Nisar Ahmad Nengroo vs Khalida and Others

Bashir Ahmad Kirmani, Judge

This petition impugns an order dated 14.03.2005 purporting to have been passed by Chief Judicial Magistrate, Shopian in proceedings u/s 488

Cr. P. C. captioned as ""Mst Khalida and others v. Nisar Ahmad Nengroo"" wherein the learned Magistrate while allowing respondents

maintenance petition has directed payment of Rs. 1000/- to first petitioner and Rs. 500/- each to petitioners 2 to 7 on account of monthly

maintenance with effect from the date of institution of the petition i.e. 14.02.2004. Grounds pleaded are that the impugned order of maintenance is

bad in fact and law for the reason of having been passed without appreciating the evidence led before the learned Magistrate.

In their objections respondents have inter alia pleaded that petitioner has projected a tailored case in the revision petition against the impugned

order which in facts and circumstances of the case is well founded particularly because petitioner has deserted respondents to shift from his

ancestral place of living to Srinagar and contracted a second marriage totally giving up his liability to bring up the respondents. During course of

their submissions the counsel for rival sides have re-iterated contents of their written pleadings.

Vide interim order dated 23.12.2005 petitioner was directed to deposit 2/3rd of the amount due for payment in terms of the impugned order on

account whereof as per note of Registry petitioner appears to have paid in cash and kind an amount of around Rs. 65,000/- while as his total

liability as calculated is Rs. 96,000/- and thus apparently the interim direction appears to have been carried out.

I have heard learned counsel and considered the matter. Curiously enough the petitioner has chosen to institute this petition in this Court instead

of concerned Sessions court which ordinarily would be the (sic) proper revisional court in the first instance without, however, giving any cogent

reason for that. This circumstance necessitates the reference to an observation of this Court in its order dated 07.03.2006 passed in Criminal

Revision Petition No. 118/2005 whereunder while considering this aspect the following observation was made: -

Before concluding, however, it would be appropriate to observe that the present revision petition which arises out of an order of Judicial

Magistrate, Anantnag could and perhaps should well have been instituted in the Sessions Court at Anantnag where respondents would find it easy

to prosecute their case rather than in this Court which must have put them to greater inconvenience and expenditure. That the revision petition has

been instituted in this Court instead of concerned Sessions Court perhaps appears to have been occasioned by the fact that petitioner resides at

Srinagar and instead of going to prosecute the revision petition at Anantnag he choose to drag the respondents all the way from Pahalgam to

Srinagar, which even though permissible in view of the concurrency of revisional jurisdiction of this Court and the court of Sessions can perhaps

not be approved in attending realities of the case. Given that it would perhaps be advisable that as a matter of practice institution of revision

petitions against Magisterial orders be restricted to courts of Sessions, which besides being convenient for the parties would also be in the interests

of proceedings because being nearer to ground realities the court of Sessions can ascertain facts and circumstances of a particular case more

clearly, and if necessary from parties directly and in suitable cases try negotiated settlements also.

The above quoted para squarely applies to instant petition because of the identity of circumstances involved in both the cases; and accordingly,

both for the reason of consistency and fitness, the observations quoted above are adopted in their fullness to determine the cause of this revision

petition.

Accordingly, the petition is disposed of with leave to petitioner for agitating the case before the concerned Sessions Court irrespective of time

factor involved, for conducting the matter in accordance with observations made. Disposed of.