Delhi High Court
Kamlesh Kumar Tiwari vs Kamini Tiwari on 23 May, 2019
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.05.2019
+ CRL.REV.P. 27/2017
KAMLESH KUMAR TIWARI ..... Petitioner
versus
KAMINI TIWARI ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Vaibhav Prakash Shukla, Mr. Mukesh Kumar
Saroja, Mr. Dharmendra Kumar, Mr. Abhinandana
Kain, Mr. K. Shukla, Mr. Piyush Dwivedi, Advs.
With petitioner in person.
For the Respondent : Mr. S.K. Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
SANJEEV SACHDEVA, J. (ORAL)
REV. PET. 195/2018 & Crl. M.A. 8706/2018
1. Petitioner had filed the subject revision petition impugning
order dated 31.08.2016 whereby two appeals; one filed by the
petitioner and the other filed by the respondent were disposed of. Both
the appeals had impugned order dated 11.04.2016 passed by the
Metropolitan Magistrate, rejecting the application filed by the
petitioner under Section 25(2) of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as the DV Act).
2. By order dated 23.12.2014 interim maintenance was fixed and
the petitioner was directed to pay a sum of Rs. 25,000/- per month for
the respondent-wife and Rs. 15,000/- per month for the child.
Petitioner appealed against the said order and appellate court by order
dated 11.03.2016 dismissed the appeal filed by the petitioner.
3. Thereafter, petitioner filed an application under Section 25(2)
of DV Act, seeking modification of the interim maintenance fixed by
the court claiming change in circumstance. The change in
circumstance claimed by the petitioner was that he was ousted from
the residential home and had to incur extra expenditure for taking an
alternative accommodation.
4. The trial court by order dated 11.07.2016 held that there was a
change in circumstance and reduced the maintenance payable to the
respondent - wife from Rs. 25,000/- to Rs. 15,000/-.
5. Aggrieved by the said order, both the parties filed appeals. The
appellate court by order dated 30.11.2016 rejected the appeal of the
petitioner holding that in the first round, the plea of change in
circumstance, (i.e. ouster from the residential accommodation) was
raised by the petitioner before the appellate court and the same had
been considered and rejected and as such the petitioner could not have
filed an application under Section 25(2) of the D.V. Act contending
change in circumstance.
6. The petitioner, aggrieved by the order dated 30.11.2016 filed
the present revision petition. The revision petition was dismissed by
this Court by judgment dated 07.02.2018, inter-alia, holding that the
contention of the petitioner of ouster was specifically raised and dealt
with by the appellate court in the first round itself. The appellate court
in the first round after considering the said plea had declined to
interfere with the order of the trial court inter alia on the ground of
ouster. It was also noticed that the petitioner had not taken any further
proceedings after the order of the appellate court was passed in the
first round. The order of the trial court accordingly had merged with
the order of the appellate court and said order has become final.
Accordingly, the petition was dismissed.
7. The petitioner thereafter filed Special Leave Petition (Crl.) No.
2974 of 2018 before the Supreme Court and said Special Leave
Petition was disposed of by the Supreme Court by order dated
13.04.2018.
8. The Supreme Court in its order dated 13.04.2018 noticed the
contention of the counsel for the petitioner that this Court had
incorrectly recorded in its judgment dated 07.02.2018 that the plea of
ouster from residence was raised and considered by the appellate court
in the first round of litigation. Noticing the said contention, the
Supreme Court permitted the petitioner to file a review petition before
this Court. Consequently, the subject review petition has been filed.
9. When this review petition was taken up for consideration on
06.12.2018, during arguments it was pointed out by learned counsel
for the respondent that the Memo of Appeal of the first round of
litigation clearly showed that petitioner had taken the plea of ouster
from residence in the first round and the same had been considered by
the appellate court in the first round of litigation and it is so noticed in
its order dated 11.03.2016.
10. When learned counsel for the petitioner was faced with this
situation, he submitted that the submission of the petitioner before the
Supreme Court was not that the petitioner had not raised this plea
before the appellate court but his submission before the Supreme
Court had been that this was not raised before the trial court in the
first round and had not been considered by the trial court. He
accordingly sought an adjournment to approach the Supreme Court
for correction of his submission recorded in the order of the Supreme
Court dated 13.04.2018.
11. Petitioner thereafter filed an application before the Supreme
Court being M.A. 540/2019 in SLP (Crl.)2974/2018, inter-alia,
seeking a clarification from the Supreme Court that his submission
had been that the plea of ouster of the petitioner was not raised before
the trial court in the first round of litigation. Said application has been
dismissed by the Supreme Court by order dated 25.03.2019.
12. In view of the fact that the application of the petitioner seeking
clarification has been rejected by the Supreme Court and further, as
noticed above, it is evident from the memo of appeal of the first round
of litigation and the order of the appellate court dated 11.03.2016 of
the first round of litigation, that petitioner had specifically taken a plea
of ouster from residence and said plea was considered by the appellate
court and rejected, I find no ground to review the judgment dated
07.02.2018. The review petition is accordingly dismissed. Interim
order is vacated.
13. Order dasti under signatures of the Court Master.
MAY 23, 2019 SANJEEV SACHDEVA, J
'rs'
