Jharkhand High Court
Smt. Pallavi vs Shri Raj Kamal on 5 December, 2007
Equivalent citations: AIR2008JHAR79, 2008(56)BLJR951, AIR 2008 JHARKHAND 79, 2008 (1) AIR JHAR R 857, 2008 A I H C 3285, (2009) 1 JCR 248 (JHA), (2008) 63 ALLINDCAS 635 (JHA)
Author: M. Karpaga Vinayagam
Bench: M. Karpaga Vinayagam
JUDGMENT M. Karpaga Vinayagam, C.J.
Page 0952
1. Smt. Pallavi, the appellant herein, is the wife. Shri Raj Kamal, the respondent herein, is the husband. The husband filed a matrimonial suit for decree of divorce before the Family Court. The wife-the appellant appeared before the Family Court and filed an application under Section 24 of the Hindu Marriage Act for maintenance during the pendency of the divorce proceedings and also for cost of litigation. On 05.0.2006, the Family Court allowed the said application directing the husband, the respondent herein, to pay Rs. 5000/- per month as maintenance per month and Rs. 500/- as litigation cost per date.
2. The husband, the respondent herein, challenging the same filed a writ petition under Article 225 of the Constitution of India before this Court. The learned Single Judge entertained the same and reduced the maintenance amount from Rs. 5000/- per month to Rs. 3000/- per month and litigation cost of Rs. 500/- per date to Rs. 5000/- as lump sum.
3. Aggrieved by this, the wife, the appellant herein, has filed this Letters Patent Appeal.
4. According to the counsel for the appellant, the writ petition filed by the respondent, the husband invoking Article 226 before the learned Single Judge is not maintainable as the Writ Court cannot have jurisdiction to deal with the claims between private parties with reference to whom interim order has been passed by the Family Court and as such the interference by the learned Single Judge into the order of Family Court is illegal.
5. According to the learned Counsel for the respondent, the husband, this letters patent appeal is not maintainable as the order passed by the learned Single Judge is not under Article 226, but it is under Article 227 of the Constitution pf India and as such the appeal cannot be entertained as held by the Division Bench of this Court in L.P.A. No. 584 of 2003 by order dated 17.10.2003.
6. We have heard the counsel for the appellant as well as the respondent.
At the outset it shall be mentioned that the objection raised by the counsel for the respondent regarding the maintainability of this appeal before this Court cannot be accepted in view of the fact that the observation given by the Division Bench in L.P.A. No. 584 of 2003 dated 17.10.2003 may not held the respondent in view of the judgment rendered by the Supreme Court in (2006) 7 SCC 496 [Kishori Lal v. Sales Officer]. The relevant observations of the Supreme Court are as follows:
13. The learned Single Judge of the High Court, in our opinion, committed an error in interfering with the findings of fact arrived at by the Board of Revenue. The Division Bench of the High Court also wrongly dismissed the LPA without noticing that an appeal would be maintainable if the writ petition was filed under Article 226 and 227 of the Constitution of India as was held by this Court in Sushilabai Laxminarayan Mudiyar v. Nihalchand Waghajlbhai Shaha.
7. The relevant observations of the Supreme Court in Sushilabai Laxminarayan Mudiya v. Nihalchand Waghajibhai Shah 1993 Supp. (1) SCC 11 is as follows:
4. ...where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India and the party chooses to file his Page 0953 application under both these Articles in fairness of justice to party and in order not to deprive him of valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, tills ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Rule 18 of the Bombay High Court Appellate Side Rules read with Clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a Judgment of the learned Single Judge passed on a writ petition under Article 226 of the Constitution.
8. So, in view of the above observations, this Court is constrained to reject the objection regarding the maintainability of the appeal raised by the respondent and hold that the appeal is maintainable.
9. The next question arises for consideration as to the jurisdiction of the learned Single Judge invoking the powers under Article 226 of the Constitution to interfere with the orders passed by the Family Court.
10. As indicated above, the contention of the counsel for the appellant, the wife, the writ petition filed by the husband, the respondent herein, under Article 226 of the Constitution of India is not maintainable. On the other hand, it was contended by the counsel for the respondent, the husband, that the power exercised by the learned Single Judge must be construed as power exercised under Article 227 of the Constitution of India and therefore, order of the learned Single Judge is legal.
