Judgments

No 2 simultaneous proceedings in two different Courts

Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar And Another on 17/7/1991

JUDGMENT

1. In the instant application, the substantial question of law, in the public interest, has been raised and requires decision from this Court.
The substantial question of law raised is as under :

“Whether a Judicial Magistrate First Class trying an application under Section 125 of Cr.P.C., is obliged under law, to stay the proceedings, on the ground that a Civil Court of competent jurisdiction has seized the matter in a suit, in which identical pleadings are made, and same reliefs are claimed by one and the same applicant/plaintiff, in whose favour the Magistrate has already awarded interim maintenance ?”

2. The facts giving rise to the above question of law, in nutshell, are as under :

The applicant and the non-applicant are the legally married spouses.
Their marriage was solmnised as per the customs and rites of Hindu
Religion, some times in the year 1969 at Buldana. Out of the
wed-lock, they have two issues viz. first issue is a son – Sagar who
is living with the applicant while the second issue a daughter Miss
Anjali is living with the non-applicant No. 1 Mrs. Shaila Karmarkar.
The couple had been to Canada and U.S.A. where they stayed for 12 to
13 years along with their children. Both returned some time in the
year 1984 to India and stayed at Buldana till 1986. During this
period, their relations became strained and ultimately on 19/5/86,
the non-applicant filed an application u/S. 125 of Cr.P.C. against
the applicant for maintenance for her and the daughter. Along with
the application for maintenance, the wife had also filed an
application for interim maintenance @ Rs. 500/- p.m. for both the
non-applicants, on the very day. The learned trial Court, after
hearing the parties and considering the facts, awarded Rs. 250.0
p.m. to the wife and Rs. 150/- p.m. to the daughter, as interim
relief. Since the day of the order, the applicant has paid Rs.
24,000/- to the non-applicants as maintenance allowance and that too
in advance. Mr. Vidwanash, the learned counsel for the applicant
submitted that the applicant has made the payment in advance till
October 1991.

3. On 15th or 16th of October 1986, the non-applicant No. 1 wife filed
a regular Civil Suit No. 227/86 for permanent alimony and also for
arrears of maintenance. Along with the plaint, an application for the
attachment of the property before judgment was also filed. On
28-4-1989, the Joint Civil Judge, Jr. Dn., Buldana passed the following
order on the said application :

“Perused the application and say at Exh. 64. The prayer of the
applicant is that Order of attachment before Judgment be passed or
direct the defendants to furnish solvent surety of Rs. one lakh. By
way of Exh. 64, the defendants showed their willingness to furnish
surety of one lakh. Hence, the defendants are directed to furnish
solvent surety of Rs. one lakh”.

In compliance with the above order, on behalf of the defendants, Shri
W. Y. Godbole, resident of Nagpur has furnished the solvent surety
before the Joint Civil Judge, Jr. Dn., Buldana. On 20/3/1991, the
applicant has filed his written statement in the said Civil Suit,
denying the claim of the non-applicants. The case is now posted for
filing the documents.

4. The applicant filed an application to stay the proceedings of Misc.
Criminal Case No. 114/86 before the Judicial Magistrate, First Class,
Buldana, till the decision of the Regular Civil Suit No. 227/86. The
application was opposed. After hearing the parties, the learned
J.M.F.C., Buldana, rejected the application filed by the applicant for
stay of the Misc. Criminal Case No. 114/86 vide his order dated
24-1-1991.

5. Being aggrieved by the order passed by the learned J.M.F.C. Buldana
in Misc. Criminal Case No. 114/86 dated 24-1-1991, the applicant
approached this Court.

6. Mr. Vidwans, the learned counsel for the applicant submitted that
though the non-applicant wife instituted two proceedings, one in the
Criminal Court and another in the Civil Court, but the reliefs are one
and the same. The relief sought in the application u/s. 125 of Cr.P.C.
is to the following effect “to direct the opponent to pay the
subsistence allowance of Rs. 500/- p.m. each to both the applicants
Nos. 1 and 2″.

