Manohar @ Mounesh vs Kamakshi And Ors
2021 Latest Caselaw 3535 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 27TH DAY OF OCTOBER 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

         CRIMINAL PETITION No.200127/2019

BETWEEN:

MANOHAR @ MOUNESH
S/O NAGALINGAPPA
AGED ABOUT 42 YEARS
OCC: CLERK IN KANAKADAS COLLEGE
SUKAL PET, SINDHANOR
TURAVIHAL VILLAGE
SINDHANUR TALUKA
DIST. RAICHUR-584101
                                     ... PETITIONER

(BY SRI MAHANTESH PATIL, ADVOCATE)

AND:

1.     KAMAKSHI
       D/O MANOHAR @ MOUNESH
       AGE: 12 YEARS, OCC: STUDENT

2.     AMRUTA
       D/O MANOHAR @ MOUNESH
       AGE: 10 YEARS, OCC: STUDENT

3.     NAGALINGA @ HARSHA
       S/O MANOHAR @ MOUNESH
       AGE: 8 YEARS, OCC: STUDENT

4.     GANGAPPA S/O DEVAPPA
       AGE: 67 YEARS, OCC: NIL
                             2




     ALL ARE R/O SANTEKALLUR
     TQ. LINGASUGUR
     DIST. RAICHUR-584101

     (RESPONDENT NOS.1 TO 3 ARE MINORS
     REPRESENTED BY THEIR NEXT FRIEND
     RESPONDENT NO.4 I.E., GRAND FATHER)

                                        ... RESPONDENTS

(BY SRI CHAITANYAKUMAR C.M., ADVOCATE)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE, PRAYING TO QUASH THE
IMPUGNED    ORDER     DATED     23.08.2018   PASSED   IN
CRL.MISC.NO.02/2017 BY THE SENIOR CIVIL JUDGE AND JMFC,
LINGASUGUR AND ORDER BEARING NO.¸ÀA/PÀA/R.¹.©./16/2018-19

DATED 18.11.2018 PASSED BY TAHASILDAR SINDHANUR AND
CONSEQUENTLY, DISMISS THE CRL.MISC.NO.02/2017.


     THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:


                       ORDER

Heard learned counsel appearing for the petitioner

and learned counsel appearing for the respondents.

2. This petition is filed under Section 482 of

Cr.P.C., seeking to quash the impugned order dated

23.08.2018 passed by the Senior Civil Judge and JMFC,

Lingasugur, in Criminal Miscellaneous No.2/2017 and the

order bearing No.¸ÀA/PÀA/r.¹.©./16/2018-19 dated 18.11.2018

passed by the Tahsildar, Sindhanur and consequently, to

dismiss Criminal Miscellaneous No.2/2017.

3. The factual matrix of the case is that

petitioner is father of respondent Nos.1 to 3 and

respondent No.4 being grand father of respondent Nos.1

to 3 filed Criminal Miscellaneous No.19/2011 under

Section 125 of Cr.P.C., seeking maintenance. The

learned JMFC, Lingasugur, by order dated 17.06.2014

granted monthly maintenance of `1,250/- each in favour

of respondent Nos.1 to 3. Being aggrieved by the said

order, the petitioner filed revision petition before the

Principal District Judge, Raichur, in Criminal Revision

Petition No.104/2014. The said revision petition came

to be dismissed by the Sessions Court by order dated

07.04.2015. Since the petitioner did not pay the

maintenance amount, the respondents filed a petition in

Criminal Miscellaneous No.2/2017 under Section 125(3)

of Cr.P.C., seeking recovery of arrears of maintenance of

`1,83,750/- from 06.11.2011. In the said petition, the

respondents filed an application under Section 421(a) of

Cr.P.C., seeking attachment of property. The learned

Senior Civil Judge and JMFC, Lingasugur, vide order

dated 23.08.2018 allowed the said application and

ordered for attachment of property. Consequent upon

the order passed by the trial Court, the Tahsildar by

order dated 18.11.2018 ordered for attachment of

crops. Hence, the petitioner is before this Court.

4. The learned counsel appearing for the

petitioner would submit that the petitioner filed G & WC

No.1/2014 seeking custody of respondent Nos.1 to 3.

The said petition also came to be dismissed vide order

dated 10.09.2018. Challenging the said order, the

petitioner preferred appeal in MFA No.202262/2018

before this Court. The said appeal came to be

dismissed by this Court vide judgment dated 06.11.2019

granting right of visit in favour of the petitioner.

5. The main contention of the learned counsel

for the petitioner is that Criminal Miscellaneous

No.2/2017 was filed beyond the period of limitation and

the same was not maintainable. The trial Court failed to

consider the proviso to Section 125(3) of Cr.P.C. The

said proviso is clear and in categorical terms puts an

embargo on the powers of the learned Magistrate to

issue warrant for recovering the amount due unless the

application is made to the Court within a period of one

year from the date on which it became due. Therefore,

issuance of warrant under Section 421 of Cr.P.C., is

arbitrary and against the proviso to Section 125(3) of

Cr.P.C. The trial Court has also ignored the settled

position of law and he ought not to have issued

attachment order.

