1.0 Present Criminal Revision Application under Section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the applicantoriginal respondentson to quash and set aside the impugned order dated 27.4.2011 passed by the learned JMFC, Patan passed below Exh.11 in Criminal Miscellaneous Application No.332 of 2011, by which, learned Magistrate has rejected the said application submitted by the applicantson raising preliminary objection with respect to jurisdiction.
2.0 At the outset, it is required to be noted that applicant is the son residing at Mumbai and respondent no.1 original applicant is the mother who is residing at Patan Gujarat who is compelled to file the application for enhancement of maintenance under Section 127 of the Code of Criminal Procedure against her own son who is well placed at Mumbai.
2.1. It appears that respondent no.1mother submitted the application for maintenance under Section 125 of the Code of Criminal Procedure against the applicant hereinoriginal opponent son in the year 1991 being Criminal Miscellaneous Application No.91 of 1991 before the learned JMFC, Patan and the learned Magistrate was pleased to award maintenance of Rs. 500/ per month in favour of respondent no.1 mother. It appears that thereafter the respondent no.1 mother submitted application for enhancement of amount of maintenance in the year 2004 being Criminal Miscellaneous Application No.348 of 2004 and the learned JMFC, Patan passed an order under Section 127 of the Code of Criminal Procedure. It appears that thereafter respondent no.1 mother submitted another application being Criminal Miscellaneous Application No.173 of 2007 in the Court of learned JMFC for enhancement of amount of maintenance and it appears that applicant agreed to enhancement of maintenance amount of Rs.1000/ per month and therefore, the learned Magistrate, Patan increased the amount of maintenance of Rs.3000/ per month. It appears that thereafter in view of price rise, inflation, increased in the rates of essential commodities, respondent no.1 herein mother has submitted the application under Section 127 of the Code of Criminal Procedure in the Court of learned JMFC, Patan to enhance the amount of maintenance which has been numbered as Criminal Miscellaneous Application No.332 of 2011 and has requested to enhance the amount of maintenance to Rs.5000/ per month. That in the said application for the first time the applicant has raised objection that the learned JMFC, Patan has no jurisdiction by submitting that lastly in the year 1991 the mother was residing at Mumbai and the applicant original opponent is residing at Mumbai, original applicant is required to submit the application in the Mumbai Court. Therefore, application Exh.11 was submitted by raising preliminary objection of jurisdiction and it was requested to dismiss the said application.
2.2. That the said application was opposed by respondent no.1original applicant by submitting that it is an application under Section 127 of the Code of Criminal Procedure to enhance the amount of maintenance and earlier thrice order was passed by the learned JMFC, Patan under Section 125 of the Code of Criminal Procedure as well as under Section 127 of the Code of Criminal Procedure and at no point of time the applicantoriginal opponent has raised any objection with respect to jurisdiction and therefore, it is now not open for the opponent to raise objection with respect to jurisdiction and therefore, it was requested to dismiss the application at Exh.11.
2.3. That by impugned order, the learned JMFC, Patan has dismissed the said application Exh.11 dismissing the said application raising the preliminary objection with respect to jurisdiction.
2.4. Hence, being aggrieved and dissatisfied with the impugned order dismissing the application Exh.11 raising preliminary objection with respect to jurisdiction, the applicant hereinoriginal opponent has preferred present Criminal Miscellaneous Application.
3.0 Shri Parikh, learned advocate for the applicantoriginal opponent son has vehemently submitted that learned trial Court has materially erred in dismissing the application Exh.11 and not accepting the case on behalf of the applicant that the Court at Patan would not have any jurisdiction to entertain the application for maintenance. It is submitted that at the relevant time the mother of the applicant original applicant was residing at Mumbai and even the applicant herein original opponent was also residing Mumbai and therefore, the Court at Patan would not have any territorial jurisdiction to entertain the application for maintenance and only Court at Mumbai would have jurisdiction. By making above submissions, it is requested to admit/ allow present Criminal Revision Application.
4.0 Shri H.K. Patel, learned advocate for the respondent no.1 original applicant has opposed the present application by submitting that in the facts and circumstances of the case, more particularly, when earlier orders under Section 125 of the Code of Criminal Procedure and 127 of the Code of Criminal Procedure have been passed by the learned JMFC, Patan and at the relevant time the applicant did not raise any objections with respect to the jurisdiction, thereafter it is not open for the applicant to raise the objection with respect to the jurisdiction of the Court at Patan in an application under Section 127 of the Code of Criminal Procedure.
5. At the outset, it is required to be noted that as such the present Criminal Revision Application has been preferred against the interlocutory order dismissing the application at Exh.11 submitted by the applicant hereinoriginal opponent raising preliminary objection with respect to the jurisdiction. It is required to be noted that as such the present application before learned JMFC, Patan is to enhance the amount of maintenance under Section 127 of the Code of Criminal Procedure. It is not in dispute that as such the first order of maintenance under Section 125 of the Code of Criminal Procedure was passed by the learned JMFC, Patan passed in the year 1991 and thereafter also one another order came to be passed by the learned JMFC, Patan under Section 127 of the Code of Criminal Procedure. At no point of time, earlier either in an application under Section 125 of the Code of Criminal Procedure or under Section 127 of the Code of Criminal Procedure applicant herein raised any objection with respect to the jurisdiction and the earlier orders passed under Section 125 of the Code of Criminal Procedure and under Section 127 of the Code of Criminal Procedure have attained finality and as such applicant has accepted the same and has paid the maintenance to his mother respondent no.1 original applicant. That thereafter, considering price rise, inflation etc. when the mother has submitted the application for enhance the amount of maintenance under Section 127 of the Code of Criminal Procedure, for the first time the applicant has raised the objection with respect to jurisdiction by submitting that the Court at Patan had no territorial jurisdiction. Considering the aforesaid facts and circumstances of the case as such no illegality has been committed by the learned Magistrate in dismissing the application Exh.11. So far as amount of maintenance under Section 127 of the Code of Criminal Procedure is yet to be considered by the learned Magistrate on merits. It is very unfortunate that mother is required to approach the Court for her maintenance at the old age against her son who is residing at Mumbai and is well to do.
6.0. In view of the above and for the reasons stated above, there is no substance in the present Criminal Revision Application which deserves to be dismissed and is accordingly dismissed. Notice discharged.
“kaushik”
sd/ ( M. R. Shah, J. )