In the Reg. C.S. No. 227/86, the relief claimed as per prayer clause
(i) is that “It is, therefore, prayed that this Hon’ble Court be
pleased to decree the claim of the plaintiffs by passing necessary
orders of maintenance against the defendant, directing him to pay
arrears of Rs. 7000/- to the plaintiffs and further be ordered him
to provide maintenance allowance @ Rs. 500/0 p.m. each to plaintiffs
i.e. total Rs. 1000/- p.m. from the date of filing of this suit and
onwards permanently”.

The prayers made in the application u/s. 125 of Cr.P.C. and in the Reg.C.S. No. 227/86 are one and the same.

7. Mr. Vidwans, the learned counsel for the applicant submitted that
practically pleadings are identical and verbatim in both the cases. He
took me through the pleadings of both cases and demonstrated that
practically the paras are identical as much as they are in verbatim.
Following paras of the application u/S. 125 of Cr.P.C. are identical to
the paras of the plaintiff in Reg. Civil Suit.

Application u/S. 125 Reg. C.S. No. 227/86 of Cr.P.C.

Therefore, according to Mr. Vidwans, in both the litigations, the fate would be based on the same evidence.

8. The findings given by the Civil Court are binding on the Criminal
Court. Therefore, as the matter is seized with the Civil Court i.e. in
respect of the maintenance allowance and that too the similar amount
which she alleged to be entitled in the application u/s. 125 of
Cr.P.C., instead multiplying the litigations and to harass the
applicant to lead the evidence in different two courts, in the interest
of justice, the application pending in the court of J.M.F.C., Buldana
be stayed till the decision in the Reg. C.S. No. 227/86. It is further
submitted that any verdict given by the Criminal Court is not binding
on the Civil Court but it is vice versa. The reliefs being the one and
the same, the evidence will be common, so also the documents, it is the
interest of both the parties to get the verdict from the Civil Court.

9. Mr. Vidwans, the learned counsel for the applicant relied upon the
case of M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani reported
in 1984 Criminal Law Journal 346 (Bombay). Their Lordships observed in
para 7 as follows (at page 348) :

“I fail to understand what is the qualitative difference between the
two stands. The parties are merely formulating the same propositions
in the two proceedings in different words. The distinction made by
the learned Judge is without any difference, as observed by the
learned Magistrate and as is also apparent from the record, the
dispute in the criminal complaint also revolves on the pivot whether
or not respondents are the sole agents of the petitioners for sale
and export of the petitioner’s goods to the countries concerned. The
learned Addl. Sessions Judge’s interpretation is clearly wrong so
far as this aspect is concerned”.

In para 8, Their Lordships observed that :

“The other two reasons given by the learned Magistrate and indicated
in para 6 supra, are also sound and the learned Addl. Judge has not
bothered himself to consider them. The learned Magistrate’s order
staying the prosecution was eminently just and the learned Addl.
Sessions Judge should not have interfered with it in revision”.

The reliance also been placed on the case of William J. W. Ross v.
Eleanor Agnes Ross reported in AIR 1932 Sind 210 (DB) : (1933 (34) Cri
LJ 548). In that case before their Lordships, the wife instituted the
proceedings u/Ss. 488 and 489 of Cr.P.C. and the husband had already
instituted the proceedings for divorce in the Divorce Corut. Their
Lordships observed that -

“I am of opinion that the learned Magistrate would have exercised a
better discretion on receiving an application u/s. 488 against a
husband who had already instituted proceedings in the divorce Court,
if he had referred the applicant for her remedy to the Civil Court.
I do not think that it was the intention of the legislature in S.
489 to encourage applicants to resort to criminal Courts up to the
very time when an order was passed by a competent Civil Court. As
the Civil Court was seized of the matter, it seems to me clear, it
is better that the Civil Court should dispose of it, and in the
circumstances which have arisen in the present case, I am of opinion
that a High Court would stay proceedings in a criminal Court until
the conclusion of the divorce petition. We accordingly direct the
learned Magistrate to sta

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