Delhi High Court
Kamlesh Kumar Tiwari vs Kamini Tiwari on 7 February, 2018
$~70
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 07.02.2018
+ CRL.REV.P.27/2017
KAMLESH KUMAR TIWARI ..... Petitioner
Versus
KAMINI TIWARI ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr M.Hasibuddin
For the Respondent : Mr S.K.Singh
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
07.02.2018
SANJEEV SACHDEVA, J. (ORAL)
Crl.M.A.491/207(delay in re-filing the petition for 37 days)
1. For the reasons stated in the application, the application is
allowed. The delay in re-filing the petition is condoned.
2. The application stands disposed of accordingly.
CRL.REV.P.27/2017 & Crl.M.A.489/2017(stay)
1. The petitioner impugns order dated 31.08.2016, whereby two
Appeals; one filed by the petitioner and the other filed by the
respondent, were disposed of. Both parties had filed an Appeal
against the order dated 11.04.2016 of the Metropolitan Magistrate.
2. By an order dated 23.12.2014, interim maintenance was fixed at
the rate of Rs.25,000/- per month for the respondent and Rs.15,000/-
per month for the child. The petitioner appealed against the said
order. The Appellate Court, by order dated 11.03.2016, dismissed the
Appeal of the petitioner.
3. Thereafter, the petitioner filed an application seeking
modification of the interim maintenance contending that there was
change in circumstances.
4. It is contended by the petitioner that after the order fixing
maintenance was passed, the respondent had thrown the petitioner out
of residence and accordingly, petitioner had to take alternative
accommodation.
5. The learned Trial Court, by order dated 11.07.2016, held that
there was indeed change in circumstances for reasons beyond the
control of the petitioner (respondent therein) and accordingly, reduced
the maintenance payable to the respondent from Rs.25,000/- to
Rs.15,000/- per month.
6. Aggrieved by this order, both parties filed an Appeal. Even
though the application of the petitioner was allowed, and maintenance
was reduced, the petitioner filed an Appeal. The respondent being
aggrieved by the order of reduction of maintenance filed an Appeal.
7. The Appellate Court, by the impugned order, rejected the
Appeal of the petitioner and allowed the Appeal of the respondent on
the premise that the order dated 23.12.2014 had been affirmed by the
Appellate Court on 11.03.2016 and the said order had become final
and there were no changed circumstances. The Court was of the view
that once the Appellate Court had already taken into consideration the
alleged changed circumstances, in the first round itself, the Trial Court
could not have re-visited the order and reduced the maintenance
amount.
8. The changed circumstance, referred to by the petitioner, is the
plea that the petitioner was ousted on 24.01.2015 by respondent from
residence.
9. Perusal of order dated 11.03.2016 of the Appellate Court shows
that the contention of the petitioner that the petitioner was ousted from
his residence on 24.01.2015 was specifically raised before the
Appellate Court and dealt with by the Appellate Court in the first
round itself. The Appellate Court, after considering the said plea,
declined to interfere with the order of the Trial Court assessing
maintenance at the rate of Rs.25,000/- per month for the respondent
and Rs.15,000/- per month for the child.
10. It is an admitted position that no further proceedings were
undertaken after the Appellate Court's order dated 11.03.2016 and
thus, the order of the Trial Court dated 23.12.2014 merged with the
order of the Appellate Court dated 11.03.2016 and the said orders
became final.
11. The plea of the petitioner that petitioner was ousted on
24.01.2015, having been dealt with by the Appellate Court and the
earlier order of the trial court, assessing maintenance, having merged
with the order of the Appellate Court, it was not permissible for the
Trial Court to have re-visited the same without any changed
circumstance being shown to the Trial Court.
12. By the impugned order, the Appellate Court has noticed that the
order passed by the Trial Court had attained finality. The Trial Court
has also noticed that the order directing reduction of maintenance is
also premised on the plea that the income of the respondent has
increased because of the implementation of the recommendations of
the Seventh Pay Commission and, however, the Trial Court has erred
in not noticing that even the income of the petitioner had increased on
account of the implementation of the recommendations of the Seventh
Pay Commission.
13. Keeping in view the fact that the order of the Appellate Court
confirming the maintenance, in the first round, had attained finality
and there was no changed circumstance affecting maintenance, it was
not open to the Trial Court to have re-visited the said order and this is
the reason why the Appellate Court, by the impugned order, has set
aside the order of the Trial Court.
14. I find no infirmity with the approach of the Appellate Court and
the view taken by the Appellate Court in the impugned order.
15. In view of the above, I find no merit in the petition.
16. The Petition is accordingly dismissed.
17. Order Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
February 07, 2018/'Sn'
