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Babru Bahan Kumbhkar vs Kalyani Kumbhakar on 24 September, 2019

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IN THE HIGH
COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 3905 of 2019
—–

Babru Bahan Kumbhkar, son of Biswanath Kumbhkar
Petitioner
Vs.

1.Kalyani Kumbhakar, wife of Late Arjun Kumbhkar

2.Deepika Kumbhakar, D/o Late Arjun Kumbhkar
…. … … Respondents

—–

CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

—–

For the Petitioner : Mr. Akshay Kr. Mahato, Advocate
For the Respondents : —

—–

Order No. 04 : Dated 24th September, 2019

This writ petition is under SectionArticle 227 of the

Constitution of India whereby and whereunder the

judgment/order dated 15.03.2019 passed in O.M. No. 36 of

2017 by Principle Judge, Family Court, Seraikella-Kharsawan

has been assailed by which the maintainable allowance of Rs.

4000/- per month has been granted to the petitioners by

directing the Opp. Party to pay maintenance per month to the

petitioner no. 1 from the date of filing of the petition and the

Opp. Party shall make payment of the said maintenance

amount to the petitioners on or before 10 th of every English

calendar month.

2. Learned counsel for the petitioner at the outset has

argued out the case on the ground of quantum of

maintenance, which is the subject matter of adjudication by

the trial Court by way of point no. (iv), on the ground that the

petitioner is old person and is also keeping other two children

of the petitioner (respondent no. 1 herein) and there is no

independent source of income, save and except, some piece of
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land, which is also not cultivable and therefore, the amount of

maintenance of Rs. 4000/- is highly excessive.

3. This Court before scrutinizing the finding recorded with

respect to the issue of quantum, deem it fit and proper to

refer certain factual aspects, which are necessary for

adjudication of the issue:

The respondent no. 1 is the daughter-in-law of the

petitioner and respondent no. 2 is his granddaughter.

The respondents have filed Original Maintenance Case

being O.M. No. 36 of 2017 before the Court of Principal Judge,

Family Court, Seraikella-Kharsawan praying therein for

maintenance amount of Rs. 6000/- per month to each

petitioner as maintenance, under the provisions of Hindu

Adoptions and SectionMaintenance Act, 1956 (herein after referred to

as ‘Act 1956’).

The petitioner has appeared before the trial Court on

being noticed and defended himself by taking a plea that two

minor daughters of respondent no. 1 is residing with him,

whom the petitioner has been maintaining on the income

derived from a chunk of land having an area of 6-7 bighas

and further stand has been taken that he is ready to keep the

respondents in his house.

The learned Family Court has allowed the interim

maintenance to the tune of Rs. 3000/- per month vide order

dated 18.07.2018 passed in O.M. No. 36 of 2017, against

which, the petitioner has filed Criminal Revision, being Cr.

Rev. No. 1537 of 2018, which is pending before this Court.
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The Principal Judge, Family Court, Seraikella-

Kharsawan has allowed the maintenance application vide

order dated 15.03.2019 passed in O.M. No. 36 of 2017

directing the petitioner to pay Rs. 4000/- per month from the

date of filing of the petition to respondent no. 1 as

maintenance, against which, the present writ petition has

been filed under its revisionary jurisdiction conferred under

SectionArticle 227 of the Constitution of India.

4. This Court, having heard learned counsel for the

petitioner and after going across the pleadings made in the

writ petition and findings recorded in the impugned order, is

not going into the issue of maintainability and applicability of

the provision of the Act, 1956 in the present case, since the

petitioner is not raising the aforesaid issues, save and except,

the issue pertaining to quantum of maintenance.

5. This Court has appreciated the submission/ground

agitated by the petitioner, therefore, the deposition, recorded

by the trial Court, of the witnesses along with their cross-

examinations, are being referred herein below for better

appreciation of the aforesaid issue pertaining to the quantum

of maintenance:

The petitioner, namely, Babru Bahan Kumbhkar, has

filed show cause on 27.04.2018 denying his liability to

maintain on the plea that he is ready to keep the respondents

in his residence after the death of his only son, namely, Arjun

Kumbhkar, who has died on 01.07.2016.

