1 wp7261-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPLICATION JURISDICTION Writ Petition No.7261 of 2009 in Civil Application No. 1845 of 2010. in Writ Petition No. 7261 of 2009 Mithun Kishore Patadia .. Petitioner v/s. Sheetal Mithin Patadia & Another ..Respondents Mr. Devang R. Sanghvi for the petitioner . Mr.Rajiv Patil i/b. Omkar Warange for the respondent No.1 Mr.Suresh Bhosale, AGP for the respondent No.2 CORAM : R.Y.GANOO, J. DATED : 15th March, 2011 P.C. : 1. The respondent herein Mrs. Sheetal had filed an Application No.C-155 of 2007 in the Family Court at Bombay praying for maintenance for herself and her child. The said application was filed against the petitioner Mithun, as according to the respondent, Mithun was her husband. 2 wp7261-09.sxw 2. The learned Judge of the Family Court, Bombay by a speaking Order granted maintenance to Mrs. Sheetal by order dated 29.6.2009. He ordered Mithun to pay to Mrs. Sheetal Rs.40,000/- per month. It was also ordered that Mithun to pay to Mrs. Sheetal Rs.20,000/- per month for the minor child from the date of application dated 4.10.2007 till disposal of the main petition. 3. Mithin was aggrieved by this order and that is why he filed the aforesaid Writ Petition No.7261 of 2009. At the hearing of the said writ petition, an order came to be passed against Mithun on 6.11.2009 directing Mithun to pay the sum of Rs.5 lakhs to Mrs. Sheetal during the pendency of the writ petition. The said order provided as to how the money should be paid. After this order dated 6.11.2009, the petitioner was granted time to pay off the amount, from time to time and the intervening orders are dated 15.2.2010, 11.3.2010, 30.3.2010 and 25.6.2010. A reading of these Orders would clearly go to show that Mithun had sought time from time to time to pay off the sum of Rs.5 lakhs. It appears that Mithun thought of applying for recalling of the order dated 6.11.2009 by which he 3 wp7261-09.sxw was directed to pay the sum of Rs.5 lakhs. Consequently, he filed the aforesaid Civil Application No.1845 of 2010 and prayed for recalling of order dated 6.11.2009. It is required to be noted that being aggrieved by order dated 6.11.2009, as aforesaid, Mithun had filed Special Leave Petition (Civil)-No.2740 of 2010 in the Supreme Court. The Supreme Court, by its order dated 5.2.2010 permitted Mithun to re-agitate his grievance about order dated 6.11.2009 and that is how the Special Review Petition was dismissed. It is in these circumstances, this Civil Application which was pending from May 2010 and it appeared before the court today for final hearing. 4. It is required to be mentioned, that Mithun was aggrieved by Order dated 29.6.2009 and according to him the said Order deserved reconsideration at the hands of the learned Judge of the Family Court and that is why he filed what is referred to by the learned Counsel for Mithun, Review Application No.299 of 2010. He informed the Court that the said Review Application was filed in November 2010, that is much after the institution of the Civil Application No.1845 of 2010. It is also required to be noted that this Review Application has been filed after 25.6.2010 namely the relevant date where Mithun was 4 wp7261-09.sxw given a chance again to pay off the sum of Rs.5 lakhs. 5. Learned Counsel appearing on behalf of Mithun at the hearing of the Civil Application submitted that his client had instructed him to withdraw the Writ Petition No.7261 of 2009 on account of filing of Review Application No.299 of 2010. At the same time, he submitted that this Court should hear him in Civil Application No.1845 of 2010, pass an Order in the said Civil Application and then permit Mithun to withdraw the writ petition. In view of this peculiar request, I have considered the submission of learned Counsel Mr. Sanghvi on behalf of Mithun and I have also heard learned Counsel Mr.Patil appearing on behalf of Mrs.Sheetal. 6. Learned Counsel Mr. Sanghvi took me through the impugned order dated 29.6.2009 and wanted to suggest that the maintenance amount arrived at by the learned Judge of the Family Court is patently erroneous because the learned Judge has failed to take into consideration the exact income of Mithun and if that exercise would have been done in the proper perspective, the learned Judge would not have passed an order directing Mithun to pay the sum of Rs. 5 wp7261-09.sxw 40,000/- per month to Mrs. Sheetal and Rs.20,000/- to the child. According to him, this aspect was also not considered by the learned Judge, in this Court who passed order dated 6.11.2009 and that is how order dated 6.11.2009 needs to be recalled. He therefore submitted that appropriate orders be passed on the Civil Application and order regarding withdrawal of the writ petition be passed with permission to Mithun to prosecute the review application. 7. Learned Counsel Mr. Patil appearing on behalf of Mrs. Sheetal pointed out that after 6.11.2009 Mithun was granted sufficient time right upto 25.6.2010 and all along Mithun represented to this Court that he would like to make the payment and he sought time. He pointed out that till today from 6.11.2009 Mithun has not deposited the sum of Rs.5 lakhs. Learned Counsel Mr. Patil submitted that the desire of Mithun to withdraw the said Writ Petition and proceed with Review Application No.299 of 2010 before the learned Judge of the Family Court is an attempt to avoid payment of Rs.5 lakhs as was ordered by Order dated 6.11.2009. According to him Mithun has no place to seek recalling of order dated 6.11.2009 and that is how the order should not be recalled. 