Order 2

Order Details: Copy of Interim Maintenance Order
Pdf Text: C. C. No. 1200191 DV 2021 Sabina Vs Feroz & Ors.
CNR-MHMM18-005654-2021
FURTHER ORDER BELOW EXH.3
1. Perused record, heard Ld. Advocate Shri. Mathew Nedumpara, for
the applicant.
2. Perhaps this is one of the matter where trial courts coming across
incidences in which advocate proceeding in the matters as per their whims
ignoring the legal aspects and decisions of higher courts. Before
proceeding further, at the cost of repeatition it is necessary to mention
brief facts, as follows :
The applicant is a widow of Mr. Yusuf Lakadawala, a businessman,
who died in the month of September, 2021. After his demise disputes
occurred amongst applicant and other relations of Mr. Yusuf Lakadawala.
They allegedly lodged false report against her with intention to drove her
out of house. She approached High Court for quashing of the proceedings.
In the said proceeding she also prayed for certain reliefs provided under
provisions of Protection of Women from Domestic Violence Act, 2005,
for short D. V. Act. It is directed the applicant to approach this court,
therefore, applicant filed this petition for various reliefs. After various
initial stages before High Court, it is directed on 10th of November, 2021,
to this court that the prayer of interim reliefs shall be strictly considered
on merits by making following observations in Criminal Writ Petition
No.2454 of 2021.
Per Hon'ble Justice Shri S. J. Kathawalla -
“In view thereof, we request the Learned Magistrate to pass the order
in the matter filed by the Petitioner and heard by him on 26th October, 2021 on
or before 10th November, 2021, strictly on merits”.
3. Therefore, as narrated in the previous order the applicant
approached this court in pursuance of this order of High Court in
Criminal Writ Petition No.2454/21. In pursuance of mandatory direction
that this court shall decide the application of interim reliefs, strictly on
1
-- 1 of 6 --
C. C. No. 1200191 DV 2021 Sabina Vs Feroz & Ors.
CNR-MHMM18-005654-2021
merits, this court after hearing the applicant passed order on 10.11.2021.
By way of the said order the prayer of ex parte reliefs, was rejected. The
notice was issued to respondents, calling their say. Then the matter was
kept on 15.11.2021. Hamdast was allowed. But applicant not bothered to
take copies and steps to serve the notice on the respondents.
4. On 15.11.2021, notice was issued, r/o.23.11.2021. On 23.11.2021,
notice was served and some of the respondents appeared. They sought
time and matter was adjourned till next day i.e. 24.11.2021. On
24.11.2021, matter was again adjourned till 03.12.2021, as P.O. of this
court was on leave.
5. But, again on the said day i.e. on 24.11.2021, matter was taken
before In-charge court. Both the parties were present and applicant filed
application, Exh.6. The Ld. Presiding Officer of in-charge court pleased
to kept the matter before regular court and passed no order regarding
prayer for interim reliefs. Again on 27.11.2021, matter was taken on board
on the request of applicant and her Ld. Advocate prayed for urgent
hearing of the matter. Respondents were absent. The Ld. Presiding Officer
of in-charge court, considering the matters on board before its court
expressed inability to hear the applicant and kept the matter before regular
court rejecting the prayer for hearing. The said order is as follows :
“Heard. The applicant is again making similar applications. The
complainant had appeared before regular court and after taking all
circumstances into account, regular court passed order and given date.
There is no reason to pass any order as regular court found it necessary to
issue notice before passing any order, that too behind back of other side.
Order of regular court is clear. The complainant made similar
application earlier inspite of said order. Today also same application is made
again. This application is rejected in view of circumstances appearing from
record.
If applicant still has further grievances about date, she may apply
before regular court.
Sd/-
M. M., I/c. 12Th Court, Bandra, Mumbai”.
2
-- 2 of 6 --
C. C. No. 1200191 DV 2021 Sabina Vs Feroz & Ors.
CNR-MHMM18-005654-2021
6. Though the prayer was rejected, the Ld. Advocate for the applicant
approached again and again made prayer for urgent hearing in absence of
other side. The Ld. Presiding Officer of in-charge court, after hearing
submissions made certain observations about the conduct of the Ld.
Advocate for the applicant Mr. Mathew Nedumpara, by passing following
order :
“After rejecting the application, Adv. of the applicant again came in the
court and started making submission as it teaching the provisions of law. He
was informed that order is already passed on the application and thus, it is
unwarranted to make any submission. He prayed for certified copy to go to
higher court. He was told to make application which will be supplied as per
the rules. Then advocate of the applicant stated that he has been in practice
since long and this court has been rude. It was informed to him that he has
other remedies in law, if he has grievances against the order and making
such allegation in contrary to the decorum. He is also informed that his
conduct will be recorded. Hence, this note.
