Dismissed

Shri. C. R. Suresh v. Mrs. S. Vijayalakshmi

Karnataka HC11 Feb 2022CRL.A/1998/2016

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court dismissed an appeal against the rejection of an application for condonation of delay in filing a criminal revision petition regarding domestic violence maintenance. The court held the reasons for delay were insufficient and the revision was infructuous as the main matter was disposed of on merits.

What did the court decide?

The criminal appeal was dismissed; pending intra-court applications were disposed of.

Shri. C. R. Suresh Vs Mrs. S. Vijayalakshmi — Maintenance and Alimony | Karnataka HC (2022)

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CRL.A.No.1998/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF FEBRUARY 2022

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL APPEAL NO.1998/2016

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BETWEEN:

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SHRI C.R. SURESH S/O. C.N. RANGEGOWDA AGED ABOUT 58 YEARS RESIDING AT NO.45 I FLOOR, 5^TH CROSS HMT LAYOUT, MATHIKERE BANGALORE - 560 054 ...APPELLANT

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(BY SRI MATHEW P.M. ADVOCATE)

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AND:

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MRS. S. VIJAYALAKSHMI W/O. C.R.SURESH AGED ABOUT 48 YEARS RESIDING AT NO.45 I FLOOR, 5^TH CROSS HMT LAYOUT, MATHIKERE BANGALORE - 560 054 ...RESPONDENT

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(BY SMT. BUSHANI KUMAR, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) READ WITH SECTION 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE V MMTC ON 30.12.2014 IN CRL.MISC.NO.312/2011 AND THE FLW ALSO ORDER PASSED BY THE LXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH 63), BENGALURU DATED 28-10-2016 IN CRL.R.P. NO.510/2015 AND ETC.

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CRL.A.No.1998/2016

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THIS CRIMINAL APPEAL COMING ON FOR FINAL DISPOSAL THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard.

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Aggrieved by the rejection of his application for condonation of delay and consequently the revision petition, the petitioner in Crl.Revision Petition No.510/2015 on the file of the LXII Additional City Civil and Sessions Judge, CCH 63, Bengaluru, has preferred this appeal.

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The appellant and the respondent were married in 1990. Out of the said wedlock the couple have two adult children as on today.

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Respondent filed Criminal Misc.No.62/2009 before the I ACMM, Bangalore, under Section 12 of Protection of Women from Domestic Violence Act, 2005 (for short “DV Act”) alleging domestic violence and seeking monetary relief, compensation and right of residence.

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CRL.A.No.1998/2016

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Later, that matter was transferred to 5^th MMTC Court Bengaluru, renumbered as Criminal Misc. No.137/2011.

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In that case, the trial Court by order dated 4- 7-2009 awarded interim maintenance of Rs.25,000/- to the respondent. The appellant challenged that order before the Additional Sessions Judge (Fast Track CourtXIV), Bengaluru in Criminal Appeal No.939/2009.

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The appellate court disposed of Criminal Appeal No. 939/2009 on 6-1-2010 holding that the appellant can file application before the trial Court for alteration/modification of the said order.

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Accordingly, the appellant filed application under Section 25(2) of the D.V. Act, before the trial Court for modification of the order. The same came to be dismissed on 11-2-2011. That order has attained finality.

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Criminal Misc. No.312/2011 was registered

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before the trial Court for enforcement of the interim maintenance awarded. In that matter, the parties were in

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CRL.A.No.1998/2016

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dispute about the quantum of arrears of interim maintenance payable. Both the parties filed the memo of calculation.

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The Trial court on hearing both sides, by the order dated 30-12-2014 held that the appellant is liable to pay Rs.16,39,950/- as arrears of maintenance as on 1512-2014. Further, the trial Court issued FLW for recovery of the said amount.

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The appellant challenged the said order before 66^th Special in Criminal Revision Petition No.510/2015. There was a delay of 154 days in filing the revision petition, therefore, the appellant filed I.A. No.2 for condonation of delay. The Revisional Court on hearing the parties, by the impugned order, rejected the said application and consequently, dismissed the Criminal Revision Petition holding that the delay is not satisfactorily explained.