6 wp7261-09.sxw 8. I have heard the rival submissions. The petitioner challenged the order dated 29.6.2009 by way of Writ Petition No.7261 of 2009. It is noticed that the Review Application No.299 of 2010 was filed while this Writ Petition No.7261 of 2009 was pending. This act on the part of Mithun, namely to file Review Petition seeking review of Order dated 29.6.2009, while the Writ Petition challenging the order dated 29.6.2009 is pending is itself an attempt to avoid this Court in deciding Writ Petition No.7261 of 2009. In the normal course, I would have been justified in issuing suo moto contempt notice under the Contempt of Court Act, 1971 against Mithun for instituting Review Application No.299 of 2010 without seeking permission of this Court or without withdrawing this Writ Petition No.7261 of 2009. I do not wish to do so as Mithun wants to withdraw this petition. 9. It is noted that this Court passed an order directing Mithun to pay the sum of Rs.5 lakhs on 6.11.2009 on the ground that as of that day total amount of arrears were in the vicinity of Rs.18 lakhs and the learned Judge felt that wife Mrs. Sheetal should get a part of it. This 7 wp7261-09.sxw figure of Rs.5 lakhs must have been fixed by the learned Judge by giving some allowance to the actual order dated 29.6.2009. It would have been possible for the Court to direct Mithun to deposit entire amount before entertaining the writ petition. The Court did exercise his discretion, and permitted Mithun to prosecute the writ petition by paying part of the arrears. Mithun challenged the said order in the Supreme Court. The Supreme Court did not interfere with the said order and gave one chance to Mithun to move this court for the purpose of placing the submission before this Court. Mithun has not paid the sum of Rs.5 lakhs till today. This conduct of his clearly goes to show that he wants to avoid payment of Rs.5 lakhs though opportunity was given to him from time to time. 10.Now that Mithun has sought review of order dated 29.6.2009 surely it will be open for him to press his grounds for review and call upon the learned Judge of the Family Court to reconsider the entire matter and pass an order. Having chosen to apply for review, Mithun would get an opportunity to advance his submissions before the learned Judge of the Family Court, but by filing the Review Application cannot avoid the liability to pay the maintenance as per the impugned 8 wp7261-09.sxw order dated 29.6.2009 till that application is decided. As of today learned Judge of the family court has not stayed the order dated 29.6.2009. This will mean that said order still runs against Mithun. 11.With the aforesaid discussion I hold that the present Civil Application is an attempt on the part of Mithun to avoid payment of Rs.5 lakhs. . In a peculiar situation like this when Mithun has secured sufficient time to clear off the arrears, in the interest of justice it is necessary that the order dated 6.11.2009 cannot be revoked and duty lies upon Mithun to pay off Rs.5 lakhs. Some time ofcourse will have to be given by way of last opportunity. 12.Merely because Mithun withdraws this writ petition, that does not mean that he cannot be put to terms so far as hearing of the Review Application No.299 of 2010. In my view, it would be proper to allow Mithun to press his Review Application by directing that before the learned Judge of the Family Court entertains his Review Application Mithun will have to produce proof of having paid to Mrs. Sheetal the sum of Rs.5 lakhs. If this order is not passed, by seeking review of the order dated 29.6.2009 Mithun would continue to dodge the 9 wp7261-09.sxw payment of monthly maintenance to Mrs. Sheetal and her son who have been fighting for getting maintenance for last one year 6 months. 13.For the reasons mentioned aforesaid, the Civil Application is required to be dismissed. Mithun can be permitted to withdraw the writ petition with liberty to prosecute the Review Application No.299 of 2010. An order will have to be passed directing the learned Judge of the Family Court to entertain the review application only after the sum of Rs.5 lakhs is either paid by Mr. Mithun to Mrs. Sheetal directly or deposited it in the Court with liberty to the respondent to withdraw the said amount. It is also required to be clarified that this Court has not passed any order staying the operation of order dated 29.6.2009. 14.With the aforesaid discussion following order is passed in the Writ Petition No.7261 of 2009 as well as in the Civil Application No.1845 of 2010 in Writ Petition No.7261 of 2009. 10 wp7261-09.sxw ORDER i) As applied and at the request of the learned Counsel for the petitioner, Writ Petition No.7261 of 2009 is allowed to be withdrawn. The petitioner to pay to respondent sum of Rs.5000/- by way of cost of this petition. Cost condition precedent for hearing of Review Application No.299 of 2010 presently pending on the file of Family Court, Bombay.. iii) Civil Application No.1845 of 2010 is dismissed, since costs are awarded in Writ Petition, there shall be no order as to costs in the Civil Application. iv) The petitioner Mr. Mithun is directed to pay to Mrs. Sheetal, respondent, a sum of Rs.5 lakhs on or before 8.4.2011. He has option of depositing the said sum in the Family Court at Bombay. Mrs. Sheetal, respondent, is permitted to withdraw the said amount without any security or guarantee and this amount shall be received by her subject to final accounts. v) It is hereby ordered that the learned Judge of the Family Court 11 wp7261-09.sxw shall not entertain the Review Application No.299 of 2010 till such time the sum of Rs.5 lakhs is paid by petitioner Mithun. vi) It is also clarified that this court has not passed any order thereby staying the operation of the order dated 29.6.2009 passed in Maintenance Proceeding No.C-155 of 2007. vii) After the aforesaid order is passed, learned Counsel appearing for the petitioner Mithun prayed for stay of the operation of the order. Viii) The request is rejected as the petitioner Mithun is in default of payment of Sum of Rs.5 lakhs. [R.Y.GANOO, J.]