Telangana High Court
Sri.G.Muralidhar Rao vs Smt. G.Shalini on 19 April, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
CIVIL REVISION PETITION No.212 of 2024
O R D E R:
Heard Sri G.M.Mohiuddin, learned counsel representing Sri
V.V.Subramanyam, learned counsel appearing for the
petitioner/husband and Sri A.Suryanarayana, learned counsel
appearing for the respondent/wife.
2. This Civil Revision Petition filed under Article 227 of the
Constitution of India assails the order dated 22.11.2023, whereby
the Court below declined to register the application preferred by
the petitioner/husband under Order XXI Rule 33 (3) read with
Section 151 of Code of Civil Procedure (herein after referred to as
'C.P.C.').
3. In short, the facts necessary for adjudication of this matter
are that the petitioner/husband and respondent/wife were not in
good terms. This led to various litigations. In O.P.No.403 of 2001
on the file of Judge, Family Court, City Civil Court, Hyderabad, the
petitioner/husband was directed to pay a sum of Rs.20,000/- per
month towards maintenance of respondent/wife. The
petitioner/husband filed C.R.P.No.3065 of 2016 before the
erstwhile High Court for the States of Telangana and Andhra
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Pradesh and after hearing both the parties, the High Court reduced
the said maintenance amount from Rs.20,000/- to Rs.15,000/- per
month.
4. During the course of hearing, learned counsel for the parties
agreed that petitioner/husband in various installments paid the
said amount. On certain occasions, he could pay it in full whereas
in other occasions, it was in part. Learned counsel for the parties
also agreed that no doubt, there are arrears of allowance to be paid
by the petitioner/husband, if said is counted as Rs.15,000/- per
month.
5. The bone of contention of learned counsel for the
petitioner/husband is that the petitioner/husband filed application
under Order XXI Rule 33(3) C.P.C. for further reduction of the said
amount. The prayer is made because the petitioner/husband's
business came to an end and he himself is surviving on the basis
of financial aid received from his daughter. Thus, he is not in a
position to pay Rs.15,000/- per month also. The Court below
passed the impugned order, dated 22.11.2023 and opined that the
petitioner/husband is admittedly not complying with the order
passed in C.R.P.No.3065 of 2016.
6. Accordingly, the petition filed under Order XXI Rule 33(3)
C.P.C. was ordered to be registered subject to compliance of the
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order, dated 07.09.2016 passed in C.R.P.No.3065 of 2016. The
singular ground of attack to this condition is that Order XXI Rule
33(3) C.P.C. no where provides for any such impediment and the
Court below was not justified in reading something in the statute
which is not prescribed. Putting it differently, it was canvassed
that the Court below can decide the petition either way on merits
but compliance of the order in C.R.P.No.3065 of 2016 cannot be a
condition precedent for registration of the application under Order
XXI Rule 33 (3) C.P.C.
7. Sounding a contra note, learned counsel for the other side
submits that the petitioner/husband is not entitled to get any relief
because he has not complied with the order, dated 07.09.2016
passed in C.R.P.No.3065 of 2016. He placed reliance on the
concluding para of order of Madhya Pradesh High Court in
Smt.Neha Gautam v. Rajeev Gautam 1, wherein the High Court
directed to make payment as condition precedent. No other point
is pressed by learned counsel for the parties.
8. Order XXI Rule 33(3) C.P.C. reads as under:
"ORDER XXI:- Execution of Decrees and Orders
Payment under Decree
33. Discretion of Court in executing decrees for restitution of
conjugal rights.--
(1) ...
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(2)...
(3) The Court may from time to time vary or modify any order
made under sub-rule (2) for the periodical payment of money,
either by altering the times of payment or by increasing or
diminishing the amount, or may temporarily suspend the same
as to the whole or any part of the money so ordered to be paid,
and again review the same, either wholly or in part as it may
think just..."
9. As rightly pointed out by learned counsel for the
petitioner/husband, the provision is independent and is not
subject to compliance of any Court order etc. This is settled that if
a provision of law is clear and unambiguous, it must be given effect
to irrespective of its consequence. (see Nelson Motis v. Union of
India 2).
10. So far, order of Madhya Pradesh High Court in Smt.Neha
Gautam's case (1 Supra) is concerned, in the operative portion of
the order, the High Court directed that the arrears of pay of
periodical payments be made and it should be condition precedent
for considering the pending application or any other application
which may be filed by the respondent. This is trite that the
judgment of a Court is binding or has a persuasive value for the
principles decided by it and not what is logically flowing from it
(see Union of India v.Dhanwanti Devi 3; Director of
Settlements, A.P. v. M.R. Apparao 4; Secunderabad Club v.
(1992) 4 SCC 711
(1996) 6 SCC 44
(2002) 4 SCC 638
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CIT 5). As a principle of law, it has not been decided by the High
Court in Smt.Neha Gautam's case (2 Supra) that application
under Order XXI Rule 33 (3) C.P.C. is not tenable unless the
maintenance amount directed by the Court in previous round is
deposited.
11. In this view of the matter, the order impugned cannot be
countenanced to the extent it was made subject to compliance of
order, dated 07.09.2016 passed in C.R.P.No.3065 of 2016. The
order dated 07.09.2016 is quashed. As a result, the Principle
Family Court, City Civil Court, Hyderabad, is directed to decide the
pending application of the petitioner/husband under Order XXI
Rule 33 (3) C.P.C. on its own merits without putting the aforesaid
condition.
12. The Civil Revision Petition is disposed of without expressing
any opinion on merits. There shall be no order as to costs.
________________
SUJOY PAUL, J
Date : 19.04.2024
MYK/TMK
2023 SCC OnLine SC 1004
