Punjab-Haryana High Court
Smt. Chameli vs State Of Haryana And Another on 15 July, 2010
Crl. Misc. No. M-25891 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Misc. No. M-25891 of 2009 (O&M)
Date of decision: July 15, 2010
Smt. Chameli ...Petitioner
Versus
State of Haryana and another ...Respondents
CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH
Present: Mr. Sourabh Goel, Advocate,
for the petitioner.
Ms. Shalini Attri, DAG, Haryana,
for respondent No.1.
Mr. S.P. Tyagi, Advocate,
for respondent No.2.
GURDEV SINGH, J.
Heard.
This petition by Chameli-petitioner, under Section 482 of the Criminal Procedure Code (hereinafter referred to as 'the Code') and under Article 227 of the Constitution of India, is for quashing the order dated 17.4.2009 passed by Permanent Lok Adalat (Samjhota Sadan), Rohtak (hereinafter referred to as the 'Lok Adalat') in petition No. 461 dated 3.6.2008. According to her, she is the legally wedded wife of respondent No.2 and filed a petition under Section 125 of the Code for maintenance in which the same was awarded @ Rs. 70/- per month, which was ultimately enhanced to Rs. 400/- per month, vide order dated 16.9.1992 in the Crl. Misc. No. M-25891 of 2009 2 application filed under Section 127 of the Code. She filed a petition for recovery of arrears of maintenance allowance for the period December 2004 to November, 2007 at the said rate before the Additional Chief Judicial Magistrate, Rohtak, who referred the matter to the Lok Adalat and that Lok Adalat, vide impugned order, disposed of the petition having rendered infructuous, in view of the affidavit submitted by the respondent. Joint statement of the parties is alleged to have been recorded by the Lok Adalat. She never gave any consent regarding that statement; nor she put her signatures thereon. The same was signed only by the respondent No.2 and was verified by his counsel. No such order could have been passed by the Lok Adalat, as there was no such consent of the petitioner. A false affidavit was submitted by the respondent before the Lok Adalat, containing false deposition, to mislead the Court. In fact, the maintenance allowance mentioned in that affidavit is the maintenance allowance awarded under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as 'the Act') and that has no concern with the proceedings under Section 125 of the Code. The Lok Adalat committed an error apparent on the face of the record by relying upon that wrong and false affidavit. As there was no consent, so the Lok Adalat could not have passed any such award.
Notice of motion having been issued, respondent No.2 submitted his reply. He pleaded therein that consent was given by the petitioner as well as by her counsel before the Lok Adalat and that fact was admitted by them before the Additional Civil Judge (Sr. Divn.), Sonepat, vide order dated 7.2.2009. It was further pleaded that interim maintenance at the rate of Rs. 600/- per month was granted to the petitioner, vide order Crl. Misc. No. M-25891 of 2009 3 dated 22.5.2000. She filed a revision petition before this court and the same was enhanced to Rs. 1500/- per month. The arrears of maintenance had already been received by her upto 31.3.2009, after deduction was made from his salary. The balance amount on account of arrears of maintenance was already deducted from his salary at the rate of Rs. 4000/- per month and that amount was being remitted to the account of the petitioner. The award was passed by the Lok Adalat not on the basis of his affidavit but was passed on the basis of the consent given by the petitioner. The maintenance was awarded to the petitioner under Section 125 of the Code as well as under
Section 18 of the Act and as per the settled law she could have recovered one of those maintenance allowances.
I have heard learned counsel for both the side.
It has been submitted by the learned counsel for the petitioner that no consent was ever given by the petitioner before the Lok Adalat, nor her statement was recorded before it. Therefore, it cannot be said that the award of the Lok Adalat is based upon compromise or consent of the parties. The alleged joint statement of the parties was never signed by her or her counsel. The respondent tried to play mischief with the Lok Adalat, by filing a false affidavit, which contains deposition which is totally contradictory to the admitted facts. Once this court comes to the conclusion that the award of the Lok Adalat is not based upon the consent/compromise of the parties, the same is liable to be set aside. In support of his contentions, he has placed reliance on the judgment in Sant Ram and others versus State of Punjab and others 2008 (4) RCR (Civil) 39.
On the other hand, it has been submitted by learned counsel for the respondent No.1 that the matter was referred to the Lok Adalat with the Crl. Misc. No. M-25891 of 2009 4 consent of the parties where their joint statement was recorded incorporating the compromise entered into between them and the award was passed on the basis of that joint statement. Once that award has been passed on the basis of the compromise, the same cannot be set aside by this court as it is not the contention of the petitioner that any such fraud was exercised upon her for obtaining the above said order.
Records of this Court/Lok Adalat were called for and have been perused. The petitioner had filed an application for recovery of the arrears of maintenance allowance to the tune of Rs. 14400/- for the period December, 2004 to November, 2007 @ Rs. 400/- per month. In reply submitted by respondent No.1, he categorically stated that the petitioner was receiving Rs. 4,000/- per month as maintenance allowance as per the enhanced maintenance order passed by the court and that the said amount was being deducted from his salary since November, 2004. The application was pending for arguments before the Additional Chief Judicial Magistrate, Rohtak. When the matter was referred to the Lok Adalat. It continued to be adjourned by the Lok Adalat for placing on record the certificate of the bank in support of the contention of respondent No. 2 that the maintenance allowance @ Rs. 4000/- for the said period has already been paid to the petitioner. Accordingly, the certificate of the bank exhibit CX was placed on record. However, it was mentioned therein that only a sum of Rs. 832/- has been deducted from the salary of the respondent for the month of February, 2009 and another sum of Rs. 2200/- has been deducted from his salary for the month of March, 2009. Keeping in view the fact that the execution application was filed by the petitioner for the above said amount, the respondent was asked to place on record his affidavit. Accordingly, he filed Crl. Misc. No. M-25891 of 2009 5 his affidavit exhibit CY, in which he deposed that the maintenance allowance was enhanced from Rs. 400/- to Rs. 1500/- and then to Rs. 2200/- and that a sum of Rs. 4000/- was deducted from his salary for the period December, 2004 to January 2009 and that amount also included the maintenance which was awarded to the petitioner @ Rs. 400/- per month. There is another certificate of the bank with the file of the case and as per that certificate a sum of Rs. 2,48,462/- was deducted from the salary of respondent from 1.1.1997 to 28.2.2009, which creates confidence in the deposition made by the deponent in his affidavit. A perusal of the file of the Lok Adalat also makes it clear that the joint statement of the counsel for the parties and that of the respondent was recorded on oath. The plea that this statement does not bear the signatures of her counsel cannot be made a ground for coming to the conclusion that the same was not made by her. That was just an omission on the part of the Lok Adalat. When the file was received back by the Additional Chief Judicial Magistrate (in the order his designation has been described as Civil Judge (Sr. Divn.), Rohtak), he passed the order dated 20.4.2009. That order was passed in the presence of the counsel for the parties and it is incorporated therein that the file has been received from the Lok Adalat and the matter has been settled between the parties. It there had been no such statement before the Lok Adalat or the statement of the counsel for the petitioner had not been recorded, he must have raised objection at that time and the said order would not have been passed.
There is nothing on record to conclude that the petitioner never gave her consent before the Lok Adalat or that she had not entered into such a settlement with the respondent. When such is the case, the judgment cited Crl. Misc. No. M-25891 of 2009 6 by the learned counsel for the petitioner is of not help to her. There is no ground for setting aside award of the Lok Adalat and the petition is dismissed accordingly.
Records of the lower court be returned.
July 15, 2010 (GURDEV SINGH ) prem JUDGE