Allahabad High Court
Atul Kumar Jain vs State Of U.P. And Another on 22 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 666
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 02.02.2021 Delivered on 22.02.2021 Court No. - 64 Case :- APPLICATION U/S 482 No. - 2333 of 2016 Applicant :- Atul Kumar Jain Opposite Party :- State of U.P. and Another Counsel for Applicant :- Raghuraj Kishore,Prashant Pandey Counsel for Opposite Party :- G.A.,Anurag Pathak Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant, learned counsel for the opposite party no.2, learned A.G.A. for the State-respondent and perused material on record.
2. This application u/s 482 Cr.P.C. has been filed with the prayer to quash the order dated 04.05.2015, passed by the Additional Chief Judicial Magistrate IInd Saharanpur, in Case No. 314 of 2014 (Shilpi Jain vs. Atul Jain), under Section 12/18/19/20D/22 Domestic Violence Act and also to quash the order dated 29.05.2015, passed by the Additional Sessions Judge Court No.10, Saharanpur in Criminal Appeal No. 45 of 2015 (Atul Kumar Jain vs. State of U.P.).
3. The facts of the matter are that the opposite party no.2 Smt. Shilpi Jain has filed an application under Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as D.V. Act) against her husband/applicant Atul Kumar Jain and by order dated 11.10.2013, she was granted maintenance @ Rs. 3000/- per month for herself and Rs. 2000/- per month for her minor son. The applicant has challenged that order by filing Criminal Appeal No. 135 of 2013, which was dismissed vide order dated 25.07.2014 and the order dated 11.10.2013 was upheld. After that, the opposite party no.2 has filed an application before the Judicial Magistrate IIIrd, Saharanpur alleging that during hearing of above stated Criminal Appeal No. 135 of 2013, the applicant/husband has accepted the responsibility of depositing the school fees of her son but now he is not depositing the fees and thus, the applicant/husband be directed to deposit the fees of the son of parties. The learned Magistrate by order dated 04.05.2015 directed the applicant to regularly pay/deposit the fees of his son. The said order dated 04.05.2015 was challenged by the applicant in Criminal Appeal No. 45 of 2015, which was dismissed vide impugned order dated 29.05.2015, passed by the Additional Sessions Judge Court No.10, Saharanpur and the order dated 04.05.2015 passed by the Magistrate was upheld. The applicant is impugning the above stated order dated 04.05.2015, passed by the Judicial Magistrate IInd, Saharanpur and order dated 29.05.2015, passed by the learned Lower Appellate Court, in the present application under Section 482 Cr.P.C.
4. The argument of learned counsel for the applicant is that by order dated 11.10.2013, no such direction was made to the applicant to deposit fees of the son of parties and that order was not challenged by the opposite party no.2 in any appeal. However, the applicant has challenged the said order dated 10.05.2013 by filing above stated Criminal Appeal No. 135 of 2013 but his appeal was dismissed vide order dated 25.07.2014 and that mere observation in the judgment that an argument was made on behalf of appellant (herein applicant) that applicant was regularly depositing the fees of the minor son, cannot be termed a direction of the Court as the said appeal was ultimately dismissed upholding the order dated 11.10.2013. Learned counsel submitted that in view of these facts, both the impugned orders are against law and no such direction can be issued to the applicant that he has to deposit the fees of the minor son of the parties.
5. Learned counsel for the opposite party no.2 has argued that during hearing of above stated Criminal Appeal No. 135 of 2013, the applicant has taken responsibility for depositing of fees of the minor son and an interim order was passed and the appeal was decided keeping in view the assurance of applicant and thus, the direction of the Court by order dated 04.05.2015 is proper and in accordance with law and that order has also been upheld in appeal by order dated 29.05.2015 passed in Criminal Appeal No. 45 of 2015. Learned counsel submitted that applicant is legally bound to deposit the fees of his son. It was submitted that both the impugned orders are in accordance with law and the same are liable to be upheld.
