Shri Jalha vs Shrimati Daropti

D.B. Lal, J.—This rule in revision has been obtained by Jalha against the order of the Sub-Divisional Magistrate, Sunder Nagar, wherein execution of an order of maintenance passed by the Nyaya Panchayat, Ghumarwin, in favour of Shrimati Daropti, has been upheld and the Petitioner Jalha has been directed to pay the arrears of maintenance and in default to suffer simple imprisonment for one month. As evident Shrimati Daropti is a legally wedded wife of Jalha and since she and her minor child were not maintained by her husband, an application u/s 488 Code of Criminal Procedure was instituted on her behalf before the Nyaya Panchayat, Ghumarwin in the District of Bilaspur. The said Nyaya Panchayat awarded a decree of maintenance in her favour and Jalha was directed to pay Rs. 40 per month to the lady and her minor child with effect from 23-12-1961. Subsequently Jalha did not pay the amount and an application was filed before the Nyaya Panchayat for execution of the decree. The Nyaya Panchayat found some difficulty in executing the decree and as such u/s 97(2) of the Himachal Pradesh Panchayat Raj Act, 1952, the proceedings were submitted to the Sub-Divisional Judge, Bilaspur, for getting the decree executed. It seems that the matter remained pending before the Sub-Divisional Judge for a considerable period of time. Ultimately the Sub-Divisional Judge, Bilaspur, came to the conclusion that the judgment-debtor Jalha resided within the jurisdiction of Tehsil Sunder Nagar and as such the Sub-Divisional Judge of Mandi District was competent to entertain the application for execution. Thereafter the District Magistrate, Bilaspur, made an order of transfer of the execution case to the Court of the Sub-Divisional Judge, Sunder Nagar. Jalha was summoned to appear before that Court. He raised a plea of jurisdiction and contended that the maintenance application could not: be instituted before the Nyaya Panchayat, Ghumarwin, for the reason that Jalha resided within the jurisdiction of Tehsil Sunder Nagar for which another Nyaya Panchayat was constituted. Besides that objection, Jalha further raised a contention that Shrimati Daropti had started living with him and as such she was not entitled to claim any maintenance. The learned Sub-Divisional Judge repelled both the contentions of Jalha as according to him he could not go behind the decree and had to execute it as such. If Jalha had any objection, he could take appropriate proceedings before the Nyaya Panchayat itself. With these observations the order of execution has been upheld and Jalha has been directed to pay the arrears of maintenance and in default to suffer simple imprisonment for one month.

Jalha felt aggrieved of the decision and has come up to this Court in revision.

It is not clear why the Petitioner Jalha has not preferred a revision before the Sessions Judge who has jurisdiction for the court of the Sub-Divisional Judge, Sunder Nagar. Be it as it may, u/s 435 read with Section 439 of the Code of Criminal Procedure, perhaps the High Court will also have its jurisdiction for a revision and as such I do not consider it necessary to enter into this controversy.

Much less to say, the Petitioner Jalha if he invokes the revisional powers of the High Court, has to prove against the propriety or legality of the order made and his claim for invoking jurisdiction will be restricted as compared to an appeal to which he may be entitled. If substantial justice has been done and illegality of law or procedure cannot be established, there would hardly be a ground for interfering in revision. The Petitioner will thus have to establish in a more strict manner as to what illegality or impropriety has been committed by the Sub-Divisional Judge when he made the impugned order. He may have committed some irregularity which touches the fringes of the case but that would not be sufficient. I am thus required to consider the merit of the case with a view to find out, as to whether interference in revisional jurisdiction can be made. The central plea of the Petitioner Jalha has been the want of jurisdiction of the Nyaya Panchayat, Ghumarwin. In a civil proceeding a plea concerning place of suing is required to be taken at the earliest opportunity. That is so provided in Section 21 of the Code of Criminal Procedure. Where a Defendant allows a trial court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he waives the objection, and will not be subsequently permitted to raise it. See: The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, Similar is a position in a criminal proceeding. Section 531 of the Code of Criminal Procedure makes it rather clear that no order of any Criminal Court shall be set aside merely on the ground that the proceeding in the course of which it was arrived at or passed, took place in a wrong court, unless it appears that such error has in fact occasioned a failure of justice. In view of this provision contained in the Code of Criminal Procedure, it is for Jalha to establish as to whether any failure of justice has occasioned which apparently has not and, therefore, the question regarding jurisdiction would be devoid of any merit. It is manifest, the Petitioner did not raise the plea of jurisdiction before the Nyaya Panchayat, Ghumarwin, and took the chance of getting a decision which was unfortunately against him. As no failure of justice has resulted and no prejudice can be stated to be caused to the Petitioner, I do not think that an objection as to the place of suing can at all be raised at this stage. Similarly it could not be raised before the Sub-Divisional Judge or Magistrate.

It is then contended by the learned Counsel that u/s 97 of the Himachal Pradesh Panchayat Raj Act, 1952, the Nyaya Panchayat should have at first sent the execution application to another Panchayat in whose jurisdiction the Petitioner resided or was possessed of property. Since the Nyaya Panchayat has not taken this step, the learned Counsel means to say, that the said Nyaya Panchayat could not have submitted the execution case to the Sub-Divisional Judge. This is a mistaken argument. Where is the evidence to indicate that the Nyaya Panchayat, Ghumarwin, was at all in a position to consider that the Petitioner possessed property within the jurisdiction of some other Panchayat so that it could transfer the execution case to that Panchayat. Under Rule 165 of the Panchayat Rules of Himachal Pradesh, the Nyaya Panchayat could issue a notice to the judgment debtor to pay up the decretal amount and in case the notice was not complied with and the amount was not paid, the order was to be sent to the Sub-Divisional Judge for execution thereof. The rule itself never provided for the transfer of the execution case to another Nyaya Panchayat which was not perhaps considered necessary. Therefore, whatever steps the Nyaya Panchayat, Ghumarwin, had taken, that was done in accordance with the Rule 165 read with Section 97 and no exception can be taken to this procedure.

The other objection of the Petitioner Jalha that the very order of maintenance was unexecutable because the lady had started living with him, also does not appear to be correct. If that is a fact she will not herself get executed the order and perhaps she may be in a position to move an application to the Nyaya Panchayat itself that they are living together by mutual consent and the order be quashed. This step the lady has not yet taken and it is difficult to understand that despite their mutual consent she is insisting for the execution of the decree. If the Petitioner has any grievance in this regard he is at liberty to move a proper application before the Nyaya Panchayat. The learned Sub-Divisional Judge was justified in refusing to entertain any such objection which was unsubstantiated.

u/s 57 of the Himachal Pradesh Panchayat Raj Act the application for maintenance u/s 488 Code of Criminal Procedure was to be heard and decided by the Nyaya Panchayat. Section 490 of the Code of Criminal Procedure provides for enforcement of the order of maintenance and the learned Sub-Divisional Magistrate has made the order under this provision for which no objection can be taken.

In this view of the matter, I do not find any substance in the revision petition and dismiss the same. The rule is discharged and the order of the Sub-Divisional Judge-cum-Magistrate, Sunder Nagar, is confirmed.