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2016 DIGILAW 319 (JK)

Khurshid Ahmad Bhat v. Sofia Mudasir

2016-06-06

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This appeal is preferred against the order of the Writ Court made in OWP No. 30/2016, dated 05.04.2016, wherein the appellant has prayed to quash the maintenance petition filed by the respondent before the Judicial Magistrate 1st Class (City Munsiff), Srinagar, order dated 14.06.2014 awarding interim maintenance of Rs. 5000/- and order dated 08.12.2015 passed by the 3rd Additional Sessions Judge, Srinagar, affirming the order dated 14.06.2014 of the Judicial Magistrate 1st Class in Criminal Revision No. 16/R. The writ petition was dismissed by the writ court on the ground of non-maintainability granting liberty to the petitioner to challenge the order in appropriate proceedings against which this appeal is preferred. 2. The maintenance petition was admittedly filed by the respondent under Section 488 Cr.P.C. and interim maintenance order was passed by the Learned Judicial Magistrate in exercise of powers under Section 488 Cr.P.C. The said order was questioned by the appellant by filing criminal revision before the 3rd Additional Sessions Judge, Srinagar, which was also dismissed. 3. The maintainability of the writ petition challenging the orders passed by the civil court was already considered by Hon'ble the Supreme Court in the decision reported in AIR 2015 SC 3269 (Radhey Shyam & Anr. v. Chhabi Nath & Ors.) wherein the three judge bench considered the issue as to whether an order of civil court was amenable to writ jurisdiction under Article 226 of the Constitution. In the said case an interim order of civil court in a pending suit was sought to be quashed through writ proceedings before the Allahabad High Court and interim order granted originally having been vacated, Special Leave Petition was filed and Hon'ble the Supreme Court after analyzing the earlier decisions on the issue including the constitutional bench judgment reported in AIR 1967 SC 1 (Naresh v. State of Maharashtra) and various other decisions held that the writ petition challenging civil court's order under Article 226 of the Constitution of India i.e., Section 103 of the Jammu & Kashmir State Constitution, is not main-tamable and the orders can be questioned under the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, i.e. Section 104 of the Jammu & Kashmir State Constitution. The said principal is equally applicable against the orders passed by the civil court. 4. The said principal is equally applicable against the orders passed by the civil court. 4. In this case the appellant challenged the order of the Learned Judicial Magistrate 1st Class before the 3rd Additional Sessions Judge, Srinagar, by filing Criminal Revision No. 16/R and if he is not satisfied with the said order, he can very well file the petition under Section 561-A Cr.P.C. and thus the writ court was justified in dismissing the writ petition granting liberty to the appellant to challenge the order in appropriate proceeding. Further it is to be remembered that writ remedy is only if there is no efficacious, alternate remedy available to the petitioner. In this case an efficacious, alternate remedy as stated supra is available. 5. The contention of the learned counsel for the appellant that even if the writ petition is not maintainable, the writ court ought to have converted the writ petition as a Criminal Original Petition by treating the writ petition under Section 561-A Cr.P.C. The appellant, if at all, raise such a plea nothing prevented him to file petition to convert the petition under Section 561-A Cr.P.C. The appellant cannot contend that while hearing the writ petition if the writ court does not found the writ petition maintainable, the writ court is bound to convert the same in to Criminal Original Petition under Section 561-A Cr.P.C. The procedure for filing Criminal Original Petition, numbering the same and the jurisdiction having been limited, the contention raised by the appellant seeking to set aside the order of the writ court and convert the writ petition as one having been filed under Section 561-A Cr.P.C. cannot sustain and the appeal is dismissed. No costs.