Delhi District Court
Mithun Bharti vs Hansika @ Jyoti Cr No.56229/16 on 3 October, 2018
Mithun Bharti Vs Hansika @ Jyoti CR No.56229/16
IN THE COURT OF SH. MANISH YADUVANSHI, ADDL.
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.R. No. 56229/16
IN THE MATTER OF:
Mithun Bharti,
S/o Sh Shiv Lal Bharti,
R/o S130, First Floor,
Jwala Puri, PVC Market,
New Delhi - 110087. ....... Petitioner
Versus
Hansika @ Jyoti
W/o Sh Mithun Bharti
D/o Sh Arjun Singh Palwar,
R/o M282, Guru Harkishan Nagar,
Paschim Vihar, New Delhi110087. ...... Respondent
Date of Institution : 10.08.2016
Date of arguments : 03.10.2018
Date of Judgment : 03.10.2018
Result: Petition Dismissed. Page 1 of 9
Mithun Bharti Vs Hansika @ Jyoti CR No.56229/16
JUDGMENT ON REVISION PETITION
UNDER SECTION 397 CR.P.C.
1. This judgment/order disposes of the revision petition under Section 397 Cr.P.C filed against the order of Ld. Trial Court dated 9.7.2016 in case No. 205/01/13 P.S Mianwali Nagar titled as Hansika @ Jyoti Vs Mithun Bharti & Ors which is a petition under Section 12, 18, 19, 20 & 22 of the Protection of Women from Domestic Violence Act (herein after called as the D.V Act).
2. By this order, the ld. Trial Court disposed of the interim application of respondent herein under Section 23 (2) of the D.V Act for grant of interim maintenance. After evaluating the material on record, the ld. Trial Court directed the interim maintenance at the rate of Rs. 2905/ per month in favour of the petitioner/respondent and her minor child payable by the appellant from the date of the petition till further orders or re marriage. Arrears were directed to be cleared in 6 months from that date. The matter was adjourned for P.E. by way of affidavit.
3. Aggrieved, the petitioner, instead of filing an appeal under Result: Petition Dismissed. Page 2 of 9 Mithun Bharti Vs Hansika @ Jyoti CR No.56229/16 Section 29 of the D.V Act, filed the present revision petition.
4. The petition was received by transfer in this Court on 19.7.2018. Court notices were issued to the parties and their counsels. Arguments have been heard today during which a legal issue arose that the present petition is not maintainable as the order impugned can not be subjected to a revisional jurisdiction as it can only be assailed by way of preferring an appeal under Section 29 of the D.V Act.
5. When the respondent's counsel was meted with this argument, all that he pleaded was that though the argument may be ostensibly correct but the hardship that the respondent/complainant has undergone was considered to be looked into.
6. Nothing further was argued.
7. Section 12 of the D.V Act gives a right to an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to present an application to the Magistrate seeking one or more reliefs under this Act.
8. Under Section 12(2) of the D.V Act, relief sought under Section 12(1) of the D.V Act may include a relief for issuance Result: Petition Dismissed. Page 3 of 9 Mithun Bharti Vs Hansika @ Jyoti CR No.56229/16 of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent subject to the proviso appended therewith.
9. Section 18 of the D.V Act provides for Protection Orders which may be passed in a petition Under Section 12 of the D.V Act.
10. Likewise, Section 19 entitles a party to seek Residence Orders while Section 20 entitles a party to seek Monetary Relief. Section 21 deals with Custody Orders while Section 22 deals with Compensation Orders on account of injuries including the mental torture and emotional distress etc caused by the acts of domestic violence.
11. Under Section 23 of the D.V Act, the Magistrate may pass interim orders which may be exparte also.
12.In the instant case, the order impugned is a Monetary Relief order passed under Section 23(2) of the D.V Act after hearing both the parties.
13.Section 29 of the Act provides for provision of appeal to this Court within 30 days from the date on which the order made by Result: Petition Dismissed. Page 4 of 9 Mithun Bharti Vs Hansika @ Jyoti CR No.56229/16 the Magistrate is served on the aggrieved person or the respondent as the case may be, whichever is later.
