JUDGMENT V.B. Gupta, J.
1. The appellant has filed the present petition under Article 227 of the Constitution of India challenging the impugned order dated 1st August, 2007 passed by the Ld. Metropolitan Magistrate, New Delhi.
2. The respondent herein had filed an application under Section 23 of The Protection of Woman from Domestic Violence Act, 2005 before the Magistrate praying for grant of interim relief seeking therein her entry into the shared house hold at 7, Sunder Nagar, New Delhi and also prayed for interim maintenance of Rs. 45,000/- per month.
3. Vide the impugned order, the Ld. Magistrate directed the present petitioners to allow the respondent to enter into the aforesaid shared house hold at Delhi and stay over there under the prosecution of Protection Officer. Petitioners were also directed to pay interim maintenance of Rs. 8,000/- per month to the respondent. However, it was made clear that this relief passed in the favor of the respondent shall not create any special equities in her favor for passing any further order in the case and nothing in this order shall have any effect upon the merits of the case.
4. Being dissatisfied with the order passed by the Magistrate, the appellants challenged this order by way of present petition. Along with this petition an application under Section 482 Cr.P.C. has also been filed seeking stay of the operation of the impugned order and for giving a direction to the Protection Officer to remove the respondent and her family members from the house.
5. On the stay application, an ex-parte order was passed by this Court on 10th August, 2007, staying the operation of the impugned order dated 1st August, 2007.
6. After passing of ex-parte order, the respondent on 13th August, 2007, filed an application under Section 482 Cr.P.C. for directions/vacations of stay of the order of Ld. Magistrate dated 1st August, 2007 praying that petitioners be directed to maintain a status quo till the next date of hearing and not to dispossess the applicant.
7. I have heard the learned Counsel for the parties on the application for vacation of ex-parte stay. Petitioners counsel has also placed his rebuttal submissions in writing on record.
8. For the purpose of disposal of the present application Under Section 482 Cr.P.C. for directions/vacation of ex-parte stay order passed by the Magistrate on 1st August, 2007, it is not necessary for this Court, at this stage, to express any opinion on the merits of the respective contentions.
9. At the outset, it may be pointed out that the impugned order has been passed by the Ld. Magistrate under The Protection of Women from Domestic Violence Act, 2005. As per this Act the Magistrate has got ample power to modify, alter or revoke any order made under it and further there is specific provision for filing of appeal to the Court of Session against the order of Magistrate under the Act. The relevant provisions in this regard are Section 25 and Section 29 of the Act, which read as under:
25. Duration and alteration of orders:
(1) A protection order made under Section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.
29. Appeal- There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
10. So, according to Section 25 of the Act, any aggrieved person may make an application before the Magistrate and the Magistrate after being satisfied that there is change in the circumstances requiring alteration, modification and revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.
11. Further, Section 29 of the Act provides for appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent.
12. When specific remedy by way of appeal or by way of alteration, modification or revocation of any order, has been provided under the Act, prima-facie, the present petition under Article 227 of the Constitution of India, under these circumstances is not maintainable before this Court.
13. It has been laid down in various judicial decisions by this Court as well as by the Apex Court that where the specific remedy is open to the party under specific Act, the High Court will not interfere under Section 482 of Cr.P.C. In case of N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. 1952 SCR 218, the Apex Court has laid down that:
where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed off.
14. Here, in the case in hand, the Act under which the Magistrate has passed the impugned order, specifically provide the remedy by way of appeal or by way of modification, alteration etc.
15. So, under these circumstances there are sufficient and reasonable grounds for vacation of the interim ex-parte order passed by this Court on 10th August, 2007 and moreover as per prayer made in application under Section 482 Cr.P.C. by the petitioner, it has sought for giving directions to the Protection Officer to remove the respondent and the family members from the house, which goes on to show that the respondent is already in possession of the house that is why such direction has been sought for removing her from the house.
16. Accordingly, the present application for vacation of ex-parte stay granted by this Court on 10th August, 07 is allowed and ex-parte stay granted is hereby vacated and the parties are directed to maintain status quo till the next date of hearing and not to dispossess the respondent who is already in the possession.
17. List the matter on 22nd November, 2007, the date already fixed.