Ramesh Kumar Vs. Shushma Ram and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 4. learned counsel for the wife, on the other hand, contended that the amount of maintenance, both interim as well as final, had been fixed for good reasons detailed in the order and in the exercise of the revisional powers of this court the discretion exercised by the trial magistrate ought not to be interfered with.a.p. chowdhri, j.1. this order will dispose of criminal revision no. 720 of 1989 and criminal misc. 2967 of 1990. both these petitions arise out of the proceedings instituted by smt. sushma rani and her infant child against ramesh kumar under section 125 of the code of criminal procedure.2. sushma rani was married to ramesh kumar on october 25, 1987. the parties have not been living together since october, 1988. a son was born on october 18, 1988. the wife filed a petition under section 125 on january 28 1989, claiming rs. 500/- per mensem as maintenance for herself and an equal amount for her minor son. the husband is employed in cbi and, according to the wife, he was getting rs. 1,800/- per mensem as emoluments. in the written statement filed by the husband, it was stated that his carry-home salary was rs. 1,300/-and he had to maintain aged parents. by order dated june 9, 1989, the judicial magistrate ist class, malerkotla, fixed interim maintenance at the rate of rs 300/-per mensem for the wife and rs. 200/- per mensem for the minor son. the amount was made payable from the date of the main petition. the husband filed criminal revision noted above against the said order. by order dated november 9, 1989, the learned magistrate finally disposed of the petition under section 125 of the code of criminal procedure and fixed maintenance at the rate of rs. 400/- for the wife and at the rate of rs. 200/- for the child. it is against the final order that crl. misc. no. 2967 of 1990 has been filed by the husband.3. the contention of shri girish agnihotri, learned counsel for the petitioner, is that all along the husband was ready and willing to keep the wife and he could not, therefore, be asked to pay maintenance to the wife and the child. in support of his contention, learned counsel pointed out that the husband had filed an application under section 9 of the hindu marriage act, 1955, for restitution of conjugal rights, which was pending in the court at delhi. his second submission is that the amount fixed by the court is excessive. the husband has to support his old parents. he has also to meet the cost of litigation and at the time of admission of criminal misc. no. 2967 of 1990 this court directed the arrears to be paid at the rate of rs. 350/- per mensem. this order had since been complied with. learned counsel also adverted to the fact that the maximum maintenance under the statute was rs. 500/- per mensem and this indicated the broad policy of the parliament and should have been taken into account in the case of a person with a very limited salary and liability to maintain aged parents.4. learned counsel for the wife, on the other hand, contended that the amount of maintenance, both interim as well as final, had been fixed for good reasons detailed in the order and in the exercise of the revisional powers of this court the discretion exercised by the trial magistrate ought not to be interfered with. learned counsel also contended that interim maintenance in the nature of things was only tentative and should not be taken to be final and should not therefore, affect the final determination of the amount of maintenance fixed at the time of the disposal of the petition.5. i have given anxious consideration to the respective submissions of the learned counsel.6. in the absence of any material on record, it cannot be doubted that carry home salary of the husband was rs. 1,300/-. it cannot also be doubted that he has to support aged parents. it is on a consideration of the totality of facts and circumstances of each case that a fair and reasonable amount of maintenance has to be fixed. by order dated june 9, 1989, the learned magistrate had fixed rs. 300/- per mensem for the wife and yet at the time of final determination the amount was hiked to rs. 400/- without there being any additional material on record such as that in the interregnum period the salary of the husband had increased. this appears to be arbitrary. there was hardly any justification for increasing the amount. technically, no doubt, interim maintenance in the nature of things was only tentative, but a perusal of the order recorded in this behalf by the learned magistrate shows that he had taken into consideration the relevant facts and material on the file at the time of fixing the interim maintenance. keeping in view the carry home salary and the liability of the husband, an allowance of rs. 200/- per mensem for the minor in addition to the allowance fixed for the wife appears to be on the higher side.7. for the aforesaid reasons, the maintenance allowance for the wife is fixed at the rate of rs. 300/- per mensem and that for the child at the rate of rs. 100/- per mensem. the amount already paid shall stand adjusted. the balance shall be paid within three months. the above maintenance allowance shall be effective from the date of the main petition i.e. january 28, 1989. both the matters are disposed of in these terms.