Kamlesh Kumar Tiwari vs Kamini Tiwari

Sanjeev Sachdeva, J

Crl.M.A.491/207(delay in re-filing the petition for 37 days)

For the reasons stated in the application, the application is allowed. The delay in re-filing the petition is condoned.

The application stands disposed of accordingly.

CRL.REV.P.27/2017 & Crl.M.A.489/2017(stay)

The petitioner impugns order dated 31.08.2016, whereby two Appeals; one filed by the petitioner and the other filed by the respondent, were

disposed of. Both parties had filed an Appeal against the order dated 11.04.2016 of the Metropolitan Magistrate.

By an order dated 23.12.2014, interim maintenance was fixed at the rate of Rs.25,000/- per month for the respondent and Rs.15,000/-per month for

the child. The petitioner appealed against the said order. The Appellate Court, by order dated 11.03.2016, dismissed the Appeal of the petitioner.

Thereafter, the petitioner filed an application seeking modification of the interim maintenance contending that there was change in circumstances.

It is contended by the petitioner that after the order fixing maintenance was passed, the respondent had thrown the petitioner out of residence and

accordingly, petitioner had to take alternative accommodation.

The learned Trial Court, by order dated 11.07.2016, held that there was indeed change in circumstances for reasons beyond the control of the

petitioner (respondent therein) and accordingly, reduced the maintenance payable to the respondent from Rs.25,000/- to Rs.15,000/- per month.

Aggrieved by this order, both parties filed an Appeal. Even though the application of the petitioner was allowed, and maintenance was reduced, the

petitioner filed an Appeal. The respondent being aggrieved by the order of reduction of maintenance filed an Appeal.

The Appellate Court, by the impugned order, rejected the Appeal of the petitioner and allowed the Appeal of the respondent on the premise that the

order dated 23.12.2014 had been affirmed by the Appellate Court on 11.03.2016 and the said order had become final and there were no changed

circumstances. The Court was of the view that once the Appellate Court had already taken into consideration the alleged changed circumstances, in

the first round itself, the Trial Court could not have re-visited the order and reduced the maintenance amount.

The changed circumstance, referred to by the petitioner, is the plea that the petitioner was ousted on 24.01.2015 by respondent from residence.

Perusal of order dated 11.03.2016 of the Appellate Court shows that the contention of the petitioner that the petitioner was ousted from his

residence on 24.01.2015 was specifically raised before the Appellate Court and dealt with by the Appellate Court in the first round itself. The

Appellate Court, after considering the said plea, declined to interfere with the order of the Trial Court assessing maintenance at the rate of Rs.25,000/-

per month for the respondent and Rs.15,000/- per month for the child.

It is an admitted position that no further proceedings were undertaken after the Appellate Court’s order dated 11.03.2016 and thus, the order

of the Trial Court dated 23.12.2014 merged with the order of the Appellate Court dated 11.03.2016 and the said orders became final.

The plea of the petitioner that petitioner was ousted on 24.01.2015, having been dealt with by the Appellate Court and the earlier order of the trial

court, assessing maintenance, having merged with the order of the Appellate Court, it was not permissible for the Trial Court to have re-visited the

same without any changed circumstance being shown to the Trial Court.

By the impugned order, the Appellate Court has noticed that the order passed by the Trial Court had attained finality. The Trial Court has also

noticed that the order directing reduction of maintenance is also premised on the plea that the income of the respondent has increased because of the

implementation of the recommendations of the Seventh Pay Commission and, however, the Trial Court has erred in not noticing that even the income

of the petitioner had increased on account of the implementation of the recommendations of the Seventh Pay Commission.

Keeping in view the fact that the order of the Appellate Court confirming the maintenance, in the first round, had attained finality and there was no

changed circumstance affecting maintenance, it was not open to the Trial Court to have re-visited the said order and this is the reason why the

Appellate Court, by the impugned order, has set aside the order of the Trial Court.

I find no infirmity with the approach of the Appellate Court and the view taken by the Appellate Court in the impugned order.

In view of the above, I find no merit in the petition.

The Petition is accordingly dismissed.

Order Dasti under signatures of the Court Master.