Order 1

Order Details: Order
Pdf Text: 1 C. C. No. 328/ DV / 2018
ORDER BELOW APPLICATION AT EXH. 40
1. This application is filed on behalf of applicant u/Sec. 25 of
the Protection of Woman From Domestic Violence Act, 2005 r/w 151,
152, 153 of C.P. Code. In short it is contended that, applicant has filed
present case under the provisions of PWDV Act of 2005 and also filed
application seeking reliefs under Section 23 of the PWDV Act. Since the
time of filing the application the respondents lured her in to believing
that, they were desirous of settling the matter amicably. The
respondents offered the applicant an amount of Rs. 15 Crores
alongwith shop that the applicant uses to conduct her business.
However, since the same is below the standard of applicant, hence the
settlement was failed. Thereafter, since the month of March 2020, the
pandemic was declared and Court was not functioning in its normal
manner. The respondent No.1 given proposal for mediation before the
Family Court where the divorce proceedings are pending between the
parties and during the said process, respondent No.1 proposed amount
of Rs. 2,00,00,000/- and the shop to be given to applicant as a
settlement. However, the proposal was given solely to waste of time and
prolong the matter. Therefore, applicant could not pursue her interim
application seeking reliefs.
2. Thereafter, order came to be passed below Exh.4 on
10/02/2022 and now present application is filed under Section 25 of
PWDV Act r/w 151, 152, 153 of C.P. Code on the ground that in its
order dated 20/09/2021 passed below Exh.24 in Para. No. 7 page No. 6
of order dated 10/02/2022, it is mentioned that the application came to
be turned down. However, it is submitted that said noting is erroneous
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as Court was pleased to record that the application would be decided
along-with interim application and therefore, applicant prayed to pass
appropriate order pertaining to the reliefs sought in application at
Exh.24.
3. It is also submitted that this Court has not rejected relief
pertaining to injunction as prayed for and therefore, applicant seeks
clarification with respect to the same. In said order in Para. No. 14 Page
No. 13 it was held that, applicant can avail her remedy before the Civil
Court and it may be construed that this Court is encroaching the
jurisdiction of the Civil Court. However, proceeding under PWDV Act are
considered as quasi civil proceeding and therefore, it is imperative that,
this Court be pleased to specify whether the relief sought is granted to
avoid further multiplicity of litigation as well as changed hands with
respect to the title of matrimonial house.
4. Moreover as regards to the monthly maintenance and
expenses granting amount of Rs. 25,000/- and the order dated
10/02/2022, the applicant submitted that, she earns Rs. 2,04,000/- per
month which would not deficit amount of Rs. 4,61,600/- that is
required for her maintenance that enumerated in her affidavit of
income, assets and liabilities. Further, the applicant also learnt that,
respondent No.1 is residing at Flat No. 101, Capri Building, Green Field
Society, Juhu, Mumbai, since over six months and pays rent of
Rs. 1,00,000/- per month which can not be possibly affordable by
respondent No.1 the alleging to have income of Rs. 30,000/- per
month. There is also mention of property dispute between the parties
which was decided along-with interim application at Exh.4 and
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therefore, the applicant prayed to clarify/modify order dated
10/02/2022 under Section 25 of PWDV Act, 2005 r/w Sections 151,
152, 153 of Cr. P. Code and to pass proper order on Exh.24 as well as
clarify injunction order and to enhance maintenance amount.
5. Respondent No.1 has filed reply at Exh.43 wherein he
denied the contentions of application and further submitted that, the
application is filed without any merit and the provisions under Section
25 of the Domestic Violence Act is wrongly invoked as the power to
modify the order can be exercised only if there is any change in
circumstances after the impugned order is passed. However, the present
application is filed immediately after the impugned order is passed and
there is no change in circumstances. It is also contended by respondent
No.1 that, the applicant is seeking enhancement of maintenance amount
on the same facts which has already been considered while passing
impugned order, which can not be entertained in view of provisions
under Section 362 of Cr.P.C. imposing specific bar on altering and review
of any order after it has been signed, except to correct a clerical and
arithmetical error.
6. It is also contended by the respondent No. 1 that, the
applicant has made baseless allegations that, over last 6 months the
respondent No. 1 is residing at the flat in Juhu and paying rent of
Rs. 1,00,000/- per month. She has not produced any documentary
evidence in support and it can not be considered as change in
circumstances to enhance amount of maintenance. He also stated that,
applicant has stated in her application that, she is earning Rs. 10,000/-
per month and she used to run the house from the same, but only when
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respondent No.1 produced her IT returns, she revealed that, she is
earning Rs. 2,04,000/- per month. So also the pandemic situation had
adversely affected respondent No.1 and applicant has suppressed her
income and bank accounts. He lastly stated that, the reason for
initiating present proceeding under Domestic Violence Act was the
property dispute and nothing else. It is appearing from record that,
mother of respondent No.1 had sent notice for eviction to applicant on
21/06/2018 and 10/07/2018 and filed suit for eviction vide L.E. Suit
No.60/2018 against applicant and respondent No.1 on 11/07/2018 and
therefore, present proceeding is filed on 01/12/2018 to counter blast to
the suit for eviction. Hence, on these and other such grounds
respondent No.1 prayed for rejection of application at Exh.40.
