Virender Chauhan vs Poonam on 23 May, 2017

[Cites 1, Cited by 1]

Himachal Pradesh High Court

Virender Chauhan vs Poonam on 23 May, 2017

Bench: Tarlok Singh Chauhan

          IN THE HIGH COURT OF HIMACHAL PRADESH,
                          SHIMLA.




                                                                               .
                                                             CMPMO No. 389 of 2016





                                                                Decided on: 23.5.2017

               Virender Chauhan.                                            ...Petitioner.





                                         Versus
              Poonam.                                                    ...Respondent.
    _____________________________________________________________





               Coram:

               Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

               Whether approved for reporting? 1 No.


               For the Petitioner:                Mr. Shikha Chauhan, Advocate.

               For the Respondent:                Mr. B.S. Attri, Advocate.


               _________________________________________________________



               Justice Tarlok Singh Chauhan, Judge (oral):

This petition under Article 227 of the Constitution of India is directed against the order passed by the learned District Judge (Forest) (for short "trial court") on 20.9.2016 whereby the application filed by the husband-petitioner for modification/review of order dated 19.5.2014 not only came to be dismissed but even the costs of Rs.

3,000/- were imposed.

Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 28/05/2017 00:00:42 :::HCHP 2

2. It is not in dispute that the petitioner has .

filed a petition under section 13 of the Hindu Marriage Act (for short "Act") for dissolution of the marriage which is pending adjudication before the trial court. In these proceedings, the respondent filed an application under section 24 of the Act seeking interim maintenance, which was allowed by the learned trial court by awarding maintenance of Rs.

2,500/- per month from the date of filing the application alongwith litigation expenses of Rs.

5,000/-. This order was assailed by the respondent before this Court by filing CMPMO No. 162/2014 for enhancement of the amount. This Court vide judgment dated 21.11.2014 allowed the petition by enhancing amount of maintenance to Rs. 12,000/-

per month from the date of filing the application till the disposal and similarly the litigation expenses were also enhanced to Rs. 10,000/- as against Rs.

5,000/-.

3. It is the case of the petitioner that subsequent to the passing of the order by this Court ::: Downloaded on - 28/05/2017 00:00:42 :::HCHP 3 on 21.11.2014, the respondent, who earlier was .

allegedly unemployed came to be appointed as Assistant Professor (College Cadre) in Government College, Sanjauli vide notification No. EDN-A-Kha (2)34/2013 dated 16.7.2015 and accordingly filed an application for modification/review of the order before the trial court in the light of changed circumstances.

However, this application came to be dismissed by it by invoking the principle of merger and the petitioner was also burdened with costs of Rs. 3,000/-.

4. I have heard the learned counsel for the parties and have gone through the records carefully.

5. It would be noticed that the petitioner had earlier approached this Court by filing CMPMO No. 435/2015 seeking modification of the order in view of the aforesaid changed circumstances. It is specifically averred that this Court had expressed its view that it was the Court of first instance, which alone could decide the entitlement of the maintenance as this Court had only touched upon the quantum of maintenance and had not determined ::: Downloaded on - 28/05/2017 00:00:42 :::HCHP 4 the question of entitlement per se. This constrained .

the petitioner to withdraw the aforesaid CMPMO No. 435/2015 on 5.11.2015 and it was thereafter the application for modification was filed before the trial court.

6. Once this was the position, I really cannot appreciate as to how the court below invoked the principle of merger to hold that such application was not maintainable and thereafter even proceeded to impose costs of Rs. 3,000/-.

7. No doubt, an application for modification of order is ordinarily to be preferred to that very Court whose order is sought to be modified but then this was precisely what the petitioner had done.

However, when this Court refused to entertain the petition, the petitioner was constrained to approach the learned trial court. In such circumstances, it cannot be held that the application for modification was not maintainable.

8. In view of the aforesaid discussion, the impugned order passed by the trial court is not ::: Downloaded on - 28/05/2017 00:00:42 :::HCHP 5 sustainable and is accordingly set aside. The parties, .

through their counsel, are directed to appear before the trial court on 12.6.2017.

9. The petition is disposed of in the aforesaid terms leaving the parties to bear their own costs.

(Tarlok Singh Chauhan), Judge.

23.5.2017 *awasthi* ::: Downloaded on - 28/05/2017 00:00:42 :::HCHP

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