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In his affidavit filed in support of I.A. No.2 before the Revisional Court, the appellant contended that

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CRL.A.No.1998/2016

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his father was aged 90 years and suffering from age related diseases, he was busy in taking care of his father, therefore, he could not file the revision petition in time. The Revisional Court rejected the application on the ground that nothing was placed to substantiate the said contentions.

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Sri. Mathew P.M., learned counsel for appellant submits that the father of the appellant was staying in his native place and was taking Ayurvedic treatment, therefore, he could not produce any material.

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Smt. Bhushani Kumar, learned counsel for respondent submits that the appellant’s father was staying in Bangalore only and the grounds urged in the affidavit were false. She further submits that the Criminal Revision Petition No. 510/2011 was filed challenging the interim order, whereas, main matter itself was disposed of on 236-2020. Therefore, the proceedings in Criminal .Revision Petition No.510/2015 have become infructuous.

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CRL.A.No.1998/2016

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It is no-doubt true that the term “sufficient reason” mentioned in Section 5 of the Limitation Act has to be liberally construed. However, the party seeking indulgence for condonation of the delay has to satisfy the Court that he had sufficient reason. The entire explanation of the appellant to explain the delay was in para 4 of his affidavit which reads as follows:

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“4. That, I my father is aged about 90 years and suffering for old age diseases, being the duty bound son it was my duty to take care of him and I have no permanent stay to residence and been running from one address to another, due to my personal inconvenient I was not able to provide necessary information and documents to my counsel to file the appeal before this Hon’ble Court.”

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The explanation in the above paragraph is as

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bald as possible. First of all, in the said paragraph, it is not stated that his father stays in his native village. If so which is the native village is not stated. It is also not stated that his father was taking Ayurvedic treatment. If so what is the name of the said Doctor. Therefore, the trial

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CRL.A.No.1998/2016

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Court was fully justified in holding that the reasons assigned were very bald and were not acceptable.

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Secondly, Criminal Revision Petition No.510/2015 as rightly pointed out arose out of the interim order passed in Criminal Misc.No.137/2011. The copy of the final order passed in Criminal Misc.No.137/2011 on 23-6-2020 is submitted for the perusal of the Court. The said order shows that the trial Court disposed of the petition on merits.

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By that order, the trial Court has granted compensation of Rs.5,00,000/- to the respondent payable within three months in addition to the interim maintenance. During the course of the order, the trial Court has also observed that, apart from the arrears of maintenance, having regard to the finding on domestic violence awarding compensation of Rs.5,00,000/- would be just. That means to say that the interim maintenance awarded at the rate of Rs.25,000/- is maintained till the disposal of the petition.

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CRL.A.No.1998/2016

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At the cost of repetition, it has to be noted that the appellant has challenged the order of interim maintenance by filing the appeal and that was remanded with a direction that he can file application before the trial Court and seek modification of the same. The application filed by the appellant for modification also failed. From that point of view also, the interim maintenance order attained finality.

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Further the main matter in

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Crl.Misc.No.137/2011 was disposed of with the aforesaid observations on 23.06.2020. So far the appellant has not challenged that order. Thus that order has attained finality. The interim order passed if any is merged with the main order. From that point of view also, the revision petition has become infructuous.

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In the light of the aforesaid discussions, even if delay was condoned, the chances of the appellant succeeding in the revision petition is very bleak. The power

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CRL.A.No.1998/2016

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under Section 5 of the Limitation Act to condone the delay is discretionary power. Unless such order suffers patent illegality or perversity, the same cannot be interfered. This Court does not find patent illegality or perversity in the impugned order. Therefore the appeal is dismissed.

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In view of dismissal of the appeal, pending IAs stood disposed of.

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Sd/JUDGE

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Tsn/KSR

Shri. C. R. Suresh v. Mrs. S. Vijayalakshmi

Case brief

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Shri. C. R. Suresh v. Mrs. S. Vijayalakshmi

Case brief

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