Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 773 (AP)

K. N. Rao v. K. Saileswari

2020-12-07

BATTU DEVANAND

body2020
ORDER : Battu Devanand, J. 1. This Second Appeal is filed against the judgment and decree, dated 24.02.2020 in A.S. No. 60 of 2017 passed by the Principal District Judge, Nellore in confirming the judgment and decree, dated 03.05.2017 in O.S. No. 79 of 2016 passed by I Additional Junior Civil Judge, Nellore. 2. The appellant is plaintiff and the respondent is defendant in the suit proceedings. 3. The facts of the case are that the plaintiff filed the suit in O.S. No. 79 of 2016 for declaration that the order passed in MC. No. 240 of 2009 on the file of the Court of IV additional Judicial Magistrate of First Class, Nellore is null and void and not binding on the plaintiff, in view of the decree, dated 17.06.1981 passed in O.S. No. 621 of 1979 on the file of the Principal District Munsif, Nellore. The defendant filed Written Statement in O.S. No. 79 of 2016 contested the matter. Having heard both the learned counsel and upon perusing the material available on record, the trial Court dismissed the suit on 03.05.2017. 4. Aggrieved by the judgment and decree of the trial Court in O.S. No. 79 of 2016, dated 03.05.2017, the plaintiff filed A.S. No. 60 of 2017 on the file of the Court of Principal District Judge, Nellore. The 1st appellate Court after hearing both the learned counsel and on appreciation of evidence on record, by its judgment and decree, dated 24.02.2020 in A.S. No. 60 of 2017 dismissed the appeal. Aggrieved by the judgment and decree, dated 24.02.2020, the present Second Appeal was filed. 5. Heard Sri K.S. Gopala Krishnan, learned counsel for the plaintiff. 6. Learned counsel for the plaintiff submits that the Courts below are erroneously viewed and took a blatantly erroneous and perverse view and that the reasons given in the respective decree and judgments are unsound and untenable and are based on purely conjectures and surmises and also contrary to the evidence on record and thereby resulted into grave injustice to the plaintiff warranting interference of this Court in this appeal for the ends of justice. 7. Having heard the submissions of the learned counsel for the appellant and on perusing the material available on record, most of the facts of the case are admitted. The marriage between the appellant and the respondent took place on 04-06-1972. There were disputes between them. 7. Having heard the submissions of the learned counsel for the appellant and on perusing the material available on record, most of the facts of the case are admitted. The marriage between the appellant and the respondent took place on 04-06-1972. There were disputes between them. The respondent herein filed O.S. No. 621 of 1979 on the file of the Principal District Munsif, Nellore, and it ended in compromise on 17-09-1981. As per the compromise, the plaintiff has to pay maintenance at Rs. 140/- per month. The respondent agreed to forego her right of claiming future higher maintenance. The respondent filed I.A. No. 1762 of 2006 in O.S. No. 621 of 1979, seeking enhancement of maintenance, and it was dismissed on 16.07.2009. Later, the respondent filed M.C. No. 24 of 2009 before the VI Additional Judicial Magistrate of First Class, Nellore, suppressing the dismissal of I.A. No. 1762 of 2006. Rs. 5,000/- was granted as maintenance in M.C. No. 24 of 2009. Against the said order, the appellant filed Criminal Revision Petition No. 19 of 2020 before the VI Additional District Judge, Nellore, which was dismissed on 21.06.2010. The appellant filed Petition under Section 482 Cr.P.C. challenging the order of the VI Additional District Judge, Nellore and it was dismissed on merits on 23.03.2011. The respondent filed Crl. M.P. No. 1105 of 2014 in M.C. No. 24 of 2009 seeking enhancement of maintenance. 8. The appellant filed a suit in O.S. No. 79 of 2016 for declaration that the order passed in M.C. No. 24 of 2009 on the file of the IV Additional Judicial Magistrate of First Class, Nellore, is null and void and not binding on the plaintiff, in view of the decree, dated 17.06.1981 passed in O.S. No. 621 of 1979, on the file of the Principal District Munsif, Nellore. The said suit was dismissed. Against the same, the appellant filed A.S. No. 60 of 2017 on the file of the Principal District Judge, Nellore. The 1st Appellate Court dismissed the said A.S. No. 60 of 2017 by its judgment, dated 24.02.2020. Aggrieved by the same, the present Second Appeal is filed. 9. The appellant and respondent are aged 67 an 63 years respectively and their marriage was took place on 04.06.1972 and it appears from the record that they both are living separately since 28.12.1972. Aggrieved by the same, the present Second Appeal is filed. 9. The appellant and respondent are aged 67 an 63 years respectively and their marriage was took place on 04.06.1972 and it appears from the record that they both are living separately since 28.12.1972. For only six months they lived as wife and husband after their marriage. For the last 48 years, they are living separately and the respondent has to survive with the meager amount being paid towards her maintenance by the appellant. In the year 1979 she was awarded an amount of Rs. 140/- per month in O.S. No. 621 of 1979. The appellant at that time was working as a Teacher in M.K.R. High School, Indukurupet Village and in the month of February, 2007, he retired from service and is getting pension besides having movable and immovable properties. It appears as it is very difficult to maintenance the respondent herself with a meager amount of Rs. 140/- per month which is being paid towards maintenance by the appellant, the respondent filed an application under Section 125 of Cr.P.C. and Rs. 5,000/- per month was granted as maintenance in M.C. No. 24 of 2009. 10. It appears against the said order the appellant filed Criminal Revision Petitions before the District Courts and High Court. In the opinion of this Court, due to the reason that the respondent is not in a position to maintain herself at the age of 63 years, with meager amount of maintenance of Rs. 140/- per month, she filed M.C. No. 24 of 2009 under Section 125 of Cr.P.C. for enhancement of maintenance. 11. Considering the age of both parties to put a stop for this un-ended litigation between this two old aged separated persons and as the order under challenge in this appeal is of the concurrent finding of both the trial Court, and the 1st appellate Court and there is no any substantial question of law raised to entertain this Second Appeal and the correctness of findings of facts cannot be canvas in a Second Appeal, this Court holds that there are no valid and legal grounds to interfere with the well founded concurrent findings of trial Court as well as 1st Appellate Court. 12. Accordingly, this Second Appeal is dismissed. There is no order as to costs. Miscellaneous petitions pending, if any, in this second appeal shall stand closed. Appeal Dismissed.