THE HONOURABLE Dr.JUSTICE
B.SIVA SANKARA RAO
CRIMINAL
REVISION CASE No.1686 of 2014
ORDER:
This Criminal Revision Case is
filed under Sections 397 and 401 Cr.P.C. by the Revision petitioners(Respondents
1 to 3-husband and parents-in-law of the petitioner in Crl.M.P.No.550 of 2014
as well as in DVC No.10 of 2009), having been aggrieved by the order, dated 28.07.2014
in Crl.M.P.No.550 of 2014 in DVC No.10 of 2009 passed by the learned Judicial
Magistrate of First Class, Spl. Mobile Court-cum-XI Metropolitan Magistrate,
Cyberabad, L.B.Nagar.
2. The brief facts of the case are that the petitioner-wife filed the
petition in Crl.M.P.No.550 of 2014 under Section 125(3) read with Section 31 of
the Protection of Women from Domestic violence Act,2005 praying to direct 1st
respondent-husband to pay an amount of Rs.4,60,000/- to her as house rent from 31.07.2006 to 02.03.2013
(date of petition) and to punish her husband (1st respondent) in
case of his failure to pay the said amount.
The respondent-husband filed counter for himself and also on behalf of
his parents-respondents 2 and 3 that he is paying a sum of Rs.8,000/- per month
towards maintenance of petitioner-wife and minor child in compliance of the
orders passed by the appellate Court in Criminal Appeal No.112 of 2010 and 2nd
respondent-mother-in-law of petitioner is paying a sum of Rs.10,000/- per month
towards residential accommodation and rent in compliance of the orders passed
by the Division Bench of the High Court in ASMP No.2795 of 2012 in ASMP No.2352
of 2012 in A.S.No.802 of 2012 dated 10.04.2013, totaling to a sum of
Rs.18,000/- per month regularly and there are no dues as on the date of filing
his counter.
3. The trial Court’s impugned order reads that as per the petitioner she
is entitled to Rs.3,000/- towards her maintenance, Rs.5,000/- towards the
maintenance of minor child, Rs.5,000/- towards rent from the date of filing the
main DVC case, that as per the orders of the High Court in A.S.M.P.No.2795 of
2012, the respondent is liable to pay a sum of Rs.10,000/- from the date of
eviction of the petitioner from the premises of 2nd respondent. On
the other hand, the case of the respondent is that he is paying maintenance at
Rs.8,000/- p.m.(Rs.3,000/- to the petitioner and Rs.5,000/- to the minor child)
as per the orders of the appellate Court and now he is ready to pay the amount
at Rs.10,000/- p.m. towards the rent to the petitioner from the date of her
eviction from the premises of 2nd respondent till date as ordered in
A.S.M.P.No.2795 of 2012. The trial Court from the rival contentions observed
that admittedly, 2nd respondent(mother-in-law of the DVC petitioner)
filed a suit for eviction before the VII Additional Senior Civil Judge, Ranga
Reddy district in O.S.No.1824 of 2006 and obtained decree for eviction of the
petitioner herein from her house and the petitioner preferred an appeal before
the High Court. Subsequently, she was evicted from the premises owned by 2nd
respondent herein(pursuant to the order in ASMP No.2795 of 2012).
3-b. For better appreciation, the learned trial Judge reproduced the
reliefs granted by that Court, Appellate Court and the Honble High Court of
A.P. as follows:-
DVC No.10/2009:
a) The 1st respondent is hereby directed to pay an
amount of Rs.5,000/- to the petitioner and her daughter towards their
maintenance including educational and medical expenses of her daughter from the
date of this order as per Section 20(1)(d) of protection of Women from Domestic
Violence Act, 2005 and the said amount shall be paid to the petitioner directly
by obtaining a valid receipt or acknowledgment from her on or before 10th
day of every succeeding month,
(b) The petition against respondent Nos.2and 3
is hereby dismissed.