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Kalyani Kumbhakar, the respondent no. 1 herein, who

was the petitioner no. 1 before the trial Court has been

examined as P.W. 1, who in her examination-in-chief has

deposed that the Opp. Party/petitioner always has had evil

eyes on her, which ultimately lead her to leave her

matrimonial hose and come to her parental house with her

youngest daughter. Two minor daughters were kept forcefully

by the petitioner although respondent no. 1 has tried her level

best to get the custody of her two daughters but she has failed

in the said efforts ultimately she has lodged a Guardianship

case bearing no. 2 of 2017, which is pending before the

competent Court.

It has been deposed that 2 and ½ acres of land was in

the name of husband of respondent no. 1 but the opp. party

(petitioner herein) has transferred the said land in his name

as also the petitioner has 50 bighas of landed property and

brick kiln and a tractor.

In the cross examination, she has stated that after birth

of three daughters the petitioner has started torturing her.

Saraswati Bhagat, who is mother of respondent no. 1

has been examined as P.W. 2, who in her examination-in-

chief has stated about the solemnization of marriage of

respondent no. 1 with Late Arjun Kumbhkar, son of petitioner

herein and deposed about the cruelty meted out upon the

respondent no. 1 after death of her husband, for which, she

has also been hospitalized for the injury sustained due to
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brutal assault on respondent no. 1. She has corroborated

about the means of the petitioner.

One Uday Nath Kumbhakar, has been examined on

behalf of petitioner as O.P.W. 1, defending the averments

made by the opp. party/petitioner, has deposed that the case

has been filed only to make this a means of earning income.

The fact about the availability of 50 bighas of land has been

disputed.

Babru Bahan Kumbhkar, who is petitioner herein, has

been examined as O.P.W. 2, who in his cross-examination,

more particularly at paragraph 19 thereof, has admitted that

land of an area 2 acres 59 decimals, which stood in the name

of his son Arjun Kumbhkar was transferred in his name. In

paragraph 22 of his cross-examination, he has stated that he

possessed a deed of gift and the said land is in his possession

but without any sources of income from the said land.

6. The trial Court has proceeded by scrutinizing the

deposition of the aforesaid witnesses and after considering the

provisions of Section 19 and Section21 of the Act, 1956 hold the

respondents as dependents for getting the maintenance under

the provisions of Act, 1956.

7. The question, which has been agitated by the petitioner

about the quantum of maintenance, which the trial Court has

assessed to the tune of Rs. 4000/- to be segregated in the

ratio of Rs. 3000/- and Rs. 1000/- to be paid in favour of

respondent no. 1 and 2 respectively, is stated to be excessive

by the petitioner.

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8. To answer this question, which has been made as point

no. (iv) by the trial Court for its determination and which

pertains to quantum of maintenance, it would be necessary to

refer the provision of Section 23 of the Hindu Adoptions and

SectionMaintenance Act, 1956, which reads as under:

“23.Amount of maintenance. – (1).It shall be in the
discretion of the Court to determine whether any, and if so
what, maintenance shall be awarded under the provisions of
this Act, and in doing so, the Court shall have due regard to
the considerations set out in sub-section (2) or sub-section (3),
as the case may be, so far as they are applicable.

(2).In determining the amount of maintenance, if any, to
be awarded to a wife, children or aged or infirm parents
under this Act, regard shall be had to-

(a)the position and status of the parties;

(b)the reasonable wants to the claimant;

(c)If the claimant is living separately, whether the
claimant is justified in doing so;

(d)the value of the claimant’s property and any
income derived from such property, or from the
claimant’s own earnings or from any other source;

(e)the number of persons entitled to maintenance
under this Act.

