Final Order 3

Order Details: Order Below EX 1
Pdf Text: C. C. No. 593 Misc 2022 Shaheen Vs Ashfaque and ors.
CNR No.MHMM18-011476-2022
ORDER BELOW EXH.1
(Along with all the interim applications pending for decision)
1. The brief facts leading to passing of this order are -
The applicant filed petition under Section 12 of Protection of Women
from Domestic Violence Act, 2005 and various interim reliefs were granted by
this court by its order dated 06.02.2019, against main respondent Mr. Ashfaque
Mansoori.
The said order was challenged by applicant before Sessions Court, by
filing appeal, bearing Criminal Appeal No.302 of 2019, disputing the quantum
of maintenance granted by this court. The respondent also challenged this order
by filing another appeal bearing, Criminal Appeal No.5 of 2023. The Sessions
Court vide its order dated 21.07.2023, passed following similar order in both
the matters.
1. Criminal Appeal No.302/2019 is hereby allowed and the order of the Ld.
Trial Court dated 06.02.2019 in CC.No.61/DV/2015 by the Ld.
Metropolitan Magistrate, 12th Court, Bandra, Mumbai, stands set aside
and matter is hereby remanded for considering the application for interim
maintenance afresh by the Ld. Trial Court.
2. The Ld. Trial Court shall post affording opportunity to either party of
filing an affidavit of assets and liabilities and such other relevant material
would adjudicate and decide the application for interim maintenance
within a period of two months from the date of receipt of this order.
3. Parties shall submit the affidavit of assets and liabilities alongwith such
relevant material by the next date before the Ld. Trial Court and either
party shall also submit written notes of argument post filing of affidavit of
assets and liabilities. No party shall seek unnecessary adjournment except
at the indulgence of the Ld. Trial Court.
4. Record and proceedings if received be remitted to the Ld. Trial Court
forthwith.
5. Ld. Trial Court be intimated accordingly.
6. Criminal Appeal No.302/2019 stands disposed off accordingly.
2. Thus, as per said order the order of this court dated 06.02.2019, granting
interim reliefs is set a side and matter is remanded for considering application
for interim reliefs afresh.
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C. C. No. 593 Misc 2022 Shaheen Vs Ashfaque and ors.
CNR No.MHMM18-011476-2022
3. The order is clear and there is no ambiguity. Despite that relying on
certain observations made in both the orders in reasoning clause in support of
final order applicant contended that the said order is still in force and the
recovery-cum-arrest warrant against the respondent can re-issued. Applicant
disputed the order of this court about the suspension of such warrant passed by
this court on 10.08.2023, on an application filed by respondent relying on the
judgment of Appellate Court. She further claimed that N.B.W. shall be re-
issued.
4. In view of clear and ambiguous order passed in both the appeals and as
the law is well settled that if the main orderis set aside no execution of it can be
taken. The observations made in the reasoning clause, were seems to be
misconceived by the applicant. Those are made in respect of the payments
made during recovery proceedings of the interim maintenance. Those are not in
anyway supporting the contention of the applicant that interim orders are in
force. Therefore, in view of above discussed facts and circumstances, legal
position and orders passed in both the appeals, following order -
ORDER
a. The present application is disposed off as interim relief is already set aside.
b. All the interim applications filed are also disposed off.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 01.12.2023 M.M., 12TH COURT, BANDRA, MUMBAI
After dictating of above order in open court in presence of both the
parties and in presence of Ld. Advocates for both the parties, it is informed by
advocate for the applicant Mrs. Naushid Yusuf, that she had filed some
Revision Application before High Court of Bombay.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 01.12.2023 M.M., 12TH COURT, BANDRA, MUMBAI
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