Ram Sarup vs Rameshwari and ors.

S.S. Grewal, J.

This petition is directed Against the order dated 15.9.1988/11.11.1988 passed by the Judicial Magistrate Ist. Class, Hissar, whereby application for correction of clerical error in order dated 15.9.1988 was dismissed.

In brief, facts relevant for the disposal of this case are, that the Judicial Magistrate Ist Class, Hissar, fixed interim maintenance at the of Rs. 50/ per month each payable to the minor children of the parties in proceedings under Section 125 of the Code of Criminal Procedure Later on, an application was moved before the Judicial Magistrate for correction of clerical mistake, inasmuch as according to the case put forth on behalf of the minor children, maintenance amount granted was Rs. 100/ p.m. each and not Rs. 50/ p.m. each. That application was dismissed by the Judicial Magistrate Ist Class, Hissar, vide his order dated 11.11 1998 mainly on the ground that the impugned order had already been challenged by the respondent in revision. The case was compromised before the Lok Adalat. Even though the Magistrate in his order specifically mentioned that be had fixed interim maintenance @ Rs. 50/ p. m. each, later on, in its comments the Magistrate admitted that he had awarded maintenance at the rate of Rs. 100/ p.m. in favour of the children of the parties. Revision against the said order was filed before the Sessions Judge, Hissar, who vide his order dated 7.2.1999 rectified the said mistake and enhanced the interim maintenance @ Rs. 100/7 p.m. payable to each of the minor children. Aggrieved against the said order, father of the minor children has filed the present petition.

Counsel for the parties were heard. It was submitted on behalf of Ram Sarup petitioner that he had earlier filed a revision, petition against the order of the Judicial Magistrate granting interim maintenance and that the application was dismissed as withdrawn. In those proceedings a compromise was got effected between the husband and the wife, before the Lok Adalat on 27.10.1988. His grievance is that in the earlier order the Magistrate had specifically granted interim maintenance @ Rs. 50/ m. each and in case the Magistrate had actually allowed interim maintenance @ Rs. 100/ p.m. each to the minor children, the Magistrate was expected to mention this fact specifically in its order. It was further submitted that the Sessions Judge could not legally award maintenance at this rate of Rs. 100/p.m. each without dealing with the law point raised by him in his revision petition.

It is true that the Magistrate in his subsequent orders dated 11.11.1988 admitted that he had actually awarded maintenance at the rate of Rs. 100/ p.m. each to the two minor children, instead of Rs. 50/ each as mentioned in his order dated 1591988 and acting on the said observations, learned Sessions Judge passed the impugned order dated 721989 without considering all the aspects of the case.

Criminal revisions normally cannot be dismissed as withdrawn. The learned Sessions Judge erred in law in dismissing the revision petition as withdrawn. The said order cannot be legally sustained. Since rehearing of the petition is necessary in the interest ofjustice, the impugned order dated 721989 passed by the learned Sessions Judge is also set aside and the learned Sessions Judge is directed to rehear both the revision petition filed by Ram Sarup petitioner, as well as the application for correction of the impugned order passed by the learned Magistrate on behalf of the minor children. The Sessions Judge would then decide whether the interim maintenance has to be granted to the two minor children, and if so, what would be the quantum of interim maintenance which may be awarded to the minors. The orders passed by the learned Sessions Judge dated 721989 as well as the earlier order dismissing the revision petition filed by Ram Sarup are set aside, and both the cases are remitted back to the Sessions Judge for decision afresh on merits. Parties through their counsel are directed to appear before Sessions Judge, Hissar, on 591989.

This petition stands disposed of accordingly.