D.V.Crl. Appeal No.112 of 2010:
a) the 1st respondent is directed
to pay a sum of Rs.5,000/- towards rent for the separate residential
accommodation of the petitioner and her daughter from the date of her removal
from the possession of the house wherein she is residing which belongs to 2nd
respondent in case that the suit filed by 2nd respondent is decreed.
b) the 1st respondent is directed to pay a sum of
Rs.3,000/-(Rupees three thousand only) towards separate maintenance to his wife
and a sum of Rs.5,000/-(Rupees five thousand only) towards separate maintenance and educational
and medical expenses of daughter Kum.Samhitha from the date of the petition
respectively.
3-c. Without explaining to this Court as to how she came to calculation
at Rs.4,60,000/- towards the relief of rent, in para-9 of the petition, the
petitioner has stated “I submit that the
respondent/1st respondent is liable to pay an amount of
Rs.4,60,000/-(four lakhs sixty thousand only) from 31.07.2006 to .03.2013, if fails to pay the said amount to
punish the respondent/1st respondent in the interest of justice.”
3-d. The trial Court further held that it received the orders of the
High Court in Crl.R.C.No.1085 of 2013 on 03.07.2014 i.e. four months after
filing of this petition (Crl.M.P.No.550 of 2014) and on the next day of hearing
i.e. on 16.07.2014 only the Court had an opportunity to follow the directions
of the High Court. The High Court observed that ‘since the present revision is
filed by the petitioner questioning the orders passed by the Courts below and
also for enhancement of maintenance, the controversy is clarified by directing
the 1st respondent to pay a sum of Rs.8,000/- to the petitioner in
addition to Rs.5,000/- already awarded by the trial court and Rs.10,000/-
ordered by the Division Bench of the trial Court in A.S.M.P.No.2795 of 2012 in
A.S.M.P.No.2352 of 2012 in A.S.No.802 of 2012”.
3-e. At the end of the of para-15 of the Judgment, the High Court
extracted the order in vacate stay petition filed by the petitioner herein vide
ASMP No.2795 of 2012, which is as follows:-
“…… Having regard to the facts and
circumstances of the case, the interim order dated 03.10.2012 in ASMP No.2352
of 2012 is vacated. It is directed that
in case, the appellant vacates and delivers the vacant possession of the
property to the 1st respondent, within eight weeks from today, the latter
shall be under obligation to pay a sum of Rs.10,000/- per month, towards
expenditure that may be incurred by commencing from the month, in which the possession
is delivered. This arrangement shall be subject to the result of the appeal and
without prejudice to the rights of the parties.”
The
High Court keeping in view of the orders passed on 29.11.2003 in C.A.No.795 of
2013 in C.C.No.1606 of 2013 with regard to the eviction of the petitioner from
the property of 2nd respondent, observed that “In view of the orders
passed by this Court, the question of ranting residential order in favour of
the petitioner would not arise. In fact, the Division Bench of this Court took
sympathetic view and ordered the respondents to pay a sum of Rs.10,000/- per
month towards accommodation. That being the position, the main relief which is
sought for in the present petition is liable to be rejected.”
3-f. At the end of para No.16, the Hon’ble High Court gave findings that
“ Since both the Courts below have appreciated the evidence and came to the
conclusion that there was no harassment on the part of the respondents 1 to 3
and in view of the findings arrived at with regard to the residence claimed by
the petitioner under Section 19 of the Act, I am of the view that there are no
merits in the revision and the same is disposed of by clarifying the order to
the extent indicated above”.
3-g. The trial Court further held
that, “with great respect to the orders of the Hon’ble High Court of A.P., this
Court is of the view that the Hon’ble High Court enhanced the maintenance
amount directing the 1st respondent to pay a sum of Rs.8,000/- as
awarded by the appellate Court in addition to Rs.5,000/- already awarded by the
trial Court and that the main relief which was sought for in the revision is
liable to be rejected.”
3-h.