(3)In determining the amount of maintenance, if any,
to be awarded to a dependant under this Act, regard
shall be had to-

(a)the net value of the estate of the deceased after
providing for the payment of his debts;

(b)the provision, if any, made under a will of the
deceased in respect of the dependant;

(c)the degree of relationship between the two;

(d)the reasonable wants of the depandant;

(e)the past relations between the dependant and the
deceased;

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(f)the value of the property of the dependent and
any income derived from such property, or from his
or her earnings or from any other source;

(g)the number of dependants entitled to
maintenance under this Act.”

It is evident from the aforesaid provision that the

discretion lies with the Court to determine about quantum of

maintenance and while doing so, the Court shall have due

regard to the considerations set out in sub-section (2) or sub-

section (3), as the case may be that is the position and status

of the parties, the reasonable wants to the claimant, if the

claimant is living separately, whether the claimant is justified

in doing so and the value of the claimant’s property and any

income derived from such property, or from the claimant’s

own earning or from any other source.

9. In the instant case, as would appear from the

depositions made on behalf of parties that even the petitioner

who has been examined as O.P.W. 2 has admitted the fact at

paragraph 19 of his cross-examination that the land of 2

acres and 59 decimals, which was in the name of Arjun

Kumbhkar, the deceased son of the petitioner, was

transferred in his name on the basis of deed of gift. Further

the fact about the brick kiln and tractor has not been

disputed by the petitioner or the witnesses produced on his

behalf. Furthermore, the fact about having two-room pucca

house has also not been disputed.

10. Learned counsel for the petitioner in course of argument

has relied upon the stand taken by the respondents about
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availability of 50 bighas of land, which however has seriously

been disputed but the fact remains that an area of land, 2

acres and 59 decimals, which was in the name of Arjun

Kumbhkar has not been disputed, which has been transferred

in the name of petitioner, as would appear from paragraph 19

of the cross-examination of O.P.W. 2- Babru Bahan

Kumbhakar, the petitioner herein, against whom the direction

has been passed by the trial Court for making payment of

amount of maintenance and therefore, it cannot be said that

the petitioner is not a man of means.

11. Further, the trial Court has taken conscious view by

making reference of the provision of Section 23 of the Act,

1956 which provides for determination of amount of the

maintenance depending upon the status of parties,

reasonable one of the claimants and if living separately the

claim of the claimants is justified or not and after taking into

consideration these aspects of the matter, the trial Court has

passed the order of maintenance of Rs. 3000/- to be paid in

favour of respondent no. 1 and Rs. 1000/- to be paid in

favour of respondent no. 2.

12. This Court is of the view that the finding recorded by the

trial Court cannot be said to be not passed upon any material

evidence rather this Court, after going across the evidence

recorded, is of the view that the determination of quantum of

maintenance, as has been made by the trial Court, is based

upon cogent evidence, as reflected herein above.
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13. The question would be that whether if the finding is

based upon the cogent evidence can the High Court exercise

its supervisory jurisdiction conferred under SectionArticle 227 of the

Constitution of India.

14. For this, this Court intends to go through the scope of

SectionArticle 227 of the Constitution of India.

Dealing with the scope of SectionArticle 227 of the Constitution

of India, Hon’ble Apex Court in the case of Shalini Shyam

Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8

SCC 329 has been pleased to hold therein regarding the

scope of SectionArticle 227 which relates to the supervisory powers of

the High Courts and by taking aid of the judgment rendered

by the Hon’ble Full Bench of Calcutta High Court in the case

of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee,

reported in AIR 1951 Calcutta 193, wherein it has been laid

down that SectionArticle 227 of the Constitution of India does not

vest the High Court with limit less power which may be

exercised at the court’s discretion to remove the hardship of

particular decisions. The power of superintendence confers

power of a known and well recognized character and should

be exercised on those judicial principles which give it its

character. In general words, the High Court’s power of

superintendence is a power to keep the subordinate courts

within the bounds of the authority, to see that they do what

their duty requires and that they do it in a legal manner.

