Dismissed

Manish Suryakant Trivedi v. Unnati Manish Trivedi and Ors.

Bombay HC18 Apr 2013WP/924/2013

Case brief

AI extract

What is this about?

In a writ petition challenging a maintenance order, the High Court upheld the maintainability of a Family Court review petition where a bulky document compilation was ignored. The Court affirmed the revised interim maintenance quantum based on evidence of the husband's business interests.

What did the court decide?

Writ petition dismissed; Family Court ordered to proceed with trial where husband must explain the documents.

Manish Suryakant Trivedi Vs Unnati Manish Trivedi and… — Maintenance and Alimony | Bombay HC (2013)

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(1) (9) WP 924/13 (2)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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Amk

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CIVIL WRIT PETITION NO. 924 OF 2013

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Manish Suryakant Trivedi .. Petitioner Vs. Unnati Manish Trivedi & Ors. .. Respondents

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Mr. Shoaib I. Memon for the Petitioner.

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Mr. Mayur Khandeparkar a/w. Mr. H. V. Kode for Respondent Nos. 1 & 2.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 18th APRIL, 2013.

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P.C.

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The petitioner-husband has challenged the impugned order of learned Judge, Family Court No.2, Mumbai dated 6^th July, 2012 reviewing the order of that Court passed earlier dated 25.08.2011.

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The respondent-wife applied for maintenance. The learned Judge, Family Court No.5, Mumbai passed an order of interim maintenance on 25.08.2011 granting Rs.7,000/- p.m. to the wife and Rs.3,000/- p.m. to the child. In this order the learned Judge considered only one of the documents filed amongst several documents by the wife. The documents which were filed by the wife were contained in 384 pages. They were filed on 14^th January, 2012 in the Court. Thereafter the maintenance application was adjourned from time to time and the above order came to be passed on 25^th August, 2011. The learned Judge did not consider a number of documents at all. The only document which was considered was on page 3 of the compilation of documents marked Exhibit-21 in evidence. Pages 1 to 5 are the printouts of the downloaded website minedubai.ae. It shows the alphabetical search of various companies in Dubai. As many as 6 companies of the husband in diamond trade were shown to Court. This

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(2) (9) WP 924/13 (2)

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showed the husband as a Manager and Director of those companies in Dubai. The learned Judge has appreciated that evidence. He considered that the respondent-husband was Manager and Director of certain companies but there was nothing on record to show that the respondent continued to be the Manager and Director on the date the order was passed and what was his income. Thus stated the learned Judge did not consider the other documents.

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The wife applied for review. The same learned Judge was transferred. The learned Judge presiding over that Court considered the Review Application. The said judge allowed the Review Application. The Judge considered various other documents in the same compilation and passed another order of maintenance which is impugned in this writ petition. The impugned order grants maintenance of Rs.1 lac to the wife and Rs.50,000/- to her daughter as an interim maintenance.

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The petitioner-husband has challenged the maintainability of the Review Petition as also the order passed on merits. With regard to the maintainability it is contended that in the Review Petition the Court actually “Sat in Appeal”. The Court considered the order which was sought to be reviewed, held that it was erroneous and proceeded to pass what it considered a correct order. Counsel on behalf of the petitioner-husband contended that that far exceeded the jurisdiction of the Court to review its own order. The order impugned in the Review Petition showed an error on merits but not an error apparent on the face of the record which would only merit a Review Petition.

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Counsel on behalf of the husband drew my attention to 3 judgments; (1) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma &

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(3) (9) WP 924/13 (2)

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Ors. (1979) 4 SCC 389, (2) Parsion Devi & Ors. Vs. Sumitri Devi & Ors. of Supreme Court dated 14^th October, 1997 and (3) Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh 1964 AIR 1372 . In each of them the distinction between an error on merits and an error on the face of record has been considered. An erroneous decision is held not reviewable but an error apparent on the face of the record is. As regards to the maintainability of the Review Petition under Order 47 of the CPC, the Counsel on behalf of respondent-wife drew my attention to 3 judgments; (1) K. L. Nandakumaran Nair Vs. K. I. Philip & Ors. (2001) 8 SCC 537, (2) Rajender Singh Vs. Lt. Governor, Andaman & Nicobar Islands & Ors. AIR 2006 SC 75 and (3) Sri Krishna Banwari Lal & Ors. Vs. Behari Lal Sri Krishna & Anr. AIR 1964 All 516 . In these judgments the parameters of when a Review Petition can be entertained has been set out. A reading of the 3 judgments together would show that when the Court has totally ignored the pleadings or has not dealt with a document which is brought on record and completely overlooked it and failed to consider it, it can review its own order. In the judgment in the case of Rajender Singh (supra) the Supreme Court has considered all these various aspects in para 15 of its order. In that case the Supreme Court considered that various materials which were placed on record were ignored and which if considered would have justified the claim of the appellant therein. That was the case where certain documents were not in possession of the parties which were shown at the time of the review and certain documents which were relied upon by the appellant were shown not to have been considered at all. The reasoning in para 15 would show that when a bulky compilation of 384 pages is placed before the Court and only page 3 thereof is considered, a Review Petition would be maintainable.

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It is argued that if these parameters are held good, there would

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(4) (9) WP 924/13 (2)

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be a number of Review Petitions filed when a single document is not considered. Such Review Petition would be dismissed by Court on merits. But that would not mean that would not be maintainable. If the Court would see that largely the documents relied upon by the parties were considered and further documents did not merit an observation of the Court, the Review Petition would be dismissed.

