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Tuesday, February 14, 2017

No circumstance to compromise - court can not force them to compromise = That the pending cases between the petitioner and Col.Satish Chander, if gone into their details, cannot be withdrawn under the circumstances mentioned below:- (a) That the Bhiwani Family Court allowed the marriage expenses for Rs.4,00,000/- (Rupees four lacs) on 12.01.2015 in 2002/2012 in Sneh Lata Vs. Col.Satish Chander, the execution petition Exe/0000340/2015 is pending before Hon'ble Family Court, Bhiwani. Therefore at this stage of its execution how petitioner can be forced to withdraw the execution petition since all the expenses made by the petitioner for her daughter marriage was after obtaining the loans from relations and friends and the same is required to be paid back to them by the petitioner. (b) That the petitioner as well as Col.Satish Chander have filed appeal before this Hon'ble Court for increase of the grant of marriage expenses therefore, the same cannot be withdrawn as FAO No.3676 of 2015 and FAO No.4356 of 2015 are pending before this Hon'ble Court. (c) That the petitioner was granted maintenance on 06.3.2012 for Rs.20,000/- P.M., the petitioner has filed a suit under section 127 Crl.P.C. for enhancement of maintenance because it is not possible to live in a minimum required means by Award of Rs.20,000/- which includes her house rent also therefore, the same can not be withdrawn. (d) That the petitioner was left with no means by Col.Satish Chander when they both were residing at Flat No.4-C Sivsakti Apartment Plot No.10 Sec.10, Dwarka, New Delhi. Col.Satish Chander while deserting the petitioner took away his CSD Canteen Card, LPG Gas connection papers, ATM Card along with all the cheque books. Col.Satish Chander in collusion with the house owner got the electricity and water connection dis-connected specially when her daughter was appearing for M.Tech examination. Finally when the petitioner had gone out of flat and her daughter had gone to college, Col.Satish Chander got the house locked by the house owner by putting another lock over the lock of petitioner already put by the petitioner. The petitioner was not allowed to enter in the society premises of house thus her all belonging except the clothes she was wearing was under the control of house owner. This was done by help and advise of Col.Satish Chander, therefore, the petitioner filed a case for domestic violence against Col.Satish Chander which is on its final stage of hearing and can not be withdrawn it under any circumstances. (e) Therefore despite the facts mentioned above this Hon'ble Court has mentioned that both the parties undertake to withdraw the pending cases which was never agreed at all the endorsement made on this issue needs to be recalled by this Hon'ble Court.”= That this Hon'ble Court has committed grave error of law and facts while coming to the conclusion and passed the judgment dated 26.08.2015, which is apparently a legal error on the face of it which has resulted into a grave miscarriage of justice for the applicant and same is to be rectified by this Hon'ble Court by taking cognizance of the application and to meet the end of justice in furtherance of doing complete justice.” 8. The said application was taken up by the High court on 23.09.2015, when the High Court passed the following order :- “Heard. No ground is made out for recalling of the order dated 26.08.2015 passed by this Court. The application stands dismissed with special costs of Rs. 10,000/- to be paid to the High Court Legal Service Committee.” 9. Having regard to the averments made in the application for recall, it is fairly clear that it cannot be said that there is no ground made out for recalling the order dated 26.08.2015.= Since we propose to remit the review applications to the High Court, we refrain from making any further observation at this stage. The order dated 23.09.2015 is set aside and CRM No. 30993 of 2015 in C.R.R.(F) No. 151 of 2013 is remitted to the High Court.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOs. 260-261 OF 2017
          [@ SPECIAL LEAVE PETITION (CRL.) NO. 9773-9774 OF 2015 ]

      SUSHILA KUMARI                             Appellant(s)

                                VERSUS

      COL. SATISH CHANDER                       Respondent(s)

                               J U D G M E N T

KURIAN, J.
1.    Leave granted.

2.    Heard Sh. Narender Hooda, learned senior  counsel  appearing  for  the
appellant  and  Mr.  Rakesh  Dahiya,  learned  counsel  appearing  for   the
respondent.