7. Respondent Nos. 2 to 4 also challenged application by filing
their reply at Exh.44 wherein they have also denied the contentions of
application in view of their contentions in the reply at Exh.24, written
submission at Exh.39 etc. and also contended that, the applicant being
aggrieved by the order dated 10/02/2022 passed by this Court is
challenging the interpretation of order and this is not the correct forum
for the same. Moreover, all the issues between the parties and the reliefs
sought by applicant in Exh.24 have been adjudicated upon and
thereafter no grounds are made out for review in this application and
present application is filed to delay the proceeding. Lastly respondent
Nos. 2 to 4 prayed for dismissal of application.
8. Heard Ld. Advocates for both sides. Gone through the
record, it appears that, the applicant has prayed for interim application
under Section 23 of Domestic Violence Act at Exh.4 which was partly
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allowed by my Ld. Predecessor on 10/02/2022 with detailed and
speaking order and thereby granted monthly maintenance of
Rs. 25,000/- per month to the applicant from respondent No.1. In the
said order the directions were also given against the respondents not to
commit any account of Domestic Violence with the applicant in
future and not to dispossess the applicant from their house i.e. Bindiya
situated at Gandhi Gram Road, Ground Floor, Juhu. It is rightly pointed
out by respondent No. 1 that, the order came to be passed below Exh. 4
on 10/02/2022 and within short span of time / within few days present
application is moved by applicant at Exh.40 on 03/03/2022.
9. Now coming to the first objection of applicant that, while
passing order below Exh.24 in Para. No. 7 Page No.6, my Ld.
Predecessor mentioned that, the application filed by applicant at Exh.24
for reimbursement of Rs. 29,200/- of electricity bill and Rs. 1,190/- of
gas bill and injunction along-with respondents which came to be turned
down by order dated 20/09/2021 and the applicant in her prayer clause
Para. 9(a) requested to clarify/modify the said order and also prayed to
pass proper order on Exh.24. Now at this stage, I have also gone
through the application at Exh. 24 and order passed by my Ld.
Predecessor thereon on 20/09/2021 wherein as per the order the relief
of payment of electricity bill, gas bill and relief of injunction will be
considered at the time of adjudication of interim relief application.
10. Now again coming to the order passed by my Ld.
Predecessor dated 10/02/2022 below Exh.14, my Ld. Predecessor as
mentioned above and as contended by the applicant that, the
application at Exh.24 of the applicant came to be turned down by order
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dated 20/09/2021 and no relief has been granted in respect of
electricity bill and gas bill in the order below Exh.4. Admittedly, the
order was passed by my Ld. Predecessor and not by this Court. He has
considered the application at Exh.24 and Exh.4 at length and thereby
came to the conclusion. Even though no such ad-interim relief in respect
of payment of electricity bill and gas bill was granted by my Ld.
Predecessor, the applicant is at liberty for seeking the said relief at the
time of final adjudication of the matter on merits and therefore, there is
no necessity to clarify order passed below Exh.4 to that extent.
11. As far as relief of injunction is concerned, Ld. Advocate for
respondents vehemently argued and brought my attention towards Para.
No. 14 wherein my Ld. Predecessor has briefly considered the prayer of
injunction of applicant against the respondents and it is also an
admitted fact that the right of the applicant in shared house hold is
protected by the Hon’ble Small Cause Court in L.E. Suit No.60/2018
Therefore, there is no need for further clarification or modification of
Exh.4 in respect of granting relief of injunction.
12. Lastly as far as enhancement of maintenance is concerned,
it is also further well rightly argued by Ld. Advocate for respondent
No.1 that, applicant had not preferred any appeal against order dated
10/02/2022 and there is no provision to modify the order passed by this
Court. He also brought my attention towards the provision of Section 25
of the Domestic Violence Act in respect of duration and alteration of
order and he argued that, only for change in circumstances, the order
can be modified or altered. However, no case is made out by applicant
about change in circumstances within short span of time of passing
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order on 10/02/2022 and filing present application on 03/03/2022.
Further on bare perusal of order passed by my Ld. Predecessor, it
appears that, in Para. No.13 of page No. 12, it is mentioned that,
applicant has failed to furnish legal proof of exact income of respondent
No.1 and further keeping in view the competency of respondent No.1,
my Ld. Predecessor granted monthly maintenance of Rs. 25,000/- per
month to the applicant.
13. Therefore, I found no substance in the application filed by
applicant at Exh.40 praying for enhancement of maintenance amount.
As such I have come to the conclusion that, there is no necessity to
invoke powers under Section 151, 152, 153 of CPC which are inherent
powers of the Court and can be applied only for typographical,
arithmetical error or defect in the order. The application do not come
within the four-corners of ingredients under Section 25 of the Domestic
Violence Act and it is liable to be rejected. Hence, I proceed to pass
following order :
ORDER
1) Application at Exh. 40 is rejected
2) Copy of this order be given to both parties free of cost.
(R. M. Shaikh)
Metropolitan Magistrate,
Dt : 24/08/2023 10th Court, Andheri, Mumbai
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