The trial Court further held that the respondents are liable to pay a sum of
Rs.8,000/- (Rs.3,000/- towards the maintenance of the petitioner and Rs.5,000/-
towards maintenance of the minor child) and Rs.5,000/- as enhanced and
clarified by the High Court, the petitioner is at liberty to recover the amount
of Rs.10,000/- as ordered in ASMP No.2795 of 2012 in a separate proceedings,
that in the present petition, the petitioner failed to explain as to how she
calculated the amount towards the rent, her plea is that she is entitled to a
sum of Rs.5,000/- towards the rent as ordered by the appellate Court. According
to the memo of petitioner, dated 05.06.2014, respondent is due to pay a sum of
Rs.3,16,000/- till the month of May,2014, that the date of filing the main case
is 16.06.2009 the total months from 16.06.2009 till 15.07.2014 are 61 months. The
respondent is due to pay Rs.13,000/-per month (Rs.3,000/-+Rs.5,000/-+
Rs.5,000/-), amounting to Rs.7,93,000/- and now the respondent is due to pay a
sum of Rs.3,29,000/- (Rs.7,93,000-(minus) Rs.4,64,000/-). On 23.07.2014, the
respondent filed a statement in proof of payments made by him mentioning the
demand draft numbers. According to him, he paid a total sum of Rs.5,01,000/-
excluding the payments of Rs.10,000/- to be paid in Civil Appeal and he is due
to pay Rs.2,92,000/-(Rs.7,93,000/- -(minus) Rs.5,01,000/-). After receiving the order of the High Court
the respondent did not pay the enhanced amount of Rs.5,000/- which comes to
Rs.3,05,000/-(61 months x Rs.5,000/-). Further he did not pay the earlier
maintenance of Rs.8,000/- for the period from 16.04.2014 to 15.07.2014.
Therefore, the respondent is liable to pay a total sum of Rs.3,29,000/- as on
15.07.2014. On the last date of adjournment, the respondent undertaken to pay
the due amount according to him, but failed to appear before the Court, hence ordered
issuance of warrant to produce him before the Court to hear about the payment
and posted the matter to 08.08.2014.
4. Aggrieved by the said order, the
respondents of the Crl.M.P.No.550 of 2014 preferred this revision with the
contentions that the orders passed by
the trial Court is contrary to the orders passed by the High Court in Criminal
Revision No.1085 of 2013, that the trial court failed to appreciate that the
DVC No.10 of 2009 filed by the 1st respondent was disposed with a
direction to pay an amount of Rs.5,000/- to the respondent and her daughter,
however, the same was challenged by way of appeal by the 1st
respondent herein in Crl.Appeal No.112 of 2010, the said appeal was allowed by
enhancing to Rs.3,000/- towards separate maintenance to the 1st
respondent herein and Rs.5,000/- towards separate maintenance, education and
medical expenses for 1st respondent’s daughter from the date of
petition, and further directed to pay a sum of Rs.5,000/- towards rent for
separate residence from the date, the 1st respondent is removed from
the possession by way of decree.
Accordingly decree in O.S.No.1824 of 2006 was passed in favour of the
mother-in-law (2nd petitioner) and the 1st respondent
herein got evicted on 04.12.2013. Therefore the 1st respondent is
entitled for rents from 04.12.2013 but not from 2009. The said appeal was also challenged by the 1st
respondent before the High Court in Criminal Revision No.1085 of 2013, the same
was also disposed of by upholding the judgment of the Appellate Court with a
direction to pay a sum of Rs.8,000/- towards maintenance and rent of Rs.5,000/-
to be paid from the date, the 1st respondent is vacated. The Court
below allowed the petition filed by the 1st respondent directing to
pay the arrears of rent from filing of the petition, that the trial Court ought
to have seen that the 1st respondent herein got evicted by way of a
decree in O.S.No.1824 of 2006, therefore, the 1st respondent is not entitled
to receive any rental amount of Rs.5,000/- from the date of petition, that the
trial Court erred in coming to conclusion that there was an enhancement of
Rs.5,000/- and arrears are outstanding which the petitioner is not liable to
pay, that the trial Court though held that the 1st respondent herein
did not explain the arrears of rent still ordered to pay the arrears of
Rs.3,05,000/- in M.P.No.550 of 2014 dated 28.07.2014, which is contrary to the
orders passed by the High Court, that the trial Court failed to examine the
orders passed by the High Court filed by the 1strespondent in Crl.R.C.No.1085
of 2013, hence to call for the records and set aside the order in
Crl.M.P.No.550 of 2014 in D.V.C.No.10 of 2009 dated 28.07.2014 of the trial Court.
