Shri Nishan Singh vs Smt. Amarjeet Kaur
2002 Latest Caselaw 412 Del

JUDGMENT

Mahmood Ali Khan, J.

1. ADMIT.

2. On the request of the counsel for the parties arguments were heard for final disposal of the revision petition.

3. This revision petition is directed against an order of learned Additional District Judge dated 12.8.1998 by which, in a petition for divorce. on an application being moved by the respondent wife, he has fixed the interim maintenance of the respondent wife under Section 24 of the H.M.Act (in short the Act) @ Rs. 2500/- p.m. and of the minor child living with the respondent wife @Rs. 1000/- p.m. w.e.f. 08.1.1998 besides allowing the expenses of the proceedings at Rs. 2200/- to her. Along with the revision petition, an application is also filed for condensation of delay in filing of the revision petition.

4. Briefly stated, the facts leading to this revision petition are that the petitioner husband filed a petition under Section 13(1)(i)(a) of the Act for dissolution of his marriage with the respondent on the ground of cruelty and desertion by her. This petition was contested by the respondent wife. She also filed an application under Section 24 of the Act for grant of interim maintenance and tef expenses of the proceeding to her. It was alleged that she had no movable or immovable property and had no independent source of income excepting that she had been granted maintenance @Rs. 300/- p.m. for her and @Rs. 300/- p.m. for her minor daughter under Section 125 Cr.P.C. by a Metropolitan Magistrate. Even the amount of maintenance, so fixed, has not been paid by the petitioner and the execution proceedings are pending. The petitioner has also challenged that order in a revision petition, which is pending before an Additional Sessions Judge. It was further alleged that the petitioner had 1/5th share in the agricultural land, particulars of which were given in sub-para (i) of para-4 and 1/8th share in the agricultural land, which was detailed in sub-para (iii) of para-4. Besides, he has employed with a concern in Delhi on a salary of Rs. 4000/- p.m. He also owned tractors. buffaloes and cattles of the value of Rs. 5.00 lacs. he was also earning Rs. 3000/- p.m. as interest. There is nobody excepting the respondent and her daughter Ms. Harmeet, who is 9 years old, dependent upon the petitioner. She alleged that the total income of the petitioner was Rs. 25000/- p.m. as such, she was entitled to the maintenance of Rs. 8000/- p.m. He should also be directed to pay Rs. 5500/- as expenses of the proceeding. The application is supported by her affidavit.

5. The petitioner resisted this application and made counter allegations that the respondent was employed as a typist with M/s Sheetal Pawan Agency Private Limited, which job was given up by her two and a half years back on 06.7.1995 when her statement was recorded before the court with a view to claim maintenance from the petitioner. He admitted that he has not paid maintenance amount fixed by the Magistrate. As regards his own sources of income, the petitioner alleged that earlier he had a share in the agricultural land, as mentioned in sub-paras (i) and (iii) of para-4 of the application but it was mortgaged by him for meeting the expenses. He lost all his property in the litigation with the respondent. He denied that he was employed in Delhi and was earning Rs. 4000/- p.m. He alleged that he was living with his brothers and was dependant upon them for food and lodging. owning of tractors, buffaloes, cattles etc. was also denied. Similarly, it was also denied that he had income from interest, as alleged. Other allegations and claims of the respondent made in the application were also refuted.