6. The learned counsel for the petitioner further

submitted that respondent No.4 with mala fide intention

to harass the petitioner filed miscellaneous petition and

also petition under Section 125(3) of Cr.P.C., for

recovery of maintenance amount. He would also submit

that sister of the petitioner filed suit for partition against

the petitioner and his brothers seeking equal share in

the property sought to be attached. Therefore, the order

passed attaching the said property is bad in law and

requires interference at the hands of this Court.

7. Per contra, the learned counsel for the

respondents submits that the order passed in Criminal

Miscellaneous No.19/2011 has attained finality. The

petitioner was unsuccessful in the revision petition filed

challenging the order passed in Criminal Miscellaneous

No.19/2011 also. The petition in G & WC No.1/2014

filed by the petitioner seeking custody of respondent

Nos.1 to 3 herein was also dismissed by order dated

10.09.2018. The said order was challenged by the

petitioner by filing appeal before this Court. The appeal

also came to be dismissed and the said order has also

attained its finality. Inspite of it, he has not paid the

maintenance amount as ordered by the learned

Magistrate. Therefore, the trial Court allowed the

application filed by the respondents under Section

421(a) of Cr.P.C., and issued order of attachment.

Therefore, the petitioner should not find fault with the

order passed by the trial Court.

8. Having heard the learned counsel for the

petitioner and the learned counsel for the respondents,

it is not in dispute that the order passed by the learned

Magistrate in Criminal Miscellaneous No.19/2011 was

challenged by the petitioner by filing revision petition.

The said revision petition was also dismissed by

confirming the order passed in Criminal Miscellaneous

No.19/2011. It is also not disputed by the learned

counsel for the petitioner that G & WC No.1/2014 filed

by the petitioner seeking custody of the respondent

Nos.1 to 3 was dismissed and the appeal filed by the

petitioner challenging the said order also came to be

dismissed. The order passed by the learned Magistrate

in Criminal Miscellaneous No.19/2011 granting

maintenance in favour of respondent Nos.1 to 3 has

attained finality. Since the petitioner did not pay the

maintenance amount, the respondents filed Criminal

Miscellaneous No.2/2017 under Section 125(3) of

Cr.P.C., seeking recovery of arrears of maintenance of

`1,83,750/-. The main contention of the learned

counsel for the petitioner is that the said petition is

barred by limitation. The Criminal Revision Petition

No.104/2014 filed by the petitioner was dismissed on

07.04.2015 confirming the order passed by the learned

Magistrate in Criminal Miscellaneous No.19/2011. After

dismissal of the Criminal Revision Petition No.104/2014,

Criminal Miscellaneous No.2/2017 was filed seeking

recovery of arrears of maintenance amount of

`1,83,750/-. The petitioner has not disputed the fact of

order passed in Criminal Miscellaneous No.19/2011

having already been attained finality and the petitioner

also does not dispute the fact of he having not paid the

amount in terms of the order dated 17.06.2014. In the

said petition, the respondents filed application under

Section 421(a) of Cr.P.C., seeking an order of

attachment in respect of land in Sy.No.304 of Turvihal

village. The said application was allowed by the

impugned order dated 23.08.2018. Thereafter, the

Tahsildar vide order dated 18.11.2018 as per Annexure-

E appointed the receiver and directed to forfeit the crop

which is grown in the property bearing Sy.No.304 of

Turvihal village and to deposit the amount. The

petitioner did not appear before the learned Magistrate

and not raised any objection with regard to the

limitation aspect, but, he directly approached this Court.

9. Having taken note of the specific ground

taken by the petitioner that as per Section 125(3) of

Cr.P.C., petition seeking recovery of arrears of

maintenance ought to have been filed within a period of

one year from the date on which it became due and the

said issue has not been taken note of by the trial Court

and having considered the new ground urged before this

Court that the petitioner has not contested the matter

before the trial Court in Criminal Miscellaneous

No.2/2017, I find it appropriate to remand the matter to

the trial Court to consider the same. Taking note of the

non-appearance of the petitioner, it is appropriate to

impose costs on the petitioner.

10. In view of the observations made above, I

pass the following:

ORDER

The petition is allowed on costs of `20,000/-. The

impugned order dated 23.08.2018 passed by learned

Senior Civil Judge and JMFC, Lingasugur, in Criminal

Miscellaneous No.2/2017 is set aside. The order dated

18.11.2018 passed by the Tahsildar is also set aside.

The matter is remanded to the trial Court to reconsider

the matter in accordance with law.

The costs shall be deposited in the trial Court

before 12.11.2021. The petitioner is also permitted to

file statement of objections in Criminal Miscellaneous

No.2/2017 regarding the grounds urged before this

Court.

Both the parties are directed to appear before the

trial Court on 12.11.2021 without expecting any notice.

Payment of costs of `20,000/- is condition

precedent for the trial Court to consider the grievance of

the petitioner. The said costs is payable in favour of

respondent No.4 on behalf of respondent Nos.1 to 3.

The trial Court is directed to dispose of the Criminal

Miscellaneous No.2/2017 within three months from

12.11.2021.

The petitioner is also directed to assist the trial

Court in disposal of the matter within the time

stipulated.

Sd/-

JUDGE NB*