Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 5872 of 2018 Petitioner :- Vijay Kumar Arora Respondent :- Bhumika And Another Counsel for Petitioner :- Pulak Ganguly
Hon'ble Mahesh Chandra Tripathi,J.
The defendant-petitioner is before this Court assailing the order dated 24.7.2018 passed by Principal Judge, Family Court, Meerut passed in Execution Case No.16 of 2017 (Bhumika v. Vijay Kumar Arora) by which the petitioner was directed to deposit Rs.12.50 lacs in the name of plaintiff-respondents.
It appears that the petitioner had filed Divorce Petition No.720 of 1999 under Section 13 of Hindu Marriage Act (Vijay Kumar Arora v. Bhumika Arora) before the Family Court, Meerut, which was decreed in favour of the petitioner by judgment and decree dated 17.4.2007 and consequently the marriage between the parties came to an end. The first respondent being aggrieved by the judgment and decree dated 17.4.2007 preferred First Appeal No.171 of 2007 before the Division Bench of this Court. Finally with the consent of parties, the aforesaid appeal was partly allowed by judgment and order dated 16.9.2015 with following observations:-
"..........25. We are of the view that the learned trial court has rightly consider the consequences which do not require any interference from us.
26. At the time of hearing both the parties are present in the Court personally.
27. When this appeal was filed, following order was passed on 25.05.2007:
"This appeal has been preferred by the wife who is subjected to a divorce decree. She is not interested for divorce. On the other hand, the husband contended through the counsel, there is no possibility of compromise. We cannot encourage the divorce from the social point of view without giving opportunity of reconciliation. We have to make effort to keep the family unit.
Hence, we have asked for both the appearing counsel whether they are ready and willing to go to mediation center for reconciliation by fixing the period or not when they agreed.
Hence, the matter is referred to the mediation center for reconciliation fixing first appearance on 3rd of July 2007 before the concerned Mediation Center. The appeal will be placed for finalization three months hence. However, we have made it clear that the appeal will be heard on informal papers without filing any paper book formally.
Status quo as on date will be maintained.
Department is directed to send a copy of this order to the concerned Mediation Center immediately."
28. On 10.11.2010 following order was passed:
"Pursuant to the order dated 19.8.2010, the case is listed today.
Shri Amit Kumar Srivastava, learned counsel for the appellant (Smt. Bhumika Arora) and Shri Pulak Ganguli, learned counsel for the respondent (Vijay Kumar Arora), are present.
In compliance with the directions given in the said order dated 19.8.2010, Smt. Bhumika Arora (appellant) is personally present before the Court, and she is identified by her counsel, Shri Amit Kumar Srivastava.
Further, in compliance with the directions given in the said order dated 19.8.2010, Vijay Kumar Arora (respondent) is personally present before the Court, and he is identified by his counsel, Shri Pulak Ganguli.
Learned counsel for the parties pray that the case may be directed to be listed after three months so as to enable the parties to make their efforts for bringing about reconciliation/compromise /settlement between them.
In view of the above, the case is directed to be listed on 17.2.2011 before the appropriate Bench. It will not be treated as tied-up or part-heard with this Bench.
Both the parties will be personally present before the Court on the said date."
29. On 15.07.2015 following order was passed:
"1. Parties are present.
2. Respondent-husband seeks time to file an affidavit proposing amount of alimony etc. which may be paid to appellant-wife and daughter who is also residing with her.
3. List after three weeks on 10.08.2015 to enable respondent-husband to file aforesaid affidavit.
4. On the said date, both the parties shall appear before this Court."
30. On 26.08.2015 following order was passed:
"The appellant and the opposite party are present today. The opposite party has filed a supplementary affidavit as per the earlier order of the Court. The appellant made a statement to the Court that she is willing to a decree of divorce provided she is given a permanent alimony of Rs.20 lacs plus return of her jewelery and a two room house in a respectable locality in Meerut. Further, financial arrangement should be made by the opposite party for the daughter, who has been born out of the wedlock.