Sd/-
M. M., I/c. 12Th Court, Bandra, Mumbai”.
7. Then the matter came before this court on regular day i.e.
03.12.2021. One of the respondents filed her say along with documents.
The advocate for the said respondent is present, he is also representing
other respondents. Applicant as well as her advocate Shri. Mathew
Nedumpara, were present.
8. As it is directed that the application for interim reliefs needs to be
decided strictly on merit and this court is bound to follow those directions
scrupulously, the respondent is directed to provide the copy of her say to
the applicant. Then somewhat strange and unwanted incidences occurred.
9. The Ld. Advocate for the applicant Shri. Mathew Nedumpara,
refused to accept the copy. He made submissions to the effect that he is
not at all concerned with the say of respondent and wants ex parte hearing
and orders. His submissions are with unnecessary loud and without any
relevancy to the issue at hand, about his age, experience, his posts, legal
3
-- 3 of 6 --
C. C. No. 1200191 DV 2021 Sabina Vs Feroz & Ors.
CNR-MHMM18-005654-2021
history and duties of the court. This court noticed that he is not in a
position to listen. Despite that this court tried to make him understand that
other party already appeared, it is directed by the High Court that matter
should be strictly decided on merits. He paid no attention towards this
and proceed with his irrelevant and unnecessary arguments. Therefore, as
there remained no option, but to hear him he was allowed to make his
submissions at length for the grant of ex parte reliefs, against the order of
High Court.
10. During his submissions he passed various comments against order
of High Court, particularly relating to the referring of the matter for
mediation, claiming that such exercise was unwanted, without his consent
and wasted his time. Those submissions were unwarranted and
contemptuous in nature and I am of the opinion that those need not be
reproduced. The conduct of the Ld. Advocate was objectionable and
prima facie constituting contempt of High Court. He also made
unwarranted comments about the P.O. of this court, having no relevance.
During his arguments he repeatedly insisted on passing of interim orders
and that too ex parte without hearing other side ignoring the direction of
the High Court.
11. Thus, it is clear that applicant herself is not interested to comply
with the direction of the High Court and act according to law. It is
specifically mentioned in the order of this court dated 10.11.2021, as to
why the order on merits is necessary and those orders can not be passed
without hearing other side. Despite that the Ld. Advocate for the applicant
pressurized this court not to hear other side. During his argument, though
he tried to rely upon the say of the respondents. Thus, he himself does not
want to proceed with the matter on merits and it appears that he is not
interested in reliefs, rather interested in some other acts for the reasons
4
-- 4 of 6 --
C. C. No. 1200191 DV 2021 Sabina Vs Feroz & Ors.
CNR-MHMM18-005654-2021
better known to him. Thus, order on merits can not be passed for the fault
on the part of applicant herself.
12. In addition to it, the previous order dated 10.11.2021, is not
challenged by applicant. It is still intact. In view of this fact, without
setting aside said order, ex parte order as insisted by Ld. Advocate for the
applicant granting interim reliefs to her can not be passed.
13. But, as Ld. Advocate insisted and not in a position to listen or
understood the legal aspects, this court compelled to pass order on interim
reliefs. In view of observations made in order dated 10.11.2021,
mandatory directions issued by High Court to decide the application only
on merits and as the order dated 10.11.2021, is still in force and no change
of circumstances occurred by providing opportunity to other side there is
no option, but to reject the prayer of interim reliefs.
14. Before passing final order it is also necessary to mention that this
court is having due concern about the grievances of the applicant. P.O.
repeatedly tried to make understand to the Ld. Advocate of the applicant
that order can not be passed ex parte, in the present scenario but no
purpose served due to adamant and unwarranted behaviour of the Ld.
Advocate of the applicant. In this regard even query was made and
attention of the Ld. Advocate of the applicant also drawn towards the
mandatory compliance, to be done by both the parties in view of
directions issued by the Supreme Court in the case of Rajnesh Vs. Neha
(2021 (2) SCC 324) and at least applicant is also bound to file her affidavit
of Assets and Liabilities, for obtaining order claimed by her. The Ld.
Advocate proceeded with his behavior and irrelevant submissions and
mentioned that he was not party to the said proceeding. The Supreme
Court has no authority to legislate, Section 141 of Constitution of India,
does not permit to the Supreme Court to legislate, as it has got limited
5
-- 5 of 6 --
C. C. No. 1200191 DV 2021 Sabina Vs Feroz & Ors.
CNR-MHMM18-005654-2021
jurisdiction and he is not bound by that judgment. After hearing these
submissions the P.O. has remained no option, but to hear him and
unfortunately, for the reasons discussed above without hearing both the
parties on merits compelled to pass following order :
ORDER
a. Application is rejected.
b. As order on interim reliefs is rejected, there remained no urgency
and matter is kept on 22.01.2022, for filing say of respondents on main
application.
c. Copy of this order shall be given free of cost to both the parties.
MUMBAI (KOMALSING RAJPUT)
DATE – 06.12.2021 M.M., 12TH COURT, BANDRA, MUMBAI
6
-- 6 of 6 --