IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9399 of 2011 Animesh Kumar Mishra Versus The State Of Bihar & Ors ----------- ORDER 04. 09.08.2011 (1) I have heard learned counsel, Mr. Dhirendra Kumar Gupta on behalf of the petitioner. (2) This application under Article 227 of the Constitution of India has been filed by the petitioner, Animesh Kumar Mishra, practicing Advocate of Patna High Court against the order dated 26.04.2011 and 27.05.2011 passed by Additional Principal Judge, Family Court, Patna in Matrimonial Case No.181 of 2005 whereby the learned Court below directed the petitioner to make payment of current as well as arrear amount of maintenance if any, to the respondents and further by terms of order dated 27.05.2011, directed that till the arrears of maintenance is paid, judgment will not be delivered. (3) The learned counsel for the petitioner submitted that the order passed by the learned Court below is without jurisdiction and contrary to the order passed by this Court on 22.05.2009 in Civil Revision No.520 of 2007. According to the learned counsel, earlier by terms of order dated 07.12.2006, the trial court directed the petitioner to pay Rs.5,000 per month by way of maintenance to the wife-respondent by 10th of every 2 month from the date of filing of the application under Section 24 of the Hindu Marriage Act i.e. dated 27.07.2006. Arrears amount of interim maintenance was to be paid in equal installments with current maintenance. The petitioner was also directed to pay Rs.8,000 lump sum as litigation cost. Against the said order, the petitioners filed Civil Revision No.520 of 2007 and by terms of order dated 22.09.2008, notices were issued and further order was passed to the effect that further proceeding of Matrimonial Case No.181 of 2005 pending in the Court of Principal Judge, Family Court, Patna shall remain stayed if the petitioner deposits arrears and current amount of maintenance at the rate of Rs.2,500 per month which must be paid within a period of 15 days. Ultimately on 22.05.2009, the said Revision application was dismissed and the Lower Court was directed to take up the hearing on day to day basis and concluded the same within six months but the learned Court below instead of disposing of the Matrimonial Suit, directed the petitioner to deposit the arrears of maintenance at the rate of Rs.5,000 and also to go on depositing the current maintenance at the same rate and till it is deposited, further proceeding has been stayed. A written argument has been filed by the petitioner elaborating his submissions on all points. According to the learned counsel by playing fraud upon the Court, the orders have been obtained and the illegal order passed by 3 the Court below has been confirmed by the High Court in Civil Revision No.520 of 2007. (4) From perusal of the order dated 26.04.2011, an application was filed by the petitioner before the Court below for recall of the order dated 07.12.2006 on the ground that the order dated 07.12.2006 is illegal, void, arbitrary and contrary to Section 12 of the Hindu Marriage Act. The learned Court below found that the Civil Revision No.520 of 2007 filed against the order dated 07.12.2006 has been dismissed on the basis of supplementary affidavit filed by the petitioner to the effect that he is paying monthly alimony at the rate of Rs.2,500 to the Opposite Party. The learned Court below also found that the said amount is not being paid by the petitioner since 23rd October, 2008. The petitioner no doubt deposited certain amount but still the order dated 07.12.2006 is in existence as the Civil Revision has been dismissed, therefore, refused to recall the said order. So far the disposal of case within six months is concerned, the learned Court below in the said order observed that he joined in the month of September, 2010 and prior to that, the Court was vacant. During this period, several witnesses have been examined and because of filing of the petition by the petitioner to examine Dr. Bhagwan Das on commission, the case could not be disposed of within the said period. Therefore, from the perusal of the said order, 4 it appears that the petitioner himself filed the application for examining the doctor on commission and because of that, the case is pending. The learned Court below also directed the petitioner to pay the arrear of maintenance and also the current maintenance to the Opposite Party. Therefore, so far this order is concerned, in my opinion, it cannot be said that the trial court exercised a jurisdiction in a manner not provided by any law or he acted beyond the bounds of its authority or that failure of justice or grave injustice has occasioned thereby or that the order is arbitrary or illegal. (5) So far the order dated 27.05.2011 is concerned, the petitioner himself