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2013 DIGILAW 640 (CAL)

In the Matter of : Shambhu Nath Chakraborty v. .

2013-09-04

JOYMALYA BAGCHI

body2013
JUDGMENT Joymalya Bagchi, J. The affidavit of service filed in court today is kept on record. 2. The judgment and order dated December 17, 2012 passed by learned Additional District & Sessions Judge, Fast Track Court, Durgapur in Criminal Appeal No. 01/2012 affirming the judgment and order dated December 3, 2010 passed by the learned Judicial Magistrate, 3rd Court, Durgapur in Misc. Case No. 127/2009 under Section 12 of the Protection of Women from Domestic Violence Act, 2005, has been assailed in this application. 3. It appears that learned Magistrate while disposing of the application under the provisions of the Act of 2005 directed as follows: "That the case is allowed. The petitioner do get the reliefs as prayed for: (a) Protection order u/s 18 of the Act prohibiting (a) the respondents thereby to commit any further domestic violence upon the petitioner and (b) From entering in the place where the petitioner resides with her daughter; (c) communicate with the petitioner and her family; (d) alienating the stridhan articles of the petitioner; (b) Residence order u/s 19 directing the respondent to secure same level of alternative accommodation to the petitioner and pay the rent for the same. (c) Monetary reliefs u/s 20 of the act to the tune of Rs. 10,000/- as medical expenses. The respondents are further directed to pay a sum of Rs. 5000/- to the petitioner and Rs.6000/-to her minor female child as monthly maintenance, which is to be paid within the 15th day of each succeeding month. No other reliefs could be considered in this regard as the petitioner has not provided any document to substantiate her claim towards the respondents. (d) The respondents are further directed to pay a sum of Rs. 20,000/- as compensation under section 22 of the Act to the petitioner for the damages, injuries, mental agony and torture inflicted by him towards the petitioner. (e) Other reliefs claimed by the petitioner are hereby considered and rejected for want of proper substantive evidence." 4. The order passed by the learned Magistrate, as aforesaid, was appealed against before the learned Additional District and Sessions Judge at Durgapur, who granted an order of stay to the order impugned in the appeal on condition that the petitioner shall go on paying Rs. 3,500/- per month. The order passed by the learned Magistrate, as aforesaid, was appealed against before the learned Additional District and Sessions Judge at Durgapur, who granted an order of stay to the order impugned in the appeal on condition that the petitioner shall go on paying Rs. 3,500/- per month. By the order impugned in this revisional application, the learned Sessions Judge has dismissed the appeal on the ground that the interim order had not been complied with. 5. Learned advocate appearing on behalf of the petitioner submits that the appellate court has not dismissed the appeal on merits but has turned down the prayer of the petitioner on the ground that the interim order passed by the appellate court had not complied with. He further submits that the interim order, in fact, have been complied with. 6. I am of the opinion that in the event the interim order is not complied with, the said order is liable to be vacated and the order appealed against may be executed in accordance to law. However, failure to comply with the terms of the interim order cannot be a ground to dismiss the appeal. I have perused the impugned order and find that the appeal court has not dealt with on merits. 7. Accordingly, I set aside the impugned order and remand the matter before the learned Additional District & Sessions Judge at Durgapur, who shall hear the appeal on merits and pass final order on the same within 30 days from the date of communication of this order to him. 8. I, however, clarify that the order passed by the learned Magistrate shall not be treated as stayed in the meantime and the petitioner would be liable to pay in accordance with such order during pendency of the aforesaid appeal. With the aforesaid direction, the application is disposed of.