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2025 DIGILAW 21 (CHH)

Baldau Singh Thakur, S/o Shri Dhruv Singh Thakur v. Neetu Singh, W/o Shri Baldau Singh Thakur

2025-01-09

RAJANI DUBEY

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Order : (Rajani Dubey, J.) 1. The present petition has been filed under Section 482 of Cr.P.C. for recalling the order dated 04.07.2019 passed in CRR No. 1064/2017 whereby the maintenance amount was again enhanced to Rs.17,000/- per month by modifying the order dated 27.09.2017. 2. Briefly stated facts of the case are that vide order dated 27.09.2017 passed by the learned Additional Principal Family Judge, Bilaspur in M.J.C. No. 279/2017, the maintenance amount payable to the present respondents was enhanced from Rs. 10,000/- to Rs. 11,000/- per month. Being aggrieved by this order, the respondents herein filed Criminal Revision bearing CRR No. 1064/2017 before this Court and this Court vide order dated 04.07.2019 (Annexure P/1) enhanced the maintenance amount to Rs. 17,000/- per month by modifying the order dated 27.09.2017. The order passed in CRR No. 1064/2017 was exparte order as the present petitioner did not receive the notice of the case, therefore he filed petition bearing Cr.M.P. No. 2187/2019 for recalling the order passed in Cr.R. No. 1064/2017. The same was decided on 02.12.2019 (Annexure P/2). The petitioner herein still maintains that summons was not served upon him or his family members. Criminal Revision bearing Cr.R. No. 1064/2017 was decided on 04.07.2019 but before that in afresh M.J. C. No. 345/2018 instituted on 17.09.2018, again the Court of Additional Principle Judge Family Court, Bilaspur vide order dated 27.03.2019 (Annexure P/3) enhanced the maintenance amount from Rs. 11,000/- to Rs. 12,000/- per month (which was enhanced on 27.09.2017). While deciding the criminal revision bearing Cr. R. No. 1064/2017, the order dated 27.03.2019 passed by the learned Additional Principal Judge Family Court, Bilaspur was not brought before this Court although the present respondents had full knowledge about the said order. Hence, this Criminal revision has been filed by petitioner for recalling the order dated 04.07.2019 passed in CRR No. 1064/2017. 3. Learned counsel for the petitioner submits that the order passed in M.J.C. No. 345/2018 was not brought before this Court. By filing fresh application u/s 127 of Cr.P.C. in M.J.C. No. 345/2018, the respondents herein have admitted the earlier order passed in M.J.C. No. 279/2017 and the same was challenged in criminal revision bearing Cr.R. No. 1064/2017. From the order dated 27.03.2019, there is no mention of criminal revision pending before this Court. By filing fresh application u/s 127 of Cr.P.C. in M.J.C. No. 345/2018, the respondents herein have admitted the earlier order passed in M.J.C. No. 279/2017 and the same was challenged in criminal revision bearing Cr.R. No. 1064/2017. From the order dated 27.03.2019, there is no mention of criminal revision pending before this Court. In such circumstances, it can be presumed that the present respondents have accepted the earlier order passed in M.J.C. No. 279/2017 and when they have already accepted the order passed in M.J.C. No. 279/2017, they could not have challenged it at the same time by way of filing criminal revision bearing Cr. R. No. 1064/2017. This important material was not brought before this Court while deciding the criminal revision i.e. Cr.R. No. 1064/2017 and this important material goes to the root cause of the case, hence recalling of the order dated 04.07.2019 passed in Cr.R. No. 1064/2017 is necessary. Respondents have suppressed the material facts of the new order of enhancement passed in afresh application filed by them for enhancement and have obtained the order dated 04.07.2019 passed in CRR No. 1064 of 2017. As such, the order dated 04.07.2019 obtained by material suppression, needs to be recalled for proper adjudication of the case. The respondents have not approached before this Court with clean hand and by playing tricks have obtained the order dated 04.07.2019 as such, order dated 04.07.2019 needs to be recalled. 4. Learned counsel for the respondents submits that the respondents filed criminal revision bearing Cr.R No. 1064/2007 against the order dated 27.09.2017 in the year 2017 and due to long pendency of this petition, they were not aware of this petition and they again filed application under Section 127 of Cr.P.C. on 17.09.2018 for enhancement of maintenance amount awarded by order dated 27.09.2017 and the learned trial Court after recording the statements of both the parties passed order dated 27.03.2019. It is clear from the order-sheets passed in order dated 27.03.2019 that the applicants (respondents in the present petition) appeared before the learned trial Court but their counsel was not appeared before the learned trial Court. It is clear from the order-sheets passed in order dated 27.03.2019 that the applicants (respondents in the present petition) appeared before the learned trial Court but their counsel was not appeared before the learned