Sulaiman v. Rabiya

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 RPFC.No. 61 of 2008() --------------------CMP NO. 1934/07 IN MC.665/2004 of FAMILY COURT, MALAPPURAM .................... PETITIONER/PETITIONER/RESPONDENT ------------------------------------------------- SULAIMAN, S/O.MUHAMMED, MANU, MUTHUVATTIL HOUSE, P.O.KARIPPOL, VALANCHERI VIA. BY ADV. SRI.M.ASOKAN RESPONDENTS: RESPONDENT/PETITIONER ---------------------------------- RABIYA, D/O.SAIDALAVI, THANTHRAMPALLI HOUSE, P.O.PATHAYAKKALLU, VIA. KADAMPUZHA, TIRUR TALUK. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 26/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 61 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of February, 2008 ## **JUDGMENT** The revision petitioner herein has suffered an order directing him to pay maintenance to his two children, who are represented by the respondent herein. Significantly the children, the claimants, have not been arrayed as parties in this revision petition. 2. Paternity is not disputed. The children, born to the petitioner, had come to the Court through their mother claiming maintenance in the year 1999. As per order dt. 26.4.2001 in M.C. 522 of 1999 they were granted maintenance at the rate of Rs.500/- each p.m. The said order was an ex parte order, it is submitted. The ex parte order was not challenged. Long later, the claimants/children, when they were at the age of 9 years and 8 years, came to the court in 2004 claiming enhancement of maintenance under Section 127 Cr.P.C. In that petition also the petitioner remained ex parte. An order was passed on 11.2.2005 2 R.P.F.C.No. 61 of 2008 enhancing maintenance amount to Rs.1,000/- each to the children. Long later, an application was filed to set aside the ex parte order along with an application to condone the same. When those petitions came up, steps were not taken to serve notice on the guardian of the children, i.e. the wife of the petitioner. The petitioner was not present and he was not represented also. In those petitions also the children were not arrayed as respondents. 3. Be that as it may, the application to set aside the ex parte order as also the petition for condonation of the delay were dismissed as per separate orders dt. 26.3.2007, copies of which are produced as Annex. 2 and 3. The petitioner was not present. There was no representation on his behalf. The notice issued to the guardian of the children had been returned with the endorsement that there is no such person as per the report of by the police and the postman. The learned Judge of the Family Court, instead of dismissing the application, closed the proceedings with the observation that the petitioner shall be at liberty to file fresh C.M.P. with full and correct postal address of the guardian of the claimants/children. R.P.F.C.No. 61 of 2008 3 4. The petitioner did not challenge those orders. He did not take any further steps for a long period of time. At long last, on 27.7.2007 he filed C.M.P. 1934 of 2007 to set aside the ex parte order. Such a fresh petition was again filed without any application for condonation of delay. 5. The learned Judge of the Family Court, by Annex.4 order, proceeded to dismiss the application on the ground that such fresh application filed is not accompanied by any application for condonation of delay and the petition is hence barred by limitation. 6. When Annex.A order was passed, the petitioner did not choose to challenge the said order. Instead, the petitioner filed Annex.10 petition for review of the order passed as Annex.4. The learned Judge of the Family Court by the impugned order dismissed the said application on two grounds. First of all it was held that the court lacks jurisdiction to review its own order. Secondly it was held that on merits also the application is not maintainable. 7. The petitioner claims to be aggrieved by the impugned order. What is the grievance? On merits there appears to be a little scope for challenge as the maintenance case was lodged in 1999 and an amount R.P.F.C.No. 61 of 2008 **==> picture [7 x 9] intentionally omitted <==** of Rs.500/- each p.m. was awarded to the children, who must have been aged only about 4 years and 3 years then. In 2004 the claim was filed and the children were aged 9 years and 8 years. The amount of Rs.500/- awarded earlier was enhanced to Rs.1,000/- p.m. This is the enhancement that was granted. 8. About the initial application to set aside the ex parte order and the petition to condone the delay, when they came up for hearing on 26.3.2007, there was no representation for the petitioner. The petitioner was absent. He had not taken steps to issue notice to the respondent. Significantly it must be noted that the children were not shown as respondents and their mother alone was shown as respondent. Notices issued to her were returned with the endorsement that such person is not available. Petitioner has no explanation to offer as to why the petitioner was absent and why he did not challenge Annexs. 2 and 3 orders. 9. Be that as it may, his next grievance is about Annex.4 order. Annex.4 order was passed in the petition filed by him to get the ex parte order set aside. The ex parte order was admittedly passed on 11.2.2005 and there is no valid explanation whatsoever as to why the R.P.F.C.No. 61 of 2008 5 application filed on 27.7.2007 was not accompanied by any application to condone the delay in filing the same. The petitioner was bound to explain the delay. The ex parte order was passed in February, 2005 and the application to set aside the ex parte order was filed initially in 2006 and the renewed application, C.M.P. 1934 of 2007 was filed only on 27.7.2007. The petitioner's explanation that he thought that in view of Annexs.2 and 3 orders, no further application for condonation need at all be filed cannot be swallowed naively by any prudent mind. Less said about the plea, the better. 10. The petitioner raises a further grievance that the learned Judge of the Family Court had numbered the application to set aside the ex parte order without insisting on an application for condonation of delay. The petitioner puts the blame on the court for his not filing an application for condonation of delay. This contention also lacks merit and bonafides. 11. The learned Judge of the Family Court in passing the impugned order had taken the view that the court has no power to review its own orders. The Family Court follows the procedure in the Criminal Procedure Code and a power of review to alter decisions on R.P.F.C.No. 61 of 2008 6 merit must definitely be founded on some specific provision of the Statute. There is no such provision in the Cr.P.C. at all. The decision in **Kunhimohammed** v. **Nafeesa** (2003 (1) KLT 364) is relied on by the learned counsel vehemently. But that decision cannot lead to the conclusion that a decision taken on merits can be reviewed by a criminal court, inspite of the stipulations in Section 362 Cr.P.C. without any specific provision. The dictum in **Kunhimohammed** (supra) evidently refers to incidental powers which must be held to be available to make conferment of the original powers real and meaningful. The said decision is not authority for the proposition that Section 362 Cr.P.C. can be ignored and a criminal court dealing with an application under Section 125 Cr.P.C. can invent in itself a power to review an earlier order passed on merits. The said contention cannot also be accepted. 12. No other contentions are raised. I am in these circumstances satisfied that the impugned order does not warrant any interference. 13. It will not be inapposite in this context to remind myself about the nature, scope, contours, quality and sweep of revisional powers of superintendence and correction which this court has as a 7 R.P.F.C.No. 61 of 2008 court of revision. It is by now trite that any and every error committed by a subordinate court shall not ipso facto persuade this Court to invoke such revisional jurisdiction of superintendence and correction. The error must be gross. Such error must have resulted in the vice of failure/miscarriage of justice. Merely because an error has been committed, it is not incumbent on this court to invoke the powers of superintendence and correction. In any view of the matter, if one reads between the lines, it is clear that the petitioner has no plea to urge in substance and the petitioner is only playing for time to drag on the proceedings. 14. I am, in these circumstances, satisfied that this R.P.F.C. does not deserve admission and only deserves to be dismissed. I do so. - **(R. BASANT)** Judge tm