3.    The appellant has challenged the order dated 26.08.2015 passed by  the
High Court of Punjab and Haryana at Chandigarh  in  CRR  No.  1654  of  2012
(O&M) and CRR (F) No. 151 of 2013 (O&M).  Both petitions were taken  up  and
disposed of by a common Judgment.

4.    The short impugned Judgment is reproduced as under :-
“On the intervention of the Court, Lt. Col. Satish Chander  along  with  his
counsel Mr. Aman Pal, Advocate as well as Smt.  Sushila  Kumari  along  with
her counsel Mr.Babbar  Bhan,  Advocate,  who  are  present  in  Court,  have
resolved their dispute whereby Lt. Col. Satish  Chander  undertakes  to  pay
Rs. 21,000 per month w.e.f. today as maintenance which shall be credited  to
the  bank  account  of  Smt.  Sushila  Kumari  every   month   through   the
salary/pension account of Lt. Col. Satish Chander for which he  would  issue
necessary instructions to the authority concerned  for  regularly  crediting
the amount. Lt. Col. Satish Chander  further  undertakes  that  after  every
five years w.e.f. today he  will  increase  the  amount  of  maintenance  by
Rs.2,000 automatically. Both the parties undertake that they shall  withdraw
all the litigation pending against each other except  the  divorce  petition
and shall not  initiate  any  other  fresh  litigation  against  each  other
arising out of this matrimonial dispute. It has been  further   agreed  that
out of the total arrears amounting to Rs. 9,21,000  till  August,  2015,  an
amount of Rs. 3,56,000 which is still unpaid  shall  be  paid  by  Lt.  Col.
Satish Chander to Smt.Sushila Kumari within a period of six months in  equal
installments. The parties shall be bound by this settlement.
      In the light of statements made before the Court by  both  the  sides,
the present petitions stand disposed of.”

5.    According to the appellant, the facts, as recorded by the  High  Court
in the  impugned  Judgment,  were  factually  incorrect  and  there  was  no
agreement as recorded by the Court as far as withdrawal  of  the  cases  are
concerned.  The agreement was only to the schedule  of  payment  of  arrears
and enhancement of the maintenance by Rs.  1000/-.   In  that  view  of  the
matter, the appellant filed  an  application  for  recall  of  the  impugned
order, being Criminal Misc. Application No. 30993 of 2015.  At  paragraph  6
of the said application, it has been averred as follows :-

“That this Hon'ble Court in the order/judgment has mentioned that  both  the
parties undertake to withdraw all  their  litigation  pending  against  each
other except the divorce petition and shall not  initiate  any  other  fresh
litigation against each other arising out of this matrimonial  dispute.   It
is respectfully submitted that the petitioner along with  her  Advocate  who
was present in the Court vehemently opposed to withdraw  any  pending  cases
before the Court.  The Hon'ble Court had asked the petitioner  to  sign  the
agreement but the petitioner refused to  do  so  still  this  Hon'ble  Court
recorded in the judgment that both the parties  undertake  to  withdraw  all
pending cases which is far from the facts.”