6. In the rejoinder the respondent reiterated her allegations and denied those made in the reply.

7. The first question that arises for decision is whether the delay in filing the revision petition may be condoned. In the application under Section 5 of the Limitation Act the petitioner alleged that he had filed a divorce petition against the respondent in Karkardooma Court and had engaged Mr. R.K. Srivastava, advocate. His counsel had assured him that he was living in Karkardooma area and he would properly take care of the case if it was filed in Karkardooma courts. The petitioner himself attended some of the hearings but in the last week of July, 1998 he had to go to his native place in Ferozepur, Punjab. Sometimes thereafter he enquired about the case from him counsel and he was informed that the petition had been dismissed and that divorce could not be granted to him. He accepted that advice and did not pursue the matter further. In the first week of August, 1999 a process server came to the petitioner in Ferozepur. Punjab in connection with the execution proceedings pursuant to the order of the learned Additional District Judge. Ferozepur dated 12.8.1998. Prior to that the petitioner had no knowledge of the impugned order since his counsel had not intimated him about any such order having been passed, rather he had informed that the application was pending. After the dismissal of the petition, he did not pursue the matter any further. This prevented the petitioner from filing the present revision petition in time. After coming to know of the pendency of the execution proceeding, he contacted his counsel Mr. Srivastava who returned the brief and did not give any satisfactory reply. On 09.8.1999. he got the trial court record inspected and came to know about the order dated 12.8.1998 and subsequent order dated 26.8.1998 by which the petition was dismissed in default. He prayed for condensation of the delay on the ground that delay in filing of the revision petition was on account of sufficient cause. The application is supported by an affidavit of the petitioner.

8. Opposing this application, the respondent alleged that the petitioner, though a permanent resident of Ferozepur, yet was employed in a firm in Delhi and he had been staying at both the places intermittently. Same counsel, who represented the petitioner in the divorce petition, had also filed the maintenance proceeding before the Magistrate. He was his counsel in the appeal also. The petitioner was in regular touch with him. The petitioner was an educated man and he could not have filed the divorce proceeding in Karkardooma Courts on the mere advice of the counsel. No affidavit of the counsel has been filed by him. The allegation that the petitioner had gone to his native place at Ferozepur. Punjab in the last week of July, 1998 or that he had asked his counsel about the case or that on being told about its dismissal he had not pursued it further were denied. It was stated that the petitioner knew that the arguments were addressed on the application and the case was reserved for orders on the application on 2.5.1998. He knew about the maintenance order but did not appear on 26.8.1998 as he wanted to avoid the payment of maintenance. The court had no option but to dismiss the petition. The allegation of the petitioner that his counsel had not given him full information etc. was denied. It was specifically denied that in the first week of August, 1999 a process server informed the petitioner about the execution proceeding. It was alleged that the court at Ferozepur. Punjab executing the order had issued the attachment warrant on 13.8.1999, therefore, there was no occasion for the process server going to the residence of the petitioner in the first week of August, 1999. A copy of the warrant of attachment issued by the court at Ferozepur was annexed with the petition in support. Copy of the objections by the petitioner before that court was also filed. Moreover, it was alleged that the present revision petition was prepared and filed on 12.8.1999 but the attachment warrant is dated 13.8.1999 which meant that the petitioner had knowledge of the passing of the maintenance order dated 12.8.1998 much prior to the issuance of the attachment warrant dated 13.8.1999 by the Ferozepur court. All other allegations were also similarly refuted.

9. I have given careful consideration to the submissions made at the bar. Counsel for petitioner has no answer to the allegations made by the respondent that the warrant of attachment was issued by the Ferozepur court on 13.8.1999 and, therefore, the process server had no reason to go to the house of the petitioner in the first week of August, 1999. He could also not explain as to how the petition was drafted on 12.8.1999 when the warrant of attachment was issued by Ferozepur court on 13.8.1999, as shown by the copy of the warrant of attachment annexed to the reply. The petitioner claims that he came to know about of the pendency of the execution proceeding and the passing of the impugned order after the visit of the process server with the attachment warrant. The attachment warrant was not in existence in the first week of August, 1999. Therefore, all the allegations made by the petitioner about his gaining knowledge of the impugned order some times in the first week of August, 1999 from the process server of the Ferozepur court, where the execution proceedings were pending, seems to be false. Moreover, the petitioner had stated that he got in touch with his counsel after the divorce petition was dismissed. He knew about the hearing of argument on the maintenance application by the court. It is difficult to believe that the petitioner would not have enquired about the fate of the maintenance application on which orders were reserved by the court. Therefore, the contention of the petitioner that he did not know about the impugned order and came to know about it only in the first week of August, 1999 i.e. after about almost a year, therefore, does not inspire confidence, rather it stands falsified by the documentary evidence, which has been produced by the respondent in rebuttal. The petitioner had earlier suffered an order under Section 125 Cr.P.C. and had failed to honour it and pay the maintenance in accordance with it. The divorce petition was not decided on merit. It was dismissed in default. Therefore, there was no reason for the counsel to have wrongly advised the petitioner that he could not be granted the divorce on merit and the petitioner deciding not to pursue the matter further. Evidently the petitioner, who had not paid the maintenance as fixed by the Magistrate, did not want to pay the maintenance during the pendency of the divorce proceeding, therefore, decided not to appear and let the divorce petitioner dismissed in default. The delay in filing of the revision petition has not been explained. The petitioner has failed to show sufficient cause for condensation of delay. The application has no merit and it deserved to be dismissed. It is dismissed as such.

