Sri B M Srinivasa vs Smt. Chandrakala
2022 Latest Caselaw 4124 Kant

Citation : 2022 Latest Caselaw 4124 Kant
Judgement Date : 10 March, 2022

Karnataka High Court

Sri B M Srinivasa vs Smt. Chandrakala on 10 March, 2022

Bench: H.P.Sandesh

                                1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 10TH DAY OF MARCH, 2022

                              BEFORE

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

        CRIMINAL REVISION PETITION NO.109/2012

BETWEEN:

SRI B.M.SRINIVASA
S/O. SRI MAHIMAIAH
AGED ABOUT 42 YEARS
R/O. BYCHENAHALLI VILLAGE
HEBBUR HOBLI,
TUMAKURU TALUK & DISTRICT.                  ...PETITIONER

           (BY SRI SHARATH S. GOWDA, ADVOCATE)

AND:

1.     SMT. CHANDRAKALA
       W/O SRI SRINIVASA
       AGED ABOUT 29 YEARS

2.     MASTER BHARGHAV
       S/O SRI SRINIVASA
       AGED ABOUT 6 YEARS,

3.     MASTER HARSHAVARDHANA B.S.
       S/O SRI SRINIVASA
       AGED ABOUT 4 YEARS,

       RESPONDENT NOS.2 & 3 BEING MINORS
       ARE REPRESENTED BY THEIR MOTHER
       AND NATURAL GUARDIAN NO.1.

       ALL ARE R/O. NO.7/A,
       NEELGIRI THOPU,
                                 2



     HEGGANAHALLI MAIN ROAD,
     NEAR ST.MARIA SADANA PUBLIC SCHOOL,
     VIGNESHWARA NAGAR
     BENGALURU-560 091.               ...RESPONDENTS

          (BY SRI D.S.VIJAYENDRA REDDY, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE ORDER
DATED 20.04.2011 PASSED BY THE MMTC-V, BENGALURU, IN
CRL.MISC.NO.57/2010 AWARDING AN INTERIM AMAINTENANCE
OF Rs.6,000/- P.M. TO THE RESPONDENT AND ORDER DATED
03.11.2011 PASSED BY THE PRESIDING OFFICER, FTC-II,
BENGALURU IN CRL. APPEAL NO.395/2011, DISMISSING THE
APPEAL ON THE GROUND OF BARED BY TIME.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

This criminal revision petition is filed to set aside the order

dated 20.04.2011 passed by the Metropolitan Magistrate, Traffic

Court-V, Bengaluru in Crl.Misc.No.57/2010 and also to set aside

the order dated 03.11.2011 passed by the City Fast Track

(Sessions) Judge, Bengaluru City, FTC-II in Crl.Appeal

No.395/2011.

2. Heard the learned counsel for the petitioner and the

learned counsel for the respondents.

3. The factual matrix of the case is that the respondent

No.1 herein has filed I.A.No.I in Crl.Misc.No.57/2010 seeking

interim-maintenance of Rs.20,000/- per month and medical

expenses of Rs.25,000/- against the petitioner herein and the

Trial Court, directed the petitioner herein to pay the interim

maintenance of Rs.6,000/- per month to the respondents herein

from the date of petition. The said order has been challenged

before the City Fast Track Court (Sessions) Judge, Bengaluru

City, FTC-II and the said appeal was not dismissed on merits

but, only on I.A.No.I filed under Section 5 of the Limitation Act,

in coming to the conclusion that the domestic violence being a

special statute, the appellant cannot take the shelter of the

Limitation Act to condone the delay. In Protection of Women

from Domestic Violence Act, there is no scope to condone the

delay as the provisions of Section 29 are mandatory. Hence, the

revision petition is filed before this Court.

4. Learned counsel appearing for the petitioner would

vehemently contend that the Appellate Court has committed an

error in dismissing the appeal only on the ground of limitation.

The counsel, in support of his argument, relied upon the

judgment of this Court in SRI K.M. REVANASIDDESHWARA

VS. SMT. K.M. SHYLAJA reported in ILR 2012 KAR 1614,

wherein this Court held that the Lower Appellate Court

committed serious error in rejecting the application filed under

Section 5 of the Limitation Act for condonation of delay. It is

also further held that the application under Section 5 of the

Limitation Act is maintainable and applicable, in respect of the

order passed under the Protection of Women from Domestic

Violence Act, 2005.

5. Per contra, learned counsel for the respondents

would submit that due to passing of an interim order staying the

proceedings, even though the respondents have approached the

Court in the year 2010, till date, no decision is taken and the

further proceedings has been stayed and records are called for

by this Court and the same are lying before this Court and the

said fact has to be taken note of.

6. Having heard the learned counsel for the petitioner

and the learned counsel for the respondents and also on perusal

of the material on record, it is clear that interim-maintenance of

Rs.6,000/- per month was awarded and the same has been

challenged in the appeal and there was a delay of 20 days in

filing the appeal and the appeal was dismissed only considering

I.A.No.I and the Appellate Court comes to the conclusion that

Section 5 of the Limitation Act is not applicable and only the time

prescribed under Section 29 of the Protection of Women from

Domestic Violence Act is applicable. The very approach of the

Appellate Court is erroneous. The Appellate Court ought to have

taken note of the delay of 20 days in filing the appeal, instead,

dismissed the appeal on technicalities, without considering the

matter on merits. Hence, I am of the opinion that the Appellate

Court has committed an error in not entertaining the appeal by

condoning the delay of 20 days and the judgment of this Court

referred (supra) is aptly applicable to the case on hand.

7. However, this Court has to take note of the fact that

it is the matter of the year 2010 and interim-maintenance was

sought and an order of interim-maintenance of Rs.6,000/- per

month was passed. When such being the factual aspects of the

case, it is appropriate to set aside the order passed in

Crl.A.No.395/2011 and the matter has to be remanded to the

Appellate Court to dispose of the matter within a time bound

period considering the matter on merits.

8. In view of the discussions made above, I pass the

following:

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The impugned order dated 03.11.2011 passed in Crl.A.No.395/2011 is hereby set aside. The petitioner as well as the respondents are directed to appear before the Appellate Court on 21.03.2022 and not to seek any adjournment and assist the Appellate Court in disposal of the case within one month from 21.03.2022.

(iii) The Trial Court is directed to take up the matter on 28.04.2022 since, it is brought to the notice of this Court that the Trial Court has given the date on 28.04.2022.

(iv) The Trial Court is directed to dispose of the matter within six months from 28.04.2022, since it is the matter of the year 2010.

(v) Registry is directed to send the Appellate Court records as well as Trial Court records

forthwith without any delay to consider the appeal within the stipulated time.

(vi) The revision petitioner is also directed to pay 50% of the interim-maintenance from the date of the order within four weeks from today, subject to the result of Crl.A.No.395/2011.