15. The power of superintendence is not to be exercised

unless there has been;

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(a).An unwarranted assumption of jurisdiction, not vested
in a court or tribunal; or

(b).gross abuse of jurisdiction; or

(c).an unjustifiable refusal to exercise jurisdiction vested in
courts or tribunals.

16. Further, in the aforesaid judgment the Hon’ble Apex

Court has taken aid of a judgment rendered in the case of

Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported

in (1991) 3 SCC 141 wherein it has been laid down that in

exercise of jurisdiction under Article 227, the High Court can

set aside or reverse finding of an inferior court or tribunal

only in a case where there is no evidence or where no

reasonable person could possibly have come to the conclusion

which the court or tribunal has come to.

17. The Hon’ble Apex Court has made it clear that except to

this limited extent the High court has no jurisdiction to

interfere with the finding of facts.

18. Further, the judgment rendered by the Hon’ble Apex

Court in the case of Laxmikant Revchand Bhojwani Vrs.

Pratapsing Mohansingh Pardeshi, reported in (1995) 6

SCC 576 it has been laid down that the High Court under

SectionArticle 227 cannot assume unlimited prerogative to correct all

species of hardship or wrong decisions. Its exercise must be

restricted to grave dereliction of duty and flagrant abuse of

fundamental principles of law and justice.

19. It has been laid down at paragraph 47 of the aforesaid

judgment that the jurisdiction under SectionArticle 227 is not

original nor is it appellable. This jurisdiction of
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superintendence under SectionArticle 227 is for both administrative

and judicial superintendence. Therefore, the powers conferred

under SectionArticle 226 and Section227 are separate and distinct and

operate in different fields. Another distinction between these

two jurisdictions is that under SectionArticle 226 the High Court

normal annuls or quashes an order or proceedings but in

exercise of its jurisdiction under SectionArticle 227, the High Court,

apart from annulling the proceeding, can also substitute the

impugned order by the order which the inferior tribunal

should have made.

20. It has further been laid down regarding the powers to be

exercised by the High Court under SectionArticle 227 of the

Constitution of India. The High Court, in exercise of its

jurisdiction of superintendence, can interfere in order only to

keep the tribunals and courts subordinate to it within the

bounds of its authority, in order to ensure that law is followed

by such tribunals and courts by exercising jurisdiction which

is vested with them and by not declining to exercise the

jurisdiction which is vested in them. Apart from that, High

Court can interfere in exercise of its power of superintendence

when there has been a patent perversity in the orders of the

tribunals and courts subordinate to it or where there has

been a gross and manifest failure of justice or the basic

principles of natural justice have been flouted.

21. In exercise of its power of superintendence High Court

cannot interfere to correct mere errors of law or fact or just

because another view than the one taken by the tribunals or
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courts subordinate to it, is a possible view. In other words the

jurisdiction has to be very sparingly exercised.

22. It is thus evident that the legal position is settled that

the supervisory power conferred under SectionArticle 227 of the

Constitution of India is to be exercised by High Court, if the

finding recorded by the trial Court is erroneous that is suffers

from perversity and error is apparent on the face of record.

23. But, according to conscious view of this Court, the

finding recorded by the trial Court is based upon the evidence

and suffers from no perversity and, therefore, there is no error

on the face of record warranting interference by this Court

under SectionArticle 227 of the Constitution of India.

24. It is further settled position of law that in case of finding

of facts, the High Court should not interfere in exercise of its

jurisdiction under SectionArticle 227 of the Constitution, in the guise

of exercising its jurisdiction under SectionArticle 227 and converting

itself into a Court of appeal, accordingly, this Court refrains

itself from exercising the jurisdiction under SectionArticle 227 of the

Constitution of India.

25. In consequence thereof, this writ petition lacks merit,

fails and is dismissed.

(Sujit Narayan Prasad, J.)

Alankar/-

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