Telangana High Court
Sri.G.Muralidhar Rao vs Smt. G.Shalini on 19 April, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
CIVIL REVISION PETITION No.212 of 2024
O R D E R:
Heard Sri G.M.Mohiuddin, learned counsel representing Sri V.V.Subramanyam, learned counsel appearing for the petitioner/husband and Sri A.Suryanarayana, learned counsel appearing for the respondent/wife.
2. This Civil Revision Petition filed under Article 227 of the Constitution of India assails the order dated 22.11.2023, whereby the Court below declined to register the application preferred by the petitioner/husband under Order XXI Rule 33 (3) read with Section 151 of Code of Civil Procedure (herein after referred to as 'C.P.C.').
3. In short, the facts necessary for adjudication of this matter are that the petitioner/husband and respondent/wife were not in good terms. This led to various litigations. In O.P.No.403 of 2001 on the file of Judge, Family Court, City Civil Court, Hyderabad, the petitioner/husband was directed to pay a sum of Rs.20,000/- per month towards maintenance of respondent/wife. The petitioner/husband filed C.R.P.No.3065 of 2016 before the erstwhile High Court for the States of Telangana and Andhra 2 SP,J crp_212_2024 Pradesh and after hearing both the parties, the High Court reduced the said maintenance amount from Rs.20,000/- to Rs.15,000/- per month.
4. During the course of hearing, learned counsel for the parties agreed that petitioner/husband in various installments paid the said amount. On certain occasions, he could pay it in full whereas in other occasions, it was in part. Learned counsel for the parties also agreed that no doubt, there are arrears of allowance to be paid by the petitioner/husband, if said is counted as Rs.15,000/- per month.
5. The bone of contention of learned counsel for the petitioner/husband is that the petitioner/husband filed application under Order XXI Rule 33(3) C.P.C. for further reduction of the said amount. The prayer is made because the petitioner/husband's business came to an end and he himself is surviving on the basis of financial aid received from his daughter. Thus, he is not in a position to pay Rs.15,000/- per month also. The Court below passed the impugned order, dated 22.11.2023 and opined that the petitioner/husband is admittedly not complying with the order passed in C.R.P.No.3065 of 2016.
6. Accordingly, the petition filed under Order XXI Rule 33(3) C.P.C. was ordered to be registered subject to compliance of the 3 SP,J crp_212_2024 order, dated 07.09.2016 passed in C.R.P.No.3065 of 2016. The singular ground of attack to this condition is that Order XXI Rule 33(3) C.P.C. no where provides for any such impediment and the Court below was not justified in reading something in the statute which is not prescribed. Putting it differently, it was canvassed that the Court below can decide the petition either way on merits but compliance of the order in C.R.P.No.3065 of 2016 cannot be a condition precedent for registration of the application under Order XXI Rule 33 (3) C.P.C.
7. Sounding a contra note, learned counsel for the other side submits that the petitioner/husband is not entitled to get any relief because he has not complied with the order, dated 07.09.2016 passed in C.R.P.No.3065 of 2016. He placed reliance on the concluding para of order of Madhya Pradesh High Court in Smt.Neha Gautam v. Rajeev Gautam 1, wherein the High Court directed to make payment as condition precedent. No other point is pressed by learned counsel for the parties.
8. Order XXI Rule 33(3) C.P.C. reads as under:
"ORDER XXI:- Execution of Decrees and Orders Payment under Decree
33. Discretion of Court in executing decrees for restitution of conjugal rights.--
(1) ...1 M.P.No.851 of 2020 4
SP,J crp_212_2024 (2)...
(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again review the same, either wholly or in part as it may think just..."
9. As rightly pointed out by learned counsel for the petitioner/husband, the provision is independent and is not subject to compliance of any Court order etc. This is settled that if a provision of law is clear and unambiguous, it must be given effect to irrespective of its consequence. (see Nelson Motis v. Union of India 2).
10. So far, order of Madhya Pradesh High Court in Smt.Neha Gautam's case (1 Supra) is concerned, in the operative portion of the order, the High Court directed that the arrears of pay of periodical payments be made and it should be condition precedent for considering the pending application or any other application which may be filed by the respondent. This is trite that the judgment of a Court is binding or has a persuasive value for the principles decided by it and not what is logically flowing from it (see Union of India v.Dhanwanti Devi 3; Director of Settlements, A.P. v. M.R. Apparao 4; Secunderabad Club v. 2 (1992) 4 SCC 711 3 (1996) 6 SCC 44 4 (2002) 4 SCC 638 5 SP,J crp_212_2024 CIT 5). As a principle of law, it has not been decided by the High Court in Smt.Neha Gautam's case (2 Supra) that application under Order XXI Rule 33 (3) C.P.C. is not tenable unless the maintenance amount directed by the Court in previous round is deposited.
11. In this view of the matter, the order impugned cannot be countenanced to the extent it was made subject to compliance of order, dated 07.09.2016 passed in C.R.P.No.3065 of 2016. The order dated 07.09.2016 is quashed. As a result, the Principle Family Court, City Civil Court, Hyderabad, is directed to decide the pending application of the petitioner/husband under Order XXI Rule 33 (3) C.P.C. on its own merits without putting the aforesaid condition.
12. The Civil Revision Petition is disposed of without expressing any opinion on merits. There shall be no order as to costs.
________________ SUJOY PAUL, J Date : 19.04.2024 MYK/TMK 5 2023 SCC OnLine SC 1004