Bombay High Court
Jalindar S/O. Nana Kere And Anr vs Nana S/O. Namdev Kere on 1 October, 2018
Author: V. K. Jadhav
Bench: V. K. Jadhav
CriWP-950-2017
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 950 OF 2017
1. Jalindar s/o. Nana Kere
Age: 48 yars, Occu. Agriculture,
Resident of Village : Gawlishivara,
Taluka Gangapur, Dist. Aurangabad.
2. Dattu s/o. Nana Kere
Age: 43 years, Occu. Service,
Resident of as above. ... Petitioners
(Orig. Non-Applicants)
versus
Nana s/o. Namdev Kere
Age: 73 years, Occu. Nil,
Resident of Gawlishivara,
Tq. Gangapur, Dist. Aurangabad. ... Respondent
(Orig. Applicant)
......
Ms. Asha Sanjay Rasal, Advocate for the Petitioners.
Ms. Sunita G. Sonawane, Advocate for the Respondent-sole.
.....
CORAM : V. K. JADHAV, J.
RESERVED ON : 04.09.2018
PRONOUNCED ON : 01.10.2018
...
ORDER :-
1. By way of this criminal writ petition filed under Article 227 of the Constitution of India, the petitioners have challenged the order dated 19.01.2017 whereby the learned 2nd Joint Judicial Magistrate First Class, Gangapur has allowed Misc. Criminal ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:36:56 ::: CriWP-950-2017 -2- Application No. 505 of 2013 filed by the respondent under Section 125 of the Criminal Procedure Code, 1973 (Cr.P.C.) for grant of maintenance.
2. The petitioners are real brothers and the respondent is their father. The respondent-father had earlier filed Misc. Criminal Application No. 237 of 2012 against the present petitioners, seeking maintenance from them. During pendency of the said application, petitioner no.1 filed a civil suit bearing Regular Civil Suit No. 351 of 2012 for partition, separate possession and perpetual injunction. The said suit came to be disposed of by virtue of a settlement agreement between petitioner no.1 and the respondent, where under it was agreed between the parties that the petitioner will take care and look after the respondent-father and the respondent-father will not pursue the application filed by him for maintenance. As per the terms of said settlement agreement, the respondent had also withdrawn Misc. Criminal Application No. 237 of 2012 filed by him for maintenance. However, the respondent-father again filed Misc. Criminal Application No.505 of 2013 seeking maintenance, alleging therein that the petitioners are not taking his care as per the said settlement agreement. The learned Magistrate, by the impugned ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:36:56 ::: CriWP-950-2017 -3- order, allowed the said application and awarded maintenance of Rs.1,500/- from each of the petitioners. Hence this petition.
3. Learned counsel for the petitioners submits that the entire proceeding of Misc. Criminal Application No. 505 of 2013 is ex parte and the impugned order is also passed ex parte. The impugned order is unjust, illegal and bad in law. The court below has failed to appreciate the facts and evidence on record. There was a settlement agreement between the parties and accordingly, the earlier Misc. Criminal Application No. 237 of 2012 was not proceeded further. As per the said settlement agreement, the petitioners have taken care of the respondent and maintained him by providing him necessary daily needs. The petitioners were following the terms of settlement agreement and the same is also admitted by the respondent. The learned counsel submits that, under such circumstances, the court below had no reason to allow the later Misc. Criminal Application No.505 of 2013. The court below has passed the order mechanically without going into the facts and evidence on record. The respondent failed to prove that he was neglected by the petitioners and the finding recorded by the court below to that effect is incorrect and erroneous. Learned counsel further submits the court below has awarded excess ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:36:56 ::: CriWP-950-2017 -4- amount as maintenance in absence of any evidence on record to substantiate the income of the petitioners. The learned counsel, thus, submits that the petition may be allowed.
4. Learned counsel for the respondent, on the other hand, submits that the respondent is an old aged person having no source of income. The petitioners were not following the terms of settlement agreement. They were not taking care of their father i.e. respondent and not even providing food to the respondent. Due to purposeful neglect and harassment at the hands of the petitioners, the respondent was constrained to file a complaint with Shilegaon Police Station. Till date, no action has been taken on the said complaint.
5. Learned counsel for the respondent further submits that notice of the proceeding of Misc. Criminal Application No.505 of 2013 was duly served on the present petitioners. Petitioner no.1 also appeared in the proceeding, however, he did not file any say to the application and Petitioner no.2 did not even appear in the proceedings. Hence, 'No Say' order was passed against petitioner no.1 on 20.09.2014 and the maintenance application was proceeded ex parte as against petitioner no.2. In absence of any say ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:36:56 ::: CriWP-950-2017 -5- and cross-examination on the part of the petitioners, the evidence of the respondent remained unshaken. Learned counsel further submits that considering the evidence on record, the income of petitioners from agricultural land and the age of the respondent, the lower court has awarded the maintenance amount and no interference is required.
6. On perusal of the record and proceedings, I find that, though, the petitioners were duly served in Misc. Cri Application No.505/2013 filed by the respondent seeking maintenance, however, though petitioner no.1 has appeared in the matter, failed to file his say and 'no say' order came to be passed against him. Further, petitioner no.2 has not even bothered to appear in the matter though duly served. Even, in terms of the provisions of Section 126 sub-section (2) proviso, petitioners did not approach to the trial court for setting aside the ex-parte order of grant of maintenance. Even, in this writ petition, petitioners have not shown any good cause for their non-appearance or not filing the say in the application seeking maintenance filed by the respondent.
7. Petitioners have challenged the order of grant of maintenance only on the ground that, though, there was settlement ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:36:56 ::: CriWP-950-2017 -6- agreement between the parties, respondent has not persuaded earlier Misc Cri Application No.237/2012 filed for grant of maintenance and, as such, present second application for grant of maintenance again is not maintainable. It appears that, in the R.C.S.No.315/2012 instituted by petitioner no.1 herein against the respondent, wife of the respondent and petitioner no.2 for partition, separate possession and decree of perpetual injunction in respect of the ancestral property , parties have arrived at a settlement and in terms of the said settlement, suit came to be disposed off. In paragraph no.12 of the said settlement, it has been agreed that, pursuant to the settlement arrived at between the parties, respondent herein would not press his application Misc. Cri Application No.237/2012 filed for grant of maintenance under section 125 of Cr.P.C. It is thus clear that, prior application seeking maintenance was not adjudicated on merits and it was simply not persuaded in terms of the settlement arrived at between the parties in the pending civil suit. Respondent herein has approached to the trial court by filing Misc Cri Appln No.505/2013 for grant of maintenance on fresh grounds to the effect that the petitioners have failed to follow the terms and conditions of the settlement and they have refused and neglected to maintain him. It is also the ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:36:56 ::: CriWP-950-2017 -7- case of the respondent that due to his old age, he is not able to cultivate the land personally.
8. On careful perusal of the impugned order, I find that, the trial court after referring the documents placed on record, recorded the finding that petitioners herein have sufficient means to pay the maintenance and that they have refused and neglected to maintain the respondent herein though having sufficient means. The learned Judge of the trial court has also considered the status of the parties and accordingly granted maintenance at the reasonable rate. The learned Judge of the trial court while fixing the quantum has also considered old age of the respondent and his ailments due to aging process. Thus, considering the entire aspect, I do not find any fault in the impugned order. There is no substance in this writ petition. Writ petition is liable to be dismissed. Hence, following order.
O R D E R
1. Writ Petition is hereby dismissed.
2. Writ Petition accordingly disposed off.
( V. K. JADHAV, J.) .....
aaa/-
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