The learned counsel for the revision-petitioner reiterated the same during
course of hearing.
5. Whereas, it is the contention of
the 1st respondent to the revision(DVC petitioner) that the impugned order no way requires
interference for this Court while sitting in revision, hence to dismiss the
same.
6. Perused the material on
record.
7.
Now the points that arise for consideration are:
1.
Whether the impugned order in Crl.M.P.No.550 of 2014 in DVC No.10 of 2009 on
the file of the Judicial Magistrate of First Class, Spl. Mobile Court-cum-XI
Metropolitan Magistrate, Cyberabad, at LB Nagar, is unsustainable and requires
interference by this Court while sitting in revision, if so, with what
observations?
2.
To what result?
Point
No.1:
8. The relationship between the parties is not
in dispute. It is also not in dispute that in DVC No.10 of 2009 the husband of
the DVC petitioner(R1) was directed to pay Rs.5,000/- to the DVC Petitioner and
her minor daughter towards their maintenance including educational and medical
expenses of the daughter from the date of order with a direction to pay by 10th
of every succeeding month. There was no order in the DVC case so far as the DVC
petitioner’s parents-in-law(R2 and R3) concerned. In the Crl.A.No.112 of 2013
filed by the DVC petitioner, the DVC-1st respondent (husband of DVC-petitioner)
was directed to pay Rs.5,000/- towards rent for the separate residential
accommodation of the DVC petitioner and her daughter from the date of her
eviction/vacation pursuant to the suit claim in O.s.No.1824 of 2006 filed by
DVC 2nd respondent –cum-mother-in-law of the DVC petitioner and also
directed the DVC 1st respondent/husband to pay Rs.3,000/- towards
maintenance to the wife and Rs.5,000/- towards maintenance, medical and
educational expenses to the minor child from the date of DVC-petition i.e.
16.06.2009 respectively(modifying from Rs.5,000/- to Rs.8,000/- and from date
of order to date of petition). It is to
say the DVC No.10 of 2009 order was merged with the Crl.A.No.112 of 2013
pursuant to which the maintenance payable by the DVC 1st
respondent/husband to the wife is Rs.3,000/- per month and to the minor child
is Rs.5,000/- from the date of DVC petition filed on 16.06.2009. It is in addition to that pursuant to the
appellate Court’s order supra from the date of the eviction/vacation of the
premises by the DVC petitioner, in the suit filed by her mother-in-law DVC 2nd
respondent pursuant to the decree in O.S.No.1824 of 2006 the DVC 1st respondent/husband also liable to pay
Rs.5,000/- for separate residential
accommodation to her and to the minor daughter. The order is crystal clear in this regard and
it is important to note that pursuant to the order in A.S.M.P.No.2795 of 2012
in the appeal filed by the DVC petitioner in A.S.No.802 of 2012 against the
eviction decree passed in O.S.No.1824 of 2006 in favour of the plaintiff
mother-in-law of the DVC-petitioner, there was interim stay against the
eviction and subsequently the very order
supra there was a modification from the mother-in-law the respondent to the
appeal filed by the daughter-in-law (DVC petitioner) to pay Rs.10,000/- p.m.
towards rent from the date of her vacating the premises and pursuant to which
she vacated on 10.04.2013. There is no dispute on these facts. It is important
to note that, the said vacation is by mutual understanding and not by execution
against will of the J.Dr. However, there
is no such difference made out in the Crl.A.No.112 of 2013 order but for saying
from date of eviction or vacation, which may mean outcome to involuntary act of
J.Dr. by execution against her.