6.    It is further stated at paragraph 7 that four criminal  cases  pending
between the parties cannot be withdrawn.  Paragraph 7 of the application  is
reproduced below :-
      “7.   That the pending cases between  the  petitioner  and  Col.Satish
Chander,  if  gone  into  their  details,  cannot  be  withdrawn  under  the
circumstances mentioned below:-
(a) That  the  Bhiwani  Family  Court  allowed  the  marriage  expenses  for
Rs.4,00,000/- (Rupees four lacs) on 12.01.2015 in  2002/2012  in  Sneh  Lata
Vs. Col.Satish Chander, the execution petition Exe/0000340/2015  is  pending
before Hon'ble Family Court,  Bhiwani.   Therefore  at  this  stage  of  its
execution how petitioner can be forced to withdraw  the  execution  petition
since all the expenses made by the petitioner for her daughter marriage  was
after obtaining the loans  from  relations  and  friends  and  the  same  is
required to be paid back to them by the petitioner.
(b) That the petitioner as well as  Col.Satish  Chander  have  filed  appeal
before this Hon'ble Court for increase of the  grant  of  marriage  expenses
therefore, the same cannot be withdrawn as  FAO  No.3676  of  2015  and  FAO
No.4356 of 2015 are pending before this Hon'ble Court.
(c) That the petitioner was granted maintenance on 06.3.2012 for Rs.20,000/-
 P.M., the petitioner has filed  a  suit  under  section  127  Crl.P.C.  for
enhancement of maintenance because it is not possible to live in  a  minimum
required means by Award of Rs.20,000/- which includes her  house  rent  also
therefore, the same can not be withdrawn.
(d) That the petitioner was left with no means by  Col.Satish  Chander  when
they both were  residing  at  Flat  No.4-C  Sivsakti  Apartment  Plot  No.10
Sec.10,  Dwarka,  New  Delhi.   Col.Satish  Chander  while   deserting   the
petitioner took away his CSD Canteen Card, LPG Gas  connection  papers,  ATM
Card along with all the cheque books.  Col.Satish Chander in collusion  with
the house owner got  the  electricity  and  water  connection  dis-connected
specially when her daughter was appearing for M.Tech  examination.   Finally
when the petitioner had gone out of  flat  and  her  daughter  had  gone  to
college, Col.Satish Chander got the house  locked  by  the  house  owner  by
putting another lock  over  the  lock  of  petitioner  already  put  by  the
petitioner.  The  petitioner  was  not  allowed  to  enter  in  the  society
premises of house thus  her  all  belonging  except  the   clothes  she  was
wearing was under the control of house owner.  This was  done  by  help  and
advise of Col.Satish Chander, therefore, the petitioner  filed  a  case  for
domestic violence against Col.Satish Chander which is on its final stage  of
hearing and can not be withdrawn it under any circumstances.
(e)  Therefore despite the facts mentioned  above  this  Hon'ble  Court  has
mentioned that both the parties undertake  to  withdraw  the  pending  cases
which was never agreed at all the endorsement made on this  issue  needs  to
be recalled by this Hon'ble Court.”

7.    Hence, at paragraph 11 of the application,  the  appellant  prayed  as
follows :-
      “11.  That this Hon'ble Court has committed grave  error  of  law  and
facts  while  coming  to  the  conclusion  and  passed  the  judgment  dated
26.08.2015, which is apparently a legal error on the face of  it  which  has
resulted into a grave miscarriage of justice for the applicant and  same  is
to  be  rectified  by  this  Hon'ble  Court  by  taking  cognizance  of  the
application and to meet the end of justice in furtherance of doing  complete
justice.”

8.    The said application was taken up by the  High  court  on  23.09.2015,
when the High Court passed the following order :-
      “Heard.
      No ground is made out for recalling  of  the  order  dated  26.08.2015
passed by this Court.
      The application stands dismissed with special costs  of  Rs.  10,000/-
to be paid to the High Court Legal Service Committee.”

9.    Having regard to the averments made in the application for recall,  it
is fairly clear that it cannot be said that there is no ground made out  for
recalling the order dated 26.08.2015.  Mr.  Babbar  Bhan,  learned  counsel,
who appeared for the appellant before the High  Court,  has  also  filed  an
Affidavit before this Court, supporting the averments  in  the  application,
which is extracted above.

10.   Since we propose to remit the review applications to the  High  Court,
we refrain from making any further observation at  this  stage.   The  order
dated 23.09.2015 is set aside and CRM No. 30993 of  2015  in  C.R.R.(F)  No.
151 of 2013 is remitted to the High Court.

11.   We request the High  Court  to  consider  the  recall  application  on
merits and pass appropriate orders  therein  in  accordance  with  law.   In
order to avoid further round of litigation on an ancillary aspect,  we  also
make it clear that even if the High Court finds that  the  learned  advocate
had given the consent, the application may be considered as  one  filed  for
relieving the appellant from the undertaking given by the counsel.

12.   With the above observations and directions, the appeals  are  disposed
of.
                                                   .......................J.
                                                           [ KURIAN JOSEPH ]


                                                   .......................J.
                                                        [ A. M. KHANWILKAR ]

      New Delhi;
      February 08, 2017.

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