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In this case the Review Petition otherwise maintainable has been so held. Its challenge on the ground of maintainability cannot be sustained. Consequently the Writ Petition filed by the petitioner-husband would have to be considered on merits upon impugned order in the Review Petition being considered on merits.

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In the impugned order the learned Judge has accepted the error by the Court. The learned Judge has observed that Exhibit 21 running into 384 pages were not at all referred or considered while passing the order and that is the error apparent on the face of the record. In view of the aforesaid judgment, this observation is not incorrect.

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The learned Judge has considered in para 6 the downloaded information from the website minedubai.ae. He has considered how the husband has been connected with as many as 6 diamond companies as a Manager and Director. He has then considered that the husband was General Manager with one Rolling Stones Company. The husband's connection with that company has not been denied. He claims to be an employee of Rolling Stones Company. He claims earning an equivalent of Rs.15,000/- in Dubai. If that is so, he would belong to the lowest rung of labour in Dubai but the case of the husband is not that he is a labourer or anything equivalent to such rung.

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(5) (9) WP 924/13 (2)

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The wife has produced and the learned Judge has considered an email that she found in her own house where she resided with her father-in-law. The printout of the email unfortunately left by the father shows how the petitioner-husband wanted the father to fabricate evidence to show his income to be Rs.15,000/- along with another paper which would show a signature to demonstrate that it was an original document.

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11 The learned Judge has thereafter considered another document being an email printout of one Anand Desai regarding the renewal fees payable for the certain businesses. The email has been sent initially to [email protected] which has been replied by Anand Desai. The learned Judge has considered the registration of 5 offshore companies in Dubai for which USD 1750/- was required to be paid by the petitionerhusband. The learned Judge has observed about the financial strength of those companies, the registration of which would require that much amount.

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The learned Judge has further considered the financial statement of Rolling Stone FZE. It is the printed document, a draft copy of which has been produced by the respondent-wife. It is stated that this document is found by her in her house of which she has produced a copy. The learned Judge has seen the assets worth of the business of Rolling Stones Company in which the husband claims to be an employee.

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The learned Judge has also considered a photo copy of the cheque made out by one Sanjay S. Kothari as a Karta in favour of the father of the petitioner-husband for Rs.9 lac on 25.01.2005. The learned Judge has observed that the signatory of the cheque was shown to be the

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(6) (9) WP 924/13 (2)

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employer of one Pooja Enterprises where the husband claimed to have been an employee. The cheque was issued when the husband claimed to have joined that firm. It would have been inconceivable that the employer of the husband gave a cheque of Rs.9 lac to the father of the husband. The learned Judge has so observed in his order and considered the worth of the parties upon a cheque of Rs.9 lac which passed between them. The son of the petitioner-husband through his first wife, who is present in Court, has stated to Court upon the Court's query that this cheque was given by way of a loan at the time of the sale of a particular flat to the father of the husband which has since been repaid. Consequently the issue of the cheque is not denied. It would be for the husband to explain the cheque. Though the compilation of the documents was given since January, 2011, it was not explained when the impugned order was passed on 6^th July, 2012 also. It may be explained by the husband in the trial. The Court would surely consider the explanation, if any.

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The learned Judge has also considered certain photographs. The learned Judge has observed upon certain photographs. The photographs of the petitioner-husband were not denied. However it is claimed that the petitioner was not at the place where the photographs are taken. The photographs are taken at certain Grand Prix Game. It is also contended that free tickets to such games are offered. The case of the husband would have to be considered in the trial because no such case has been made out before the learned Judge.

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The learned Judge specifically commented upon a particular cap which is shown to be of the equivalent worth of Rs.2,000/-. The photograph of the petitioner-husband has not been denied. The observations of the learned Judge about status of the husband and his

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(7) (9) WP 924/13 (2)

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lifestyle is made upon inter alia such photographs. These would be considered at the trial for want of any explanation at the time of the impugned order.

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In a case where the husband does not come out clean with his income, more specially in cases where husbands who are in family businesses or on otherwise high positions seek to pass off their positions unbelievable and astounding claims that they are removed, dismissed or have otherwise been thrown out of whatever they earlier possessed or had, any evidence betraying such incredible claims would have to be considered by the Court to call their bluff. No Court can accept a physically and mentally fit man to be in the dumps he protrays to be. In such cases the Court may determine such an amount as it considers to be the husband's income given his ganged position from any related documentary or other evidence.

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Thus it can be seen that the learned Judge has correctly considered various documents which were not earlier considered. The learned Judge must set aside the initial order of interim maintenance and pass another order based upon the observations in the order. The learned Judge has granted interim maintenance of Rs. 1 lac to the wife and Rs.50,000/- to her daughter. Since none of these documents is shown to be either fabricated or incorrect or otherwise explained with regard to the status of the husband as a Manager or Director, the photographs of the husband, the various companies for which the husband had to pay registration charges etc, it is seen that the husband is a businessman carrying on business of diamonds in various companies all of which are at a single place in Dubai. There is nothing, therefore, to fault the impugned order as regards the quantum of interim maintenance.

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(8) (9) WP 924/13 (2)

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The trial has already begun. The sooner the husband explains the documents or shows the fabrication, if any, of the documents, the better for him. Until then the husband must obey interim order of maintenance passed upon considering the documents of the wife which were available with the husband 1 ½ years prior to they being considered by the Court.

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Consequently writ petition is seen to be without merits and is dismissed. The trial shall proceed.

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(ROSHAN DALVI, J.)

Manish Suryakant Trivedi v. Unnati Manish Trivedi and Ors.

Case brief

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Manish Suryakant Trivedi v. Unnati Manish Trivedi and Ors.

Case brief

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