The husband opposite party was asked to give a reply to this suggestion made by the appellant. The husband, Vijay Kumar Arora, states that he is not in a position to accept this offer given by the appellant and has requested the Court to decide the appeal on merits.
List this matter on 16.9.2015 as the first case in the cause list for final disposal of the appeal before the appropriate Court on which date the parties will be present in person. It is made clear that the appeal would be decided on that date itself."
31. When we enquired from the respondent then he submitted that he is willing to shoulder the responsibilities of marriage of the issue out of the wedlock of the parties, but a permanent alimony of Rs. Twenty lacs cannot be paid by him, and the amount may be reduced, if possible. We also insisted that an affidavit to this effect can be filed, if desired by the respondent, but no such affidavit was filed, nor any inclination was subsequently shown. The respondent submitted that he has been paid a gratuity of ten lacs rupees, and has been paid GPF encashment amount and other amounts which were admissible after retirement. He also submitted that he is getting pension, therefore, keeping all the factual assertions and the financial capacity, we direct the respondent to pay a sum of Rs. 12.5 lacs(Rupees Twelve Lacs and Fifty Thousands) towards permanent alimony to the appellant and it will be his responsibility to bear the entire expenses of marriage of their issue.
32. The decree of divorce is hereby confirmed subject to the aforesaid modification.
33. The appeal is partly allowed in the manner as above."
Meanwhile, the first respondent had filed Execution Case No.17/16 seeking execution of the order dated 16.9.2015 passed in aforesaid first appeal for recovery of Rs.12.5 lacs on 29.11.2016 under Order 21 Rule 1 and 2 CPC. Admittedly in the said proceeding notices had been issued and the petitioner had also filed objection. Meanwhile, due to non-appearance of the petitioner, the Presiding Officer by order dated 24.7.2018 issued arrest warrant for recovery of the amount in question in compliance of the order dated 16.9.2015 passed in first appeal fixing 20.09.2018 for compliance report and for further hearing. In this backdrop, the petitioner claiming to be physically handicapped had moved an application for recall of the order dated 24.7.2018. On the said application the Presiding Officer stayed the operation of the order dated 24.7.2018 subject to condition of deposit of Rs.12.5 lacs in favour of plaintiff- respondent by 24.8.2018.
In this backdrop, the Court has proceeded to examine the record in question and find that the Division Bench of this Court has passed detailed order in the aforesaid first appeal. With the consent of parties, the Court has modified the decree of divorce passed by the family court. The decree of divorce was confirmed subject to certain modifications asking the petitioner to pay a sum of Rs.12.5 lacs towards permanent alimony to the appellant (first respondent). The Court has further proceeded to observe that it will the responsibility to the petitioner to bear entire expenses of marriage of their issue.
The Court is surprised that inspite of sufficient time of approximately three years the aforesaid amount in terms of the first appellate order has not been paid to the respondents. In such circumstances, the Court is not inclined to interfere in the matter. Nothing has been brought on record to suggest that at any point of time the judgment passed by the first appellate court has ever been assailed before the higher forum and as such the execution court has every right to enforce the order and decree in question.
Learned counsel for the petitioner could not point out any manifest error apparent on the face of record in the impugned order so as to justify interference by this Court in extra ordinary jurisdiction under Article 227 of the Constitution of India.
The Court below has recorded categorical findings of fact and unless these findings are shown perverse or contrary to record resulting in grave injustice to petitioner, in writ jurisdiction under Article 227, this Court exercising restricted and narrow jurisdiction would not be justified in interfering with the same.
In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 Hon'ble Supreme Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
The Constitution Bench of Apex Court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
Hon'ble Apex Court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 in which Hon'ble Apex Court observed that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. For this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
The said view has also been reiterated by the Apex Court in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576 and the Apex Court had again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
In view thereof, I find no justification warranting interference with the order impugned in this writ petition.
The writ petition sans merit and is accordingly dismissed.
Order Date :- 20.8.2018 SP/