Pandithevar alias Gurusamy vs Guruvammal and 3 Others

N. Arumugam, J.—This revision was sought to be admitted on the ground that the impugned order passed by the learned Judicial Magistrate No. I, Rama-nathapuram in M.C. No. 12/92 dated 19.12.1994 is bereft of any legality and propriety, as he failed to consider the admitted documentary legal evidence projecting the total waiving of the right of maintenance by the Respondents.

Mrs. Hema Sampath, learned Counsel appearing for and on behalf of the Petitioner, to substantiate the above plea placed reliance upon the document viz., Panchayat Muchalika executed on 17.12.1987 among the parties herein, attested by the supposed Panchayatdars and that the said document has been marked an Ex. B.1 before the trial court. It contains six clauses in all, evidencing a panchayat held amongst the parties herein to give a full quietus for their litigations inter se. Reliance was also placed by the learned Counsel upon the oral evidence of the first Respondent, who is these wife of the Petitioner. Having so referred, it was contended that the combined effect of the said document and the oral evidence clearly demonstrates the total waiving of the right of maintenance by the first Respondent for herself and on behalf of others and that the factum has not at all been taken into consideration by the learned Judicial Magistrate, while passing the impugned order, which causes every every prejudice to the revision Petitioner. In short to say, the learned Counsel contended that though the above evidence amounts to a fact, having direct nexus with the old dispute involved in the instant case has not at all been taken into consideration by taking judicial notice of by the court below.

Controverting the said position, Mr. Balasubramanian, learned Counsel for the Respondents countered the said arguments by saying that even assuming that there was a panchayat since happened as early as on 17.12.1987, it was not at all brought to the notice of the Court for the obvious reason that it was not intended to be acted upon, nor acted upon, as evident from the remand order passed by this Court after a lapse of five years from the date of the said document and further the said aspect even if taken judicial notice of, does not go to show the fact that there was any waiving of the maintenance claimed at any point of time by either of the Respondents and that further a fact which has not been brought before the Court as the earliest point of time cannot at all be permitted to be canvassed for the very reasoning of long silence and also for another reason that the impugned order passed upon considering adduced legal evidence by the learned Judicial Magistrate pursuant to the order of remand can be well justified and cannot at all be assailed in this revision.

In the context of the abovesaid rival pleas, after the notice of motion of the above revision projected by the Bar for the respective parties, I have perused the said contentions with reference to the impugned order and the entire case records. Ex. B.1, though alleged to bet marked by the learned Judicial Magistrate during the enquiry taken, pursuant to the remand order passed by this Court in the earlier revision, on 16.4.1992, does not shew any semblance of waiving the right of maintenance by either of the Respondents in any manner at any point of time. of course, there was a panchayat in which it is seen that the parties to the litigation had consented to carry on certain obligations and one amongst them, that is, each of the parties have agreed to withdraw their respective cases from the Court below. Significant at this stage to be noted is that the revision preferred by the Petitioner herein challenging the order of maintenance passed originally by the learned Judicial Magistrate was pending before this Court on the date of the said panchayat muchalika and the said revision was disposed of after a long time. It is thus, noticed that pursuant to Clause 6 of the said panchayat muchalika, the revision Petitioner himself had not withdrawn the revision from the file of this Court which was disposed of on 16.4.1992. On the other hand, he invited the High Court to pass a judicial order on that day. This was followed by the Court by K.M. Natarajan, J. (as he then was), who passed the orders remanding the matter for the limited purpose of ascertaining the eligibility of Respondents 2 and 3 alone since at the time of filing maintenance petition they were minors and consequently the learned Judicial Magistrate has complied with the legal exercise and passed the impugned order by stating that Respondents 2 and 3 were not eligible to claim maintenance as they had attained majority, however, confirmed the quantum of maintenance payable by the revision Petitioner to Respondents 1 and 4. It was during this stage, the panchayat muchalika was projected by and on behalf of the revision Petitioner. The learned Judicial Magistrate is thus seen fully justified in his legal exercise, in the purpose, for which the matter was remanded to him.

In responding to the plea of the learned Counsel for the revision Petitioner that the versions of the panchayatdars have not been taken judicial notice of by the learned Judicial Magistrate, while passing the impugned order, I am constrained to say that I am totally unable to countenance her claim for the following reasons:

(i) A casual perusal, even made upon each terms of the said document Ex. B.1, does not prostrate the waiving of any maintenance right by either of the Respondents herein and that none of the clauses contained therein seems to have been implemented and acted upon.

(ii) It still remains unexplained as to why the said facts of total quietus given by the said panchayatdars had not been brought to the notice of the learned Judge of this Court, while the remand order was passed in the revision then pending and disposed of on 16.4.1992 and the reason is obvious and needs no further explanation.

(iii) Even if several terms contained in the said document are assumed to be true, there is no semblance of evidence to show that they have been acted upon.

(iv) The repeated legal exercise adopted as de novo was only pursuant to the order of remand passed in the revision petition filed by

(v) Appraisal of the case records including the adduced legal evidence, in no way, demonstrates the total quietus as raised by the parties was relied upon.

It is thus seen after having considered the whole gamut of the case and case records in the context of the rival contentions, I am totally at every difficulty to identify any illegal exercise or impropriety in the order passed by the learned Judicial Magistrate. However, since the document signed by the parties in the name of a panchayat muchalika has since been projected glamouring a total quietus among themselves, it is always open for the revision Petitioner to seek the appropriate remedy in the civil courts, if so advised and for that reason this revision cannot be sustained and allowed to be canvassed.

In the result, endorsing my views with the submissions of the learned Counsel appearing for the Respondents, I am constrained to dismiss the revision at this admission stage with the above direction. Accordingly, this revision is dismissed. Consequent to the dismissal of this revision, Crl.M.P. No. 1574 of 1995 is also dismissed.