Jharkhand High Court
Bijay Mahto @ Vijay Mahto @ Vijay ... vs The State Of Jharkhand & Ors on 19 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 184 of 2022
......
Bijay Mahto @ Vijay Mahto @ Vijay Nath Mahto ...... Petitioner
Versus
The State of Jharkhand & Ors. ......Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
.......
For the Petitioner : Mr. Pandey Neeraj Rai, Advocate
For the respondent-State : Ms. Amrita Banerjee, AC to G.P.-I
For the respondent No.2 : Mr. Ajay Kumar Trivedi, Advocate
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06/Dated: 19/08/2023.
Heard, Mr. Pandey Neeraj Rai, learned counsel appearing on behalf of
the petitioner, Ms. Amrita Banerjee, learned AC to G.P.-I appearing for the
State and Mr. Ajay Kumar Trivedi, learned counsel appearing on behalf of
the respondent No.2.
2. This petition has been filed for setting aside the order dated 31.03.2018
and 25.11.2021 passed in Miscellaneous Case No.1 of 2014 by learned court
of Principal Judge, Family Court, Lohardaga. The prayer is also made for
setting aside ex-parte judgment dated 20.08.2013 passed in Maintenance Case
No.16 of 2009 by learned court of Principal District Judge-cum-Principal
Judge, Family Court, Lohardaga.
3. Learned counsel for the petitioner submits that petitioner is the
husband of respondent No.2, namely, Reeta Devi. He submits that there is
matrimonial dispute between the parties and due to that a series of litigation
including a Complaint Case No.9 of 2006, Maintenance Case No.5 of 2006
was filed which was stood settled amicably pursuant to order dated
06.08.2008 contained in Annexure-1. He further submits that by way of
agreement the Complaint Case No.9 of 2006, Maintenance Case No.5 of 2006
and Complaint Case No.51 of 2006 was decided to be closed after payment
of a sum of Rs.68,000/- to the respondent No.2. He further submits that said
amount was paid to the respondent No.2 in different installments and a total
amount has been paid and that has been recorded by learned court of
Principal Judge, Family Court, Lohardaga in order dated 09.06.2009
contained in Annexure-2. He further submits that thereafter the Maintenance
Case No.16 of 2009 was filed on 30.10.2009. He further submits that in this
case, petitioner has not received any notice and the said case was decided by
the learned court ex-parte against the petitioner by order dated 20.08.2013
passed in Maintenance Case No.16 of 2009. He further submits that the
learned court in paragraph 19 of the said order has erroneously held that the
Maintenance Case No.5 of 2006 is disposed of in absence of respondent No.2
and the said order dated 09.06.2009 passed in Maintenance Case No.5 of 2006
was recalled by the present order, which is against the mandate of law as the
said order was passed under Section 125 of Cr.P.C. and Section 362 of
Cr.P.C. restricts of review of any order or recall. He further submits that is
based on this impugned order, Miscellaneous Case No.1 of 2014 was filed in
which by orders dated 31.03.2018 and 25.11.2021, the distress warrant has
been issued to the petitioner and when the police came to serve the distress
warrant, petitioner came to know about these orders and thereafter present
writ petition has been filed. He submits that by order dated 10.08.2022, the
notice was issued upon the respondent No.2 and the interim protection was
provided to the petitioner. In this background, he submits that subsequent
orders are without jurisdiction that too when the orders which has attained
finality as the earlier order proceeding was not challenged by the respondent
No.2. On this ground he submits that the impugned order may kindly be
quashed. He submits that this order are nullity in the eyes of law.
4. On the other hand, Mr. Ajay Kumar Trivedi, learned counsel
appearing on behalf of respondent No.2 submits that respondent No.2 has
not received entire amount of Rs.68,000/- and she has only received
Rs.15,000/-. He further submits that in this background subsequently
Maintenance Case No.16 of 2009 was filed and the learned court has rightly
passed the order. He submits that she is the wife of the petitioner and the
petitioner is trying to avoid his responsibility. On this ground he submits
that this case may kindly be dismissed.
5. Ms. Amrita Banerjee, learned AC to G.P.-I appearing for the State
submits that order dated 09.06.2009 contained in Annexure-2 clearly suggest
that the said amount of Rs.68,000/- was paid to the respondent No.2.
6. In view of the above submissions, learned counsel for the parties, this
Court has gone through the material on record including the impugned
orders and finds that admittedly by way of Annexure-1, which is agreement
between the petitioner and respondent No.2 it was decided to withdraw the
cases filed by the respondent No.2. The Maintenance Case No.5 of 2006 was
also the subject matter of the agreement and it was decided that all the cases
will be withdrawn after payment of Rs.68,000/-. The order dated 09.06.2009
passed in Miscellaneous Case No.05 of 2006 contained in Annexure-2 by
learned Principal Judge, Family Court, Lohardaga clearly suggests that in
installment the said amount was paid. Subsequently the Maintenance Case
No.16 of 2009 was filed and in that ex-parte order was passed against the
petitioner by order dated 20.08.2013. Learned Principal District Judge,
Family Court, Lohardaga recalled the order passed in Miscellaneous Case
No.5 of 2006 dated 09.06.2009 on the ground that order passed in absence of
respondent No.2 and subsequently the distress warrant has been issued by
orders dated 31.03.2018 and 25.11.2021. The Court finds that in the
agreement it was decided to drop the case including the Maintenance case
filed after payment of Rs.68,000/-. The order contained in Annexure-2
clearly speaks that Rs.68,000/- was paid by the petitioner to the respondent
No.2. The said order was not challenged by the respondent No.2 and the
second case was filed and the second case the order was passed to recall the
order passed in Miscellaneous Case No.5 of 2006.
7. Once a power was utilized under the criminal jurisdiction that order
can not be recalled or review by the learned court in view of Section 362 of
Cr.P.C., which is against the mandate of law and based on that distress
warrant has been issued by the two orders, which is not sustainable in the
eyes of law. The Court has also perused the counter-affidavit filed by
respondent No.2 and finds that in paragraph Nos.3 and 4 the statement
made therein misleading in the facts and circumstances of this case.
8. In view of above facts, reasons and analysis the impugned orders
dated 31.03.2018 and 25.11.2021 arising out of Miscellaneous Case No.1 of
2014 and order dated 20.08.2013 passed in Maintenance Case No.16 of 2009
are hereby set aside.
9. Accordingly, the instant petition is allowed and disposed of.
10. The interim order is vacated.
(Sanjay Kumar Dwivedi, J.)
R.S-