trial Court. Respondent No.1 is wife of the petitioner and respondent No.2 is his son and they were not in contact with their lawyer of High Court who contested criminal revision i.e. CRR No. 1064/2017 on behalf of the respondents and this Court passed order on 04.07.2019 modifying the order dated 27.09.2017. It is clear from order dated 27.03.2019 that the learned trial Court also allowed the application under Section 127 of Cr.P.C. and enhanced the maintenance amount from Rs. 11,000/- to Rs. 12,000/- and this Court vide order dated 04.07.2019 passed in CRR No. 1064 of 2017 also enhanced the amount of maintenance from Rs.11,000/- to Rs.17,000/-. Before the learned Family Court, the respondents were not represented by any counsel. So, they did not inform their counsel who contested their case in the High Court. 5. Heard counsel for the parties and perused the material available on record. 6. It is clear from the record that against the order dated 27.09.2017 passed by learned Family Court in MJC No.279 of 2017, a criminal revision i.e. CRR No. 1064/2017 was filed by the respondents on 09.10.2017 and this petition was pending before this Court for 2 years and final order was passed on 04.07.2019 and before that, the petitioner filed application under Section 127 of Cr.P.C. before the learned Family Court on 17.09.2018 and the learned Family Court passed order on 27.03.2019 enhancing the maintenance amount. It is also clear from the order that the respondent herself was present before the Court at the time of passing of the said order and she was not represented by any counsel. 7. Respondent No.1 is wife of the petitioner and respondent No.2 is their son. This Court passed order on 04.07.2019 in CRR No. 04.07.2019 by taking into consideration the pay slip of petitioner and also looking to this fact that the petitioner is a government servant and in 2014, he was getting salary of Rs. 30,000/- per month and in 2017 his salary might have been increased. This Court passed order on 04.07.2019 in CRR No. 04.07.2019 by taking into consideration the pay slip of petitioner and also looking to this fact that the petitioner is a government servant and in 2014, he was getting salary of Rs. 30,000/- per month and in 2017 his salary might have been increased. Respondent also filed application under Section 127 of Cr.P.C. for enhancement of maintenance amount and before the learned trial Court, they filed salary slip of the petitioner which shows that he is getting salary of Rs. 44,000/- per month. Upon perusal of the order dated 04.07.2019 passed in CRR No. 1064 of 2017, it is evident that this petition was pending for 2 years in this Court and was decided on 04.07.2019. 8. Hon’ble Apex Court in the matter of Commissioner of Income Tax, Bombay Vs. Amritlal Bhogilal & Co.; 1958 SCC OnLine SC 59 held in para 10 as under:- “10. There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the Appellate Authority is the operative decision in law. If the Appellate Authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the Appellate Authority, the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.” 9. Hon’ble Apex Court in the matter of Mary Pushpam v. Telvi Curusumary & Ors.; [2024]1 S.C.R.11 held in paras 17 and 18 as under:- 17. The doctrine of merger is a common law doctrine that is rooted in the idea of maintenance of the decorum of hierarchy of courts and tribunals. The doctrine is based on the simple reasoning that there cannot be, at the same time, more than one operative order governing the same subject matter. The same was aptly summed up by this Court when it described the said doctrine in Kunhayammed & Ors. The doctrine is based on the simple reasoning that there cannot be, at the same time, more than one operative order governing the same subject matter. The same was aptly summed up by this Court when it described the said doctrine in Kunhayammed & Ors. v. State of Kerala & Anr.1: "44 (1) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the Law." 18. The legal position on Coordinate Benches has further been elaborated by this Court in State of Punjab & Anr. v. Devans Modern Breweries Ltd. & Anr.2: "339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. 340. In Halsbury's Laws of England (4th Edn.), Vol. 26 at pp. 297-98, para 578, it is stated: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow." 10. In light of above, in the present case also, the learned trial Court enhancing the maintenance amount, passed the order on 27.03.2019 and this Court passed order on 04.07.2019 in CRR No. 1064 of 2017 and enhance the maintenance amount, therefore, the order passed by the High Court would be final and operative. 11.Considering the facts and circumstances of the case, the law laid down by Hon’ble Supreme Court in the cases referred to above, the petitioner is directed to pay total amount of Rs. 17,000/- (Rs. 10,000/- respondent No.1 and Rs. 7,000/- to respondent No.2) per month as maintenance as per this Court’s order dated 04.07.2019 passed in CRR No. 1064/2017. 12. With above observations and directions, the petition stands disposed off.