Jharkhand High Court
Babru Bahan Kumbhkar @ Bobru Bahan ... vs Kalyani Kumbhakar on 22 March, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 322 of 2019
Babru Bahan Kumbhkar @ Bobru Bahan Kumbhkar --- --- Appellant
Versus
1.Kalyani Kumbhakar
2.Deepika Kumbhakar --- --- Respondents
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE DEEPAK ROSHAN
For the Appellant : Mr. Amarendra Kumar, Advocate
For the Respondent :
09/22.03.2022 Mediation has remained a non-starter as per the report of the
learned Mediator bearing letter no. 658 dated 28.02.2022. This appeal
suffers from a delay of 238 days, for condonation of which I.A. No. 159
of 2021 has been preferred.
This appeal is directed against the judgment dated 15.03.2019
passed in O.M. No. 36 of 2017 by the court of learned Principal Judge,
Family Court, Seraikella-Kharsawan whereby the prayer of the
petitioners/ respondents herein for grant of maintenance under Section
19 of the Hindu Adoption and Maintenance Act, 1956 has been allowed
and a maintenance of Rs.4000/- per month has been granted to the
petitioners/ respondents herein.
Learned counsel for the appellant submits that on some erroneous
advice, appellant had earlier invoked Article 227 of the Constitution of
India. Therefore, appeal being the right remedy, appellant has preferred
this appeal. However, it appears that the learned Writ Court has by order
dated 24.09.2019 passed in W.P.(C) No. 3905 of 2019 dismissed the writ
petition holding as under:
"22. It is thus evident that the legal position is settled that the
supervisory power conferred under Article 227 of the
Constitution of India is to be exercised by High Court, if the
finding recorded by the trial Court is erroneous that is suffers
from perversity and error is apparent on the face of record.
23. But, according to conscious view of this Court, the finding
recorded by the trial Court is based upon the evidence and
suffers from no perversity and, therefore, there is no error on the
face of record warranting interference by this Court under
Article 227 of the Constitution of India.
24. It is further settled position of law that in case of finding of
facts, the High Court should not interfere in exercise of its
jurisdiction under Article 227 of the Constitution, in the guise of
exercising its jurisdiction under Article 227 and converting itself
into a Court of appeal, accordingly, this Court refrains itself
from exercising the jurisdiction under Article 227 of the
Constitution of India.
25. In consequence thereof, this writ petition lacks merit, fails
and is dismissed."
It appears that no liberty has been granted to the petitioner to
invoke the appellate remedy and the findings appears to be based both
on merits and maintainability. Therefore, we are not inclined to entertain
this appeal after the appellant has already exhausted the remedy under
Article 227 of the Constitution of India.
Learned counsel for the appellant however seeks liberty to
approach the Writ Court for review of the order to the extent of granting
liberty to invoke the appellate jurisdiction. He is at liberty to do so, if
permissible in law. However, the justification shown for delay in
preferring this appeal in the aforesaid circumstances cannot be accepted.
I.A. No. 159 of 2021 is rejected. Consequently, instant appeal also stands
dismissed. Pending I.A. is closed.
(Aparesh Kumar Singh, J.)
(Deepak Roshan, J.)
A.Mohanty