14. Accordingly, if instead of appeal, the party invoked revisional jurisdiction of this Court even in those cases where the impugned order can only be challenged in an appeal under Section 29 of the D.V Act, then the course which is perhaps open to such a party is to plead conversion of such a Revision petition into an Appeal. Unfortunately for the petitioner, no such plea has been made at its behest despite opportunity.
15. Ordinarily, the appeals that are fit to be converted into a revision can be considered for such conversion, I rely on the following judgments on the issue:
In the judgment titled News Television India Ltd Vs Special Director of Enforcement passed by Hon'ble High Court of Delhi in Crl. A. No. 305/2007 on 6.5.2009, one of the plea was taken that the appeal was fit to be converted into a Revision to over come hurdle of limitation. The appeal was against the judgment of Appellate Authority and passed under FEMA, 1999. The Result: Petition Dismissed. Page 5 of 9 Mithun Bharti Vs Hansika @ Jyoti CR No.56229/16 Hon'ble High Court of Delhi considered the plea as to whether the appeal by the appellant before First Appellate Authority which was admittedly barred by limitation could have been entertained by condoning the delay as prayed for or in the alternative to have converted the appeal in a revision.
Since the Hon'ble High Court of Delhi held that the limitation prescribed in FERA was no more applicable to the appeal of the appellant and which fact was not considered for condoning the delay by the Appellate Authority, the Hon'ble High Court of Delhi held that the order was unsustainable. The matter was remanded back to the Appellate Authority to consider the plea of limitation in the light of Section 19 of FEMA.
Consequently, no discussion was made regarding the conversion of appeal into revision but at the same time, the judgment of Hon'ble Madhya Pradesh High Court is referred to in case News Result: Petition Dismissed. Page 6 of 9 Mithun Bharti Vs Hansika @ Jyoti CR No.56229/16 Television India Ltd (Supra) in case titled Om Prakash vs Dwarka Prasad AIR 2005 M.P 240. It was held therein that, "To meet the ends of justice, revision can be converted into appeal or appeal can be converted into revision while exercising the discretion and if the following norms are fulfilled, then normally order of conversion of revision into appeal or appeal into revision should be passed:
i) When revision is converted into second appeal, then before passing the order of conversion, it is to be considered whether substantial question of law arises in the said case, if no substantial question of law arises in the case, revision can not be converted into second appeal.
ii) Revision can be converted into appeal if same is filed within time and there is no impediment of limitation. Limitation must be construed from the date of filing of the revision petition or appeal. If the revision or appeal so filed was within Result: Petition Dismissed. Page 7 of 9 Mithun Bharti Vs Hansika @ Jyoti CR No.56229/16 limitation, for conversion into appeal or revision, it is to be examined that the appeal or revision, as the case may be, so filed, on the date of institution was within the limitation and if so, said permission can be granted.
iii) There is no period of limitation for applying such conversion, but while exercising the powers of conversion, the Court would keep in mind whether appeal or revision, as the case may be, had been instituted within the period prescribed for such proceedings."
16. I would further add that recently our own Hon'ble High Court of Delhi in Charu Chawla Vs R.K Anand & Anr. 2018 (3) LRC 483 Del has held that interlocutory orders which deal only with procedure and which did not affect the rights of a party will certainly not fall within the sweep of expression 'order' in Section 29 of the Act. It was held that order to be appealable, has to affect or have a material reflection on the rights of the parties. Thus, what is meant is that the revision petition can be brought in this Court against such orders Result: Petition Dismissed. Page 8 of 9 Mithun Bharti Vs Hansika @ Jyoti CR No.56229/16 passed under the D.V Act which do not affect or have a material reflection on the right of parties.
17.This is not the case herein.
18. Consequently, the revision petition is not maintainable. It stands dismissed.
19.Let copy of this judgment be sent to the Ld. Trial Court/its successor Court for intimation alongwith Trial Court record.
20.Petitioner is directed to appear before the Ld. Trial Court on 12.10.2018 for further proceedings.
21. File of revision be consigned to record room after all necessary compliances.
ANNOUNCED IN THE OPEN ( MANISH YADUVANSHI ) COURT ON : 03.10.2018. ASJ05 (West), THC, Delhi.
Digitally
signed by
MANISH
MANISH YADUVANSHI
YADUVANSHI Date:
2018.10.04
16:47:34
+0530
Result: Petition Dismissed. Page 9 of 9