Sanjay S/O Krushnaji Sakdeo vs Krushnaji S/O Sitaram Sakdeo And ...
2023 Latest Caselaw 1338 Bom

Judgment                                  1                    18.wp.779.2022 judg.odt




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                NAGPUR BENCH, NAGPUR.

           CRIMINAL WRIT PETITION NO.779 OF 2022

      Sanjay S/o. Krushnaji Sakdeo,
      Aged : 52 Yrs.,
      R/o. Bhiwapur Ward behind
      Vaishali Budhha Vihar,
      Division 10, Chandrapur                                .... PETITIONER

                                // VERSUS //


     1. Krushnaji S/o. Sitaram Sakdeo,
       Aged about 83 Yrs.,

   2. Pramila W/o. Krushnaji Sakdeo,
     Aged about 71 Yrs.,
     Both R/o. Old BNR Railway Station,
     Samrat Ashok Chowk, Chandrapur     .... RESPONDENTS
__________________________________________________________
            Mr Harish Thakur, Advocate for the petitioner
            Ms S. S. Jachak (Gaikee), Advocate (appointed) for respondents
__________________________________________________________

                    CORAM : G. A. SANAP, J.

DATED : 8th FEBRUARY, 2023

ORAL JUDGMENT :

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally

with the consent of learned Advocates for the parties.

Judgment 2 18.wp.779.2022 judg.odt

3. In this writ petition, the petitioner has challenged the

order dated 15.09.2022 passed by the presiding officer of the

Tribunal constituted under Section 7 of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007 (For short 'Act of

2007'), whereby the presiding officer of the Tribunal allowed the

application made by the respondent Nos. 1 and 2 under Section 9

of the Act of 2007 and quantified the maintenance @ of

Rs.10,000/- per month for the respondent Nos. 1 and 2.

4. There is no dispute that the petitioner is the son of the

respondent No.1 and respondent No. 2 is the step mother of the

petitioner. This petition is argued by the learned Advocates for the

parties on preliminary issue as to whether the presiding officer of

the Tribunal had followed the procedure prescribed under the Act

of 2007 and Rules framed there under in the matter of conducting

the inquiry, leading evidence etc. Learned Advocate for the

petitioner drew my attention to the Sections 4 and 8 of the Act of

2007 and submitted that the order passed by the presiding officer

of the Tribunal does not satisfy the requirements of Sections 4 and Judgment 3 18.wp.779.2022 judg.odt

8 of the Act of 2007. Learned Advocate also relied upon Rule 13 of

the Maharashtra Maintenance of Welfare of Parents and Senior

Citizens Rules, 2010 (For Short 'Rules of 2010') and submitted

that the provisions of this Rule had not been complied with in the

matter of granting an opportunity to the parties to lead the

evidence.

5. Learned Advocate appointed to represent the

respondent Nos.1 and 2 submits that the order of maintenance has

to be granted only when the senior citizens including parents

proves that he or she is unable to maintain himself or herself from

his or her own earnings or out of the property owned by him or her.

Learned Advocate for the respondents has not disputed the

procedure required to be followed by the Tribunal as contemplated

under Section 8 of the Act of 2007 and Rule 13 of the Rules of

2010.

6. Learned Advocate for the petitioner in order to make

good his submissions has placed on record the copy of the order-

sheet /roznama from the proceeding initiated before the Tribunal.

Judgment 4 18.wp.779.2022 judg.odt

Learned Advocate on the basis of this order-sheet/roznama pointed

out that the proceeding was not fixed by the Tribunal for recording

the evidence of the parties. On the basis of this, learned Advocate

submitted that since the matter was not fixed for leading the

evidence by the parties, the parties had no notice that they would

be required to lead the evidence to substantiate their rival

contentions.

7. The combine reading of Sections 4, 8 and 9 of the Act

of 2007 and Rule 13 of the Rules of 2010 would show that the

stage for recording the evidence is contemplated under the Act as

well as by the Rules. Rule 13(1) specifically provided that Tribunal

shall give to the parties an opportunity of leading evidence in

support of their respective claims, and shall, after holding a

summary inquiry as provided in sub-section (1) of Section 8, pass

such order as it may deem fit. It is true that the proceedings before

the Tribunal has to be tried summarily. As provided in Rule 13 (1)

of the Rules of 2010 a stage for evidence has been contemplated.

The duty is cast upon the Tribunal to see that the parties are given Judgment 5 18.wp.779.2022 judg.odt

an opportunity to lead the evidence to substantiate their rival

claims. This mandatory provision cannot be deviated unless and

until there is a specific mention in the order-sheet/roznama that

there is no such need to record the evidence or that the parties

despite granting them an opportunity to lead the evidence have

chosen not to lead the evidence. In my view, on both these counts

the order-sheet/roznama does not contain necessary statement. In

this case, admittedly, the parties did not adduce the evidence. It is

to be noted that the parties may not have adduced the evidence or

made a request to adduce the evidence because of the failure on the

part of the Tribunal to fix the case on a particular date after

completion of pleadings for adducing the evidence. If the matter

had been fixed for adducing evidence the parties would have got

the notice of the same and acted accordingly. In my view, therefore,

the grievance made by the petitioner is supported by the provisions

and the Rules, as above. Learned Advocate for the respondents

submit that they have no objection to go before the Tribunal and to

lead the evidence or to take a decision on that aspect and make an

appropriate statement before the authority.

Judgment 6 18.wp.779.2022 judg.odt

8. Learned Advocate for the respondents submits that

considering the precarious position in which the respondents are

placed, this Court may set aside the order, but direct the petitioner

to continue to pay the maintenance @ of Rs.10,000/- per month

till the disposal of the matter. In my view, this submission is fair

and reasonable. Learned Advocate for the petitioner submits that

the Court may pass an appropriate order on this point, however, he

submits that the Tribunal may be requested to dispose of the matter

expeditiously. In my view, his submission is reasonable.

9. In view of the above, the petition is allowed.

10. The impugned order dated 15.09.2022 is quashed and

set aside.

11. The matter is remanded to the Tribunal for deciding it

afresh by granting an opportunity of leading evidence to the parties,

if they so desire. The Tribunal shall grant a specific opportunity to

both the parties to lead the evidence. In case, the parties chose not Judgment 7 18.wp.779.2022 judg.odt

to lead the evidence then the Tribunal shall make note of the same

in the Roznama and proceed further.

12. Learned presiding officer of the Tribunal is requested

to dispose of the application within three months from the date of

the appearance of the parties.

13. It is made clear that till the decision of the application

the petitioner shall continue to pay sum of Rs.10,000/- to the

respondent Nos. 1 and 2 per month. After this order, the monthly

maintenance be deposited before the Tribunal on or before 15 th day

of every month. The parties are directed to appear before the

Tribunal on 20.02.2023.

14. The fees of Rs.7,000/- be paid to learned appointed

Advocate for respondents, as remuneration. Rule is made absolute

in the above terms. No costs.

( G. A. SANAP, J.)

Namrata Judgment 8 18.wp.779.2022 judg.odt

Signed By:NAMRATA YOGESH DHARKAR P. A.

High Court Nagpur Signing Date:10.02.2023 15:23