11. On perusal of the writ petition and the counter affidavit, it is clear that a specific plea has been made in the Counter of the wife that the writ petition is not maintainable under Article 226 of the Constitution of India, hence it is required to be dismissed in limine. However, the learned Single Judge, without going into the question with reference to maintainability of the writ petition, allowed the writ petition by reducing the maintenance amount as also litigation cost pending the divorce proceedings.
12. Of course, it is settled law that even though a wrong section or article is quoted, when the powers are existent under different flections or different articles, the High Court is entitled to exercise those powers.
13. In view of the above legal situation, it can be assumed that powers have been exercised by the learned Single Judge under Article 227 of the Constitution of India, even though the learned Single Judge has not gone it to the question of maintainability of the writ petition under Article 226 of the Constitution of India. Let us now see, as to whether the Single Judge is correct in interfering into the interim order passed by Family Court by invoking Article 227 of the Constitution of India or not?
14. In this context, it would be relevant to refer to the Supreme Court decision in Surya Dev Rai v. Ram Chander Rai and Ors. which deals with the situation where Article 227 can be invoked. The relevant observations are as follows:
Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and Page 0954 failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
15. So, the above observation by the Supreme Court would clearly indicate that the High Court can invoke powers under Article 227 only when a Subordinate Court has assumed jurisdiction, which it does not have or when there is failure of justice has occasioned.
16. In this, admittedly, there is no finding by the learned Single Judge that extraordinary power of supervisory jurisdiction has been exercised since there is failure of justice or the Subordinate Court has assumed the jurisdiction, which it does not have.
17. On the other hand, the learned Single Judge has simply stated:
...Learned Counsel for the petitioner submitted that the take home salary of the petitioner is Rs. 8000/- per month. This Court while issuing notice directed the petitioner for payment of Rs. 3000/- per month by way of maintenance to the respondent till further order is passed.
Having regard to the facts and circumstances of the case, this application is allowed in part and the maintenance of Rs. 5000/- so fixed by the court below is reduced to Rs. 3000/- per month. Besides the above, petitioner shall pay lump sum litigation cost of Rs. 5000/- instead of litigation cost per date.
18. Thus, this order would neither refer to the maintainability of the writ petition either under Article 226 or Article 227, nor refer to any failure of justice, which had necessitated the learned Single Judge for interfering in the interim order passed by the Subordinate Court by reducing the quantum.
19. Further, it is noticed, the statement made by the counsel for the petitioner-husband-respondent to the effect that take home salary of the husband is Rs. 8000/- is not factually correct since the records produced before this Court would indicate that the gross payable amount of the petitioner-husband-respondent is Rs. 14267/- and the net payable amount is Rs. 11,187/-.
20. Thus, it is clear that the order interfering the interim order passed by the Subordinate Court was merely passed on the basis of incorrect statement, made by the counsel for the petitioner-husband-respondent.
21. Even under Article 226, as laid down by the Supreme Court in Surya Devi's case (supra) the writ of certiorari can be issued only when the Subordinate Court has passed some orders without jurisdiction or in excess of its jurisdiction or acting in fragrant disregard of the law or acting in violation of the principles of natural justice, thereby occasioning failure of justice. Nothing was referred by the learned Single Judge in interfering with the order of the Subordinate Court. That is not the case here as indicated above. Thus, it is clear that viewed from any angle, order passed by the learned Single Judge cannot be held to be valid in law since such an interference is not permissible either under Article 226 or Article 227 of the Constitution of India.
22. Hence, this Court feels the order, passed by the Subordinate Court, granting maintenance pendentelite, and the cost of litigation on the basis of records, is perfectly justified. Therefore, appeal is allowed. Consequently, order dated 24.07.2007 passed by learned Single Judge in W.P.(C) No. 4798 of 2006 is set aside. Order dated 05.07.2006 passed by the Principal Judge, Ranchi (the Subordinate Court) in Matrimonial Suit No. 166 of 2004 is restored.
Page 0955
23. Further, it is to be stated, as correctly indicated by the learned Single Judge, since the matrimonial suit is of the year 2004, the Court below is directed to dispose of the suit as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. There is no order as to costs.