$~10 * IN THE HIGH COURT OF DELHI AT NEW DELHI % + Judgment delivered on:
23. 05.2019 CRL.REV.P. 27/2017 KAMLESH KUMAR TIWARI versus KAMINI TIWARI Advocates who appeared in this case: ........ Petitioner
..... Respondent For the... Petitioner
: Mr. Vaibhav Prakash Shukla, Mr. Mukesh Kumar Saroja, Mr. Dharmendra Kumar, Mr. Abhinandana Kain, Mr. K. Shukla, Mr. Piyush Dwivedi, Advs. With petitioner in person. For the Respondent : Mr. S.K. Singh, Advocate CORAM: HON'BLE MR. JUSTICE SANJEEV SACHDEVA ORDER
SANJEEV SACHDEVA, J.
(ORAL) REV. PET. 195/2018 & Crl. M.A. 8706/2018 1.... Petitioner
had filed the subject revision petition impugning order dated 31.08.2016 whereby two appeals; one filed by the petitioner and the other filed by the respondent were disposed of. Both the appeals had impugned order dated 11.04.2016 passed by the Metropolitan Magistrate, rejecting the application filed by the petitioner under Section 25(2) of the Protection of Women from CRL.REV.P272017 Page 1 of 5 Domestic Violence Act, 2005 (hereinafter referred to as the DV Act).
2. By order dated 23.12.2014 interim maintenance was fixed and the petitioner was directed to pay a sum of Rs. 25,000/- per month for the respondent-wife and Rs. 15,000/- per month for the child.... Petitioner
appealed against the said order and appellate court by order dated 11.03.2016 dismissed the appeal filed by the petitioner.
3. Thereafter, petitioner filed an application under Section 25(2) of DV Act, seeking modification of the interim maintenance fixed by the court claiming change in circumstance. The change in circumstance claimed by the petitioner was that he was ousted from the residential home and had to incur extra expenditure for taking an alternative accommodation.
4. The trial court by order dated 11.07.2016 held that there was a change in circumstance and reduced the maintenance payable to the respondent – wife from Rs. 25,000/- to Rs. 15,000/-.
5. Aggrieved by the said order, both the parties filed appeals. The appellate court by order dated 30.11.2016 rejected the appeal of the petitioner holding that in the first round, the plea of change in circumstance, (i.e. ouster from the residential accommodation) was raised by the petitioner before the appellate court and the same had been considered and rejected and as such the petitioner could not have filed an application under Section 25(2) of the D.V. Act contending CRL.REV.P272017 Page 2 of 5 change in circumstance.
6. The petitioner, aggrieved by the order dated 30.11.2016 filed the present revision petition. The revision petition was dismissed by this Court by judgment dated 07.02.2018, inter-alia, holding that the contention of the petitioner of ouster was specifically raised and dealt with by the appellate court in the first round itself. The appellate court in the first round after considering the said plea had declined to interfere with the order of the trial court inter alia on the ground of ouster. It was also noticed that the petitioner had not taken any further proceedings after the order of the appellate court was passed in the first round. The order of the trial court accordingly had merged with the order of the appellate court and said order has become final. Accordingly, the petition was dismissed.
7. The petitioner thereafter filed Special Leave Petition (Crl.) No.2974 of 2018 before the Supreme Court and said Special Leave Petition was disposed of by the Supreme Court by order dated 13.04.2018.
8. The Supreme Court in its order dated 13.04.2018 noticed the contention of the counsel for the petitioner that this Court had incorrectly recorded in its judgment dated 07.02.2018 that the plea of ouster from residence was raised and considered by the appellate court in the first round of litigation. Noticing the said contention, the Supreme Court permitted the petitioner to file a review petition before CRL.REV.P272017 Page 3 of 5 this Court. Consequently, the subject review petition has been filed.
9. When this review petition was taken up for consideration on 06.12.2018, during arguments it was pointed out by learned counsel for the respondent that the Memo of Appeal of the first round of litigation clearly showed that petitioner had taken the plea of ouster from residence in the first round and the same had been considered by the appellate court in the first round of litigation and it is so noticed in its order dated 11.03.2016.
10. When learned counsel for the petitioner was faced with this situation, he submitted that the submission of the petitioner before the Supreme Court was not that the petitioner had not raised this plea before the appellate court but his submission before the Supreme Court had been that this was not raised before the trial court in the first round and had not been considered by the trial court. He accordingly sought an adjournment to approach the Supreme Court for correction of his submission recorded in the order of the Supreme Court dated 13.04.2018.
11.... Petitioner
thereafter filed an application before the Supreme Court being M.A. 540/2019 in SLP (Crl.)2974/2018, inter-alia, seeking a clarification from the Supreme Court that his submission had been that the plea of ouster of the petitioner was not raised before the trial court in the first round of litigation. Said application has been dismissed by the Supreme Court by order dated 25.03.2019. CRL.REV.P272017 Page 4 of 5 12. In view of the fact that the application of the petitioner seeking clarification has been rejected by the Supreme Court and further, as noticed above, it is evident from the memo of appeal of the first round of litigation and the order of the appellate court dated 11.03.2016 of the first round of litigation, that petitioner had specifically taken a plea of ouster from residence and said plea was considered by the appellate court and rejected, I find no ground to review the judgment dated 07.02.2018. The review petition is accordingly dismissed. Interim order is vacated.
13. Order dasti under signatures of the Court Master. MAY23 2019 ‘rs’ SANJEEV SACHDEVA, J CRL.REV.P272017 Page 5 of 5