10. Even on merit the petitioner has no case. The petitioner has admitted that he had 1/5th share in the land which is mentioned in sub-para (i) of para-4 of the application of the respondent and 1/8th share in the agricultural land as detailed in sub-para(iii) of para-4 of the said application. However, he pleaded that he mortgaged that land in order to meet his own expenses and the expenses of litigating with the respondent. The statement of the area Patwari, which was recorded in the proceeding under Section 125 Cr.P.C., copy of which is on the record and has been referred to by the petitioner himself showed that the land still stands in the name of the petitioner jointly with his brothers. The petitioner is, therefore, still recorded holder of the said land. His contention that the land is not cultivated is not borne out from the revenue record and also from the statement of the area Patwari. The area Patwari Mr. Devi Lal examined as PW-3 in the proceedings under Section 125 Cr.P.C. stated in the examination-in-chief that except a portion of the land which was in residential use, rest of the land was under cultivation. In the cross-examination he did state that it is not cultivated but it is hard to believe that the agricultural land would not be cultivated for years together and would still continue to be recorded in the name of the petitioner and his brother. The petitioner and his four brothers are joint holder of the land. Therefore, the contention of the petitioner that he has no income from agricultural does not inspire confidence. He is interested in suppressing his income in order to defeat the claim of the respondent. Being an interest person, he could be believed only when his claim was supported by evidence. As regards the allegation of the respondent that the petitioner owned tractors and cattle etc., there is a denial of the petitioner. He has not filed even the affidavit of his brothers that the family did not own buffaloes and the tractors for cultivating the land. With regard to the income from interest, the respondent has not produced facts and figures about the investment of the petitioner, therefore, bare allegations will not be sufficient to conclude that the petitioner had another income of Rs. 3000/- p.m. from interest.

11. While estimating the income of a spouses in a proceeding under Section 24 of the Act, some guess work often tries to conceal his/her income in order to lower the income or defeat the claim of the opposite party. In this case also the petitioner ha snot disclosed all sources of his income. It was alleged by the respondent that he was employed in a concern in Delhi, which fact had been denied by the petitioner. But from the averments made in the reply, it appears the petitioner had been staying Delhi as well as in Ferozepur, Punjab. He alleged that in the last week of July, 1999 he had gone to his native place in Ferozepur. He has not explained as to why was he staying in Delhi. He could not live here without a meaningful employment or regular source of income. The petitioner obviously has tried to conceal his income. The allegation of the respondent that he was working and was earning Rs. 4000/- p.m. in Delhi, therefore, cannot be disbelieve.

12. In the totality of the facts and circumstances, there does not appear any legal infirmity in the conclusion drawn by the learned Additional District Judge that the petitioner had sufficient sources of income. The amount of the maintenance and the litigation expenses of the respondent and their minor daughter fixed by him seems to be reasonable.

13. The result of the above discussion is that even on merit there does not appear any error of jurisdiction, illegality or material irregularity in exercising the jurisdiction by the learned Additional District Judge warranting interference by this court.

14. The result is that the petition is dismissed.