V. Jagan Naik vs V. Lizy Beth
2023 Latest Caselaw 3059 Tel

HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

          CRIMINIAL PETITION No.10077 of 2023

ORDER:

This Criminal Petition is filed under Section 482 of the

Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the

petitioner/accused to quash the docket order dated

14.06.2023 passed in Crl.M.P.No.21 of 2023 in M.C.No.114 of

2021, on the file of the learned Family Court Judge, Ranga

Reddy District at L.B.Nagar.

2. Heard learned counsel for the petitioner/accused and

Sri S.Ganesh, learned Assistant Public Prosecutor for

respondent-State. Perused the record.

3. The brief facts of the case are that the petitioner and

respondent No.1 are legally wedded wife and husband and got

married in the year 1991 and were blessed with two sons

namely Manoj Kumar and Prabhu Kutty Naik. Their sons are

earning and residing with respondent No.1/wife. It is stated

that petitioner took care of the family and he purchased an

independent house in Saroornagar for the welfare of

respondent No.1 and children. While so, some differences

GAC,J Crl.P.No.10077_2023

cropped up between the petitioner and respondent No.1, due

to which, respondent No.1 necked out the petitioner from the

said house in the year 2020 and since then, the petitioner is

living in a rented accommodation. It is further stated that the

petitioner tried to enter into the house to reside along

respondent No.1 and their sons, but he was not permitted.

Therefore, the petitioner was constrained to file a Writ

Petition vide W.P.No.13717 of 2023, seeking police protection

and the said Writ Petition is pending before this Court.

4. It is further stated that in the year 2021, respondent

No.1 filed Maintenance Case vide M.C.No.114 of 2021and

obtained ex-parte order. Thereafter, on 28.11.2022, the

petitioner filed a Petition to set aside the said ex-parte order,

but the trial Court failed to consider the same and dismissed

the petition. Being aggrieved by the same, the petitioner filed

Crl.R.C.No.61 of 2023 before this Court and this Court on

25.01.2023, has disposed of the said Criminal Revision Case,

directing the trial Court to entertain the Petition which was

filed within the time limit and to pass orders afresh without

getting influenced by orders of this Court within a period of

six months from the date of receipt of a copy of the order. It is

GAC,J Crl.P.No.10077_2023

the further contention of the learned counsel that the trial

Court has allowed Crl.M.P.No.108 of 2023 in M.C.No.114 of

2021 filed by the petitioner to set aside the ex-parte evidence

dated 01.08.2022 passed in M.C.No.114 of 2021 by imposing

costs of Rs.10,000/- vide order dated 14.06.2023. The order

of the trial Court has been complied with by the petitioner by

paying the said costs. Thereafter, respondent No.1 has filed a

Petition to receive additional documents under Order VII Rule

14(3) CPC and the same was numbered as Crl.M.P.No.21 of

2023. Opposing the same, respondent No.1 filed a detailed

counter in the said matter on 24.05.2023. However, the trial

Court has passed the following Docket Order, dated

14.07.2023:

"Both parties present. Heard and perused the record. As the ex- parte in the MC was Set Aside, the respondent herein cannot be directed to pay the entire arrears as claimed in the MC, however in the interest of petitioner and considering the salary of respondent and as enquiry would take some time for disposal of M.C. the respondent is directed to pay Rs.20,000/- p.m. to the petitioner commencing from June, 2023 (as MC was restored in June, 2023) till disposal of M.C."

5. Being aggrieved by the said order, petitioner filed this

Criminal Petition to quash the Docket Order dated

14.06.2023.

GAC,J Crl.P.No.10077_2023

6. It is the specific contention of the learned counsel for

the petitioner that in a Petition filed to receive documents, the

present order has been filed granting interim maintenance to

respondent No.1 and learned counsel for the petitioner relied

upon the judgment of the Hon'ble Apex Court in Mrs.Akella

Lalitha Vs. Sri Konda Hanumantha Rao and Another 1,

wherein the lordship at Para Nos.16 and 17 has held that

"16. In the case of Messrs. Trojan and Company Limited Vs. Rm.N.N.Nagappa Chettiar 2, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under:

It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."

17. In the case of Bharat Amratlal Kothari and Another Vs. Dosukhan Samadkhan Sindi and Others 3 held that:

Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner".

7. On perusal of the entire record, it is evident that the

Miscellaneous Petition has been filed under Order VII Rule

14(3) CPC r/w Section 151 CPC for receiving additional

Civil Appeal Nos.6325-6326 of 2015

AIR 1953 SC 235

AIR 2010 SC 475

GAC,J Crl.P.No.10077_2023

documents and the trial Court has numbered the same. It is

not known as to how the Criminal petition filed under

provisions of CPC was numbered by the trail Court.

Furthermore, no application was filed by the petitioner before

the Court below seeking interim maintenance. Despite the

same, the Court below suo-moto has granted interim

maintenance to respondent No.1, that too, in a Petition which

was filed for receiving of documents, which itself clearly

discloses that grave error and illegality has been committed

by the Court below.

8. A perusal of the order dated 25.01.2023, passed in

Crl.R.C.No.61 of 2023 discloses that a specific direction was

given to the trial Court to entertain the petition which was

filed within the time limit and to pass orders afresh without

getting influenced by the orders within a period of six months

from the date of receipt of a copy of the order. Furthermore,

inspite of the orders of this Court dated 25.01.2023 in

Criminal Revision Case No.61 of 2023, the trial Court has

passed the impugned docket order. But, on perusal of the

impugned docket order, it is clear that no opportunity was

given to the petitioner herein prior to passing the interim

GAC,J Crl.P.No.10077_2023

maintenance. It appears that the trial Court in its impugned

docket order has specifically mentioned that in the interest of

the petitioner and considering the salary of the respondent

and as enquiry in Maintenance Case would take some time

for disposal of Maintenance Case, directed the respondent to

pay Rs.20,000/- per month, it clearly appears on the face of

record that the order passed by the trial Court is not on

merits. However, without giving any opportunity to the

petitioner herein and without looking into the assets and

liabilities statements of the parties, the trial Court has passed

the impugned docket order which itself is irregular. The trial

Court shall pass the interim orders only after considering the

affidavits of the parties as to their assets and liabilities.

9. In view of the above, this Court deems it appropriate to

quash the docket order dated 14.06.2023 in Crl.M.P.No.21 of

2023.

10. Accordingly, the Criminal Petition is allowed and the

docket order dated 14.06.2023, passed in Crl.M.P.No.21 of

2023 in M.C.No.114 of 2021 is set aside. The petitioner shall

file a fresh petition with relevant provision before the Court

GAC,J Crl.P.No.10077_2023

below and the same be considered by the Court below in

accordance with law.

Miscellaneous Petitions, pending if any, shall stand

closed.

__________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 11.10.2023

Note: Issue CC by 13.10.2023 b/o vsl

GAC,J Crl.P.No.10077_2023

HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

CRIMINIAL PETITION No.10077 of 2023

Date: 11.10.2023 vsl