Court. 4. Secondly, relying on the case of Jagdeep Singh v. Manprit Kaur & another, 2010 (2) R.C.C. 548 , the learned counsel has contended that even when the husband was earning merely Rs. 54,000/- per annum, this Court had granted a maintenance of Rs. 5,500/-. However, in the present case while Mr. Rajesh Agarwal is earning about Rs. 1,50,000/- per annum according to the learned Tribunal, even then this Court has not enhanced the maintenance. Instead this Court had upheld the maintenance order dated 16.8.2012 whereby the learned Family Court had granted a compensation of merely Rs. 5,000/-. 5. Thirdly, relying on the case of Chaturbhuj v. Sita Bai, 2008 (1) Crimes 1 (SC) , the learned counsel has contended that the wife should be maintained by the husband which would permit her to maintain her status consistent with the status of her family. 6. Lastly, relying on the case of Shail Kumari Devi & Another v. Krishan Bhagwan Pathak alias Kishun B. Pathak, AIR 2008 SC 3006 , the learned counsel has contended that it is not necessary for the learned Family Court to give reasons for allowing the maintenance from the date of the application. In fact, what is required of the Family Court is to merely give reasons for granting the maintenance. In the present case, the learned Family Court has not given any reason whatsoever for granting the maintenance from the date of the order, instead of from the date of filing of the application. Therefore, this Court was not justified in upholding the impugned order dated 16.8.2012 passed by the Family Court. Thus, according to the learned counsel, the order dated 25.2.2013 deserves to be recalled. 7. Therefore, this Court was not justified in upholding the impugned order dated 16.8.2012 passed by the Family Court. Thus, according to the learned counsel, the order dated 25.2.2013 deserves to be recalled. 7. In the case of Asit Kumar Kar v. State of West Bengal & Others, AIR 2009 SC (Supp) 282 , while differentiating between recalling of an order and reviewing of an order, it was opined by the Hon'ble Supreme Court that "while in review petition, the Court considers on merits, where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but, simply recalls an order which was passed without giving an opportunity of hearing to an affected party". While recalling of an order the Court does not enter into the pros and cons with regard to the merit of the case, whereas in a review the Court is required to enter into the merits of the case. A bare perusal of the contentions raised by the learned counsel would reveal that the applicant wants this Court to review the order dated 25.2.2013, instead of recalling the same. For, the Court is being invited to enter into the merits of the case - a province exclusively reserved for review of an order and not for its recalling. Needless to say, under the Cr.P.C. the power of review does not exist. Therefore, in the garb of recalling of an order, this Court cannot clothe itself with a power never bestowed upon it by the Code. 8. Further merely because certain facts, glaring or otherwise, were not brought to the notice of this Court, it would not permit this Court to review the order dated 25.2.2013. 9. In catena of cases, the Hon'ble Supreme Court has held that a judgment should not be treated as a provision of law. For each judgment depends on its own peculiar facts and circumstances. Moreover, a judgment cannot be read by inference especially when the precedent does not lay down a principle of law, but is based on its own peculiar facts and circumstances. Thus, merely because in Jagdeep Singh (supra), this Court had granted a maintenance of Rs. 5,500/-, such an order does not become a binding precedent upon this Court. Moreover, the said judgment is distinguishable on factual matrix itself. Thus, merely because in Jagdeep Singh (supra), this Court had granted a maintenance of Rs. 5,500/-, such an order does not become a binding precedent upon this Court. Moreover, the said judgment is distinguishable on factual matrix itself. According to the facts of that case, the appellant Jagdeep Singh had pleaded before the Family Court that he was merely earning Rs. 54,000/-. He had supported his plea by submitting his income-tax returns. However, in his cross-examination, he admitted that he maintains a Honda City car. Furthermore, that he is a property dealer, although he is not a colonizer. Considering the business of property dealing that he was engaged in, the learned Trial Court concluded that the income-tax return does not reflect the true income being earned by him. It is in these circumstances, that the learned Trial Court in the said case, had granted a maintenance of Rs. 5,500/- to the wife and to the child. Agreeing with the logic given by the learned Trial Court, this Court had upheld the maintenance order dated 22.2.2006. 10. However, in the present case, neither the learned Family Court, nor this Court has concluded that the income-tax returns submitted by husband do not reflect his true income. In fact, the learned Family Court has concluded that only the income-tax return, filed by the wife, reflect the true income of her husband. More importantly the learned Family Court had increased his income from Rs. 1,10,000/- per annum to 1,50,000/- per annum for the year 2012. Considering the fact that the learned Family Court took Mr. Rajesh Agarwal's income as Rs. 1,50,000/- per annum, it granted a maintenance of Rs. 5,000/- i.e. Rs. 60,000/- per annum to the wife and the child. It is in this background that by order dated 25.2.2013, this Court had upheld the order dated 16.8.2012 and had dismissed the revision petition filed by the applicant. 11. Although the principle laid down by the Hon'ble Supreme Court in the case of Chaturbhuj (supra) is unquestionable, but no evidence has been brought by the present petitioner-applicant to show that the amount of maintenance given to her would not permit her to lead a lifestyle consistent with the status of her family. Therefore, even the case of Chaturbhuj (supra) does not buttress the case of the present applicants. 12. Therefore, even the case of Chaturbhuj (supra) does not buttress the case of the present applicants. 12. Lastly, in the case of Shail Kumari Devi & another (supra), the Hon'ble Supreme Court has noticed the provisions of Section 125(2) Cr.P.C. The Apex Court has concluded that for awarding maintenance from the date of an application merely an express order is necessary. However, no special reasons are required to be recorded by the Court while granting maintenance from the date of application. Therefore, the contention that no special reasons have been given by the learned family Court for granting the maintenance from the date of the order is misplaced : firstly, because there is no requirement of law under Section 125(2) Cr.P.C. that while granting the maintenance from the date of the order any reasons need to be given. Secondly, the requirement laid by the Apex Court is that reasons need to be given for ordering payment of the maintenance per se. A bare perusal of the impugned order dated 16.8.2012 clearly reveal that the learned Family Court has given ample cogent reasons for granting a maintenance to the applicants. 13. For the reasons stated above, this Court does not find any merit in the application. The application is hereby dismissed.Application dismissed. *******