submitted before the Court below that against the above order dated 26.04.2011, writ application has been filed. Accordingly, the learned Court below directed the petitioner to produce evidence and further directed to pay the arrears of maintenance prior to any order passed by the High Court. Till the arrears of maintenance paid, judgment shall not be delivered. So far this order is concerned, the learned counsel for the petitioner submitted that the petitioner is a junior Advocate and has got no sufficient income to pay Rs.5,000 per month. In the Civil Revision No.520 of 2007, the High Court directed the petitioner to deposit Rs.2,500 per month and accordingly, he has deposited the same. Now, the trial court is directing the petitioner to deposit 5 arrears of maintenance as directed by order dated 07.12.2006 contrary to the order passed by this Court. (6) From perusal of the order passed by this Court in Civil Revision No.520 of 2007, it appears that the Civil Revision has been dismissed and, therefore, the order dated 07.12.2006 passed by the Court below has been upheld. The petitioner, therefore, cannot be allowed to interpret the order of this Court in other way. If there is any mistake apparent on the face of the record, the petitioner should have applied for review of the order in Civil Revision or to recall as the case may be. But in this application under Article 227 of the Constitution of India, this Court has no jurisdiction to either sit in appeal or revise an order passed by this Court in Civil Revision No.520 of 2007. The learned counsel for the petitioner relied upon various decisions on the ground of fraud and that the finding must be there that the respondent is legally wedded wife then only order under Section 24 of the Hindu Marriage Act can be passed. So far the decisions cited by the learned counsel for the petitioner i.e. (i) (1994) 1 S.C.C. 1 is concerned, it appears that in that case, partition suit was filed. Disclosing deed of release executed by the plaintiff relinquishing his right in the property and preliminary decree was obtained. Subsequently it was challenged on the ground of fraud. Therefore, the said decision is not applicable in the present 6 case. Here, the order passed by the Court below has been upheld by the High Court in Civil Revision No.520 of 2007. (ii) So far A.I.R. 1998 Patna 145(Sadhna Devi Vs. Bijendra Kumar) is concerned, in that case, the husband filed application for restitution of conjugal right which was decreed but even then the wife did not return to matrimonial home on the ground that her husband is jobless and is student. The High Court found that in reconciliation, the husband was ready to keep her but the wife refused to reside with her husband on the ground that he is not doing any service. Therefore, the prayer was refused to grant maintenance under Section 24 of the Hindu Marriage Act. In the present case, it is not the fact. (iii) So far 1988 Supreme Court 1531 is concerned, it was held by the Hon’ble Supreme Court that Supreme Court cannot direct transferring corruption case triable by Special Judge to High Court Judge and the direction given by the High Court in A.I.R.1984 Supreme Court 684 was recalled. On the basis of this decision, the learned counsel submitted that the order passed in Civil Revision by this Court may be recalled. So far this submission is concerned, I find no force because the petitioner should have filed recall application or application for correction or any other appropriate application in the said Civil Revision application. This Court being a coordinate Bench has no jurisdiction to either recall or modify or alter the order 7 passed by another coordinate Bench in exercise of supervisory jurisdiction against order of the trial court. (7) From the impugned order, it appears that the delay is caused because of the petitioner himself and also that the petitioner is not complying the order passed u/S 24 of the Hindu Marriage Act by the trial court as well as by this Court. In other words, he is flouting the orders of the Court. It is well settled principles of law that supervisory jurisdiction is exercised to keep the inferior Courts within the bounds of their authority and it should not be exercised in favour of a person who is flouting the orders of the Court. It is well settled that a marriage de facto carries the right to alimony pendent elite. The Court would not allow its discretion to be fettered by the nature of the allegation made by the parties and would not examine merits of the case. (8) In view of my above discussion, in my opinion, this is not a fit case where supervisory jurisdiction can be exercised under Article 227 of the Constitution of India. Accordingly, I find no merit in this application and thus, it is dismissed. Saurabh ( Mungeshwar Sahoo, J.)