6. I have considered the rival submissions and perused the record.
7. Perusal of record shows that by order 11.10.2013, the court of Judicial Magistrate, IIIrd, Saharanpur, granted interim maintenance @ Rs. 3000/- per month to the opposite party No. 2 and Rs. 2000/- per month for her minor son. It appears that the opposite party No. 2 did not challenge the said order, however, the applicant has filed Criminal Appeal No. 135 of 2013 against that order, but the appeal was dismissed vide order dated 25.07.2014 and the order dated 11.10.2013 was upheld. Thereafter, the opposite party no.2 has filed an application before the Judicial Magistrate IIIrd, Saharanpur alleging that during hearing of above stated Criminal Appeal No. 135 of 2013, the applicant/husband has accepted the responsibility of depositing the school fees of her son but now he is not depositing the fees and thus, the applicant/husband be directed to deposit the fees of the son of parties. The learned Magistrate by order dated 04.05.2015 directed the applicant to regularly pay/deposit the fees of his son. The said order dated 04.05.2015 was challenged by the applicant in Criminal Appeal No. 45 of 2015, which was dismissed vide impugned order dated 29.05.2015 passed by the Additional Sessions Judge Court No.10, Saharanpur and the order dated 04.05.2015 passed by the Magistrate was upheld.
8. It is apparent that as the criminal appeal Criminal Appeal No. 135 of 2013 was dismissed upholding order dated 11.10.2013, thus, a mere observation by the learned Appellate court that an argument was made on behalf of appellant/ husband that he was regularly paying fees of minor son, can not be termed as a binding direction of the Appellate court and the said observation is not executable. It has to be kept in mind that said appeal No. 135 of 2013 was dismissed and not disposed off and in the operating part it was clearly mentioned that there is no illegality or perversity in the order dated 11.10.2013. Even if during pendency of appeal No. 135 of 2013, the appellate court has passed any interim order, it would come to end with the disposal of appeal. In fact it appears that both the courts below failed to appreciate one of basic legal proposition that once the final order is passed in case or appeal, the interim order merged in to final order. In Kalabharati Advertising v. Hemant Vimal Nath Narichania, (2010) 9 SCC 437 it was observed by the Hon'ble Supreme Court that no litigant can derive any benefit from the mere pendency of a case in a court of law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. The Hon'ble Supreme Court further observed that it is not permissible for a party to file a writ petition, obtaining certain orders during the pendency of the petition and withdraw the same without getting proper adjudication of the issue involved therein and insist that the benefit of the interim order or consequential orders passed in pursuance of interim order by the writ court would continue. The benefit of the interim relief automatically gets withdrawn / neutralized on withdrawal of the said petition. Once a foundation is removed the super structure is bound to fall. The interim relief is granted only in aid of and as ancillary to the main relief which may be available to the party at the time of final adjudication by the court. The same view has been reiterated by the Hon'ble Supreme Court in Amarjeet Singh & Others v. Devi Ratan and Ors. (2010) 1 SCC 417. Thus, in the instant case once the appeal No. 135 of 2013 was dismissed upholding the order dated 11.10.2013, the interim order of that appellate court passed during pendency of appeal would merge in to final order and would automatically stand vacated. In view of these facts and circumstances, it is apparent that the learned Magistrate committed error by directing the applicant to pay fees of the child on premises that interim order of said appellate court was enforceable. Similarly in criminal appeal No. 45 of 2015, the appellate court also failed to appreciate the perversity committed by the court of Magistrate. Here it would also be pertinent to mention that order dated 11.10.2013 and appellate court's order in criminal appeal No. 135 of 2013 pertains to the matter of interim maintenance and thus, the opposite party No. 2 may take all her pleas during final disposal of matter, if the same has not been decided finally so far. Thus, both the impugned orders ie the order dated 04.05.2015 passed by the court of Judicial Magistrate IIIrd, Saharanpur and the order dated 29.05.2015 passed in Criminal Appeal No. 45 of 2015, are against facts and law and thus, not sustainable.
9. In view of aforesaid, both the impugned orders i.e. dated 04.05.2015 passed by the Judicial Magistrate, IIIrd, Saharanpur and the order dated 29.05.2015 passed in Criminal Appeal No. 45 of 2015, are set aside.
10. Application under section 482 CrPC is allowed.
Order Date :- 22.02.2021 A.Tripathi