9. It is equally important to note that the DVC
case was filed not only against the husband but also against the in-laws including
the D.Hr. in O.S.No.1824 of 2006. Even
the DVC claim against the in-laws ended in dismissal by order in DVC No.10 of
2009; the appeal filed by the DVC petitioner impugning the quantum was against
all the three respondents which includes not only her husband but also her
in-laws and there was the modified order supra, no doubt the direction is against
the DVC appeal 1st respondent/husband. It is also important to note that, as per the
A.S.M.P.No.2795 of 2012 order of the 1st appellate Court in the A.S.No.802
of 2012 to pay Rs.10,000/- from the undertaking given by the plaintiff-decree
holder of the suit O.S.No.1824 of 2006 as respondent to the appeal, not clear
to say it is in addition to Rs.5,000/-
payable by the husband for separate accommodation or it is inclusive of it. In
fact the parties to the lis if at all to seek any clarification, it is only
from the Court which passed the order in the pending appeal A.S.No.802 of 2012
for the reason the DVC petitioner cannot have double benefit.
10.
From the above background now coming to what is the amount due in this matter
sought for execution by the DVC petitioner in this Crl.M.P.No.550 of 2014
concerned, the amount of Rs.8,000/- p.m. is payable from DVC petition filed on
16.06.2009 towards maintenance to the wife and minor daughter(DVC petitioner
and minor daughter). Apart from it, as
per the DVC-appellate Court’s order further Rs.5,000/- p.m. towards residential
accommodation is payable only from 10.04.2013 when the DVC petitioner-cum- DVC
appellant vacated the premises of
her mother-in-law covered by O.S.No.1824
of 2006 in the A.S.No.802 of 2012 pursuant to the orders in A.S.M.P.No.2795 of
2012. It is further to clarify that the
Rs.10,000/- p.m. undertaken to pay is only by the mother-in-law in that civil
proceedings and not in the DVC case merged with DVC appeal . It cannot be
executed in the DVC case pursuant to the DVC appeal order for not part of the
relief granted therein. It is while
paying by the decreeholder therein as respondent to the appeal, she has to seek
clarification whether that Rs.10,000/- is inclusive of the Rs.5,000/- payable
by her son to her daughter-in-law with effect from 10.04.2013 or excluding the
same. Thus the obligation of the respondent No.1 is to pay in addition to
Rs.8,000/- p.m. from 16.06.2009 another sum of Rs.5,000/- p.m. from 10.04.2013
for the residential accommodation. It is
what all that can be executed in the Crl.M.P.No.550 of 2014. Even taken it for 13
months from 10.04.2013 to 10.05.2014 it comes to Rs.65,000/-, towards residential
accommodation and towards maintenance at
Rs.8,000/- p.m. from 16.06.2009 till 15.05.2014, it comes to Rs.4,72,000/-. The
grand total is Rs.5,37,000/-. Even included for June and July, 2014 at
Rs.13,000/- p.m. of Rs.26,000/-; by
10/15.07.2014, it comes to Rs.5,63,000/-.
As per the lower Court’s order dated 28.07.2014, at para-17, the DVC 1st
respondent-revision petitioner paid by then Rs.5,01,000/-(excluding payments as
per A.S.No.802 of 2012 order of Rs.10,000/- per month by appeal respondent
therein). It is thus the balance is
payable by then of Rs.62,000/-. Needless to say payable for subsequent period
amounts every month. Accordingly, point No.1 is answered.
Point
No.2:
11. In the result, the revision case
is partly allowed holding that the liability of the DVC 1st
respondent in Crl.M.P.No.550 of 2014, as on 10/15.07.2014 was Rs.5,63,000/- and
after deduction of what all he paid whether Rs.5,01,000/- or the like, to pay
all arrears within one month, else to execute and recover. It is needless to say the further liability to
pay every month amounts. Consequently, miscellaneous petitions, if any, pending
in this revision shall stand closed.
__________________________
Dr. B.SIVA SANKARA RAO J,
Dt.03.12.2014.
vvr
