Ajeet Kumar @ Ajit Kumar v. Swarn Lata @ Guddan

IN THE HIGH COURT OF JUDICATURE AT PATNA

Letters Patent Appeal No.745 of 2015 Arising out of Civil Writ Jurisdiction Case No. 13017 of 2012 Along with Interlocutory Application No.3131 of 2015 =========================================================== Ajeet Kumar @ Ajit Kumar, S/o Sri Kameshwar Thakur, resident of Village - Repura, P.O.- Mahamadpur Susta, P.S.- Sakra, District - Muzaffarpur. .... .... Petitioner-Appellant/s

Versus

Swarn Lata @ Guddan, D/o Arun Thakur, W/o Ajeet Kumar, Resident of Village - Repura, P.O.- Mahamadpur Susta, P.S.- Sakra, District - Muzaffarpur, presently residing at Village - Ratanpura, P.O.- Ratanpura, P.S.- Kamtaul, District - Darbhanga.

.... .... Respondents- Respondent/s =========================================================== Appearance :

For the Appellant/s : Mr. Diwakar Prasad Karn, Advocate Mr. Chandra Shekhar Anand, Advocate For the Respondent/s : None =========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT GUPTA and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE HEMANT GUPTA) Date: 05-08-2016 Re.: Interlocutory Application No.3131 of 2015 The application is for condonation of delay of 7 days in filing of the present Letters Patent Appeal.

2. For the reasons mentioned in the application, we find that sufficient cause is made out for condonation of delay. Consequently, we condone the delay in filing of the present Letters Patent Appeal.

3. Interlocutory Application stands allowed accordingly.

Patna High Court LPA No.745 of 2015 dt.05-08-2016 2/3 Re.: Letters Patent Appeal No.745 of 2015 The order dated 12th of November, 2014 passed in CWJC No.13017 of 2012 by a learned Single Bench of this Court is subject matter of challenge in the present Letters Patent Appeal whereby, challenge to an order dated 22nd May, 2012 passed in Matrimonial Case No.134 of 2009 by the Principal Judge, Family Court, Muzaffarpur allowing an application filed by the respondent under Section 24 of the Hindu Marriage Act directing the appellant to pay Rs.5000/ per month as interim maintenance till disposal of the case and also pay a sum of Rs.2000/- towards expenses of the proceeding remained unsuccessful.

2. The said order was passed in a petition under Article 227 of the Constitution of India. Since the impugned order was passed in Matrimonial Case No.134 of 2009 under Section 24 of the Hindu Marriage Act by the Principal Judge, Family Court, Muzafarpur, therefore such order cannot be challenged in intra court appeal.

3. The Hon'ble Supreme Court in the case of Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors. reported as (2015) 9 SCC 1 has held that an order passed by the learned Single Judge in a proceeding arising out of an order passed by the Civil Court is not amenable to intra court appeal against an order passed under Article 227 of the Constitution of India. It was held to the following

Patna High Court LPA No.745 of 2015 dt.05-08-2016 3/3 effect:- "18. The aforesaid authoritative pronouncement makes it clear as day that an order passed by a civil court can only be assailed under Article 227 of the Constitution of India and the parameters of challenge have been clearly laid down by this Court in series of decisions which have been referred to by a three-Judge Bench in Radhey Shyam; (2015) 5 SCC 423, which is a binding precedent. Needless to emphasise that once it is exclusively assailable under Article 227 of the Constitution of India, no intra-court appeal is maintainable."

4. In view of such order, we find that the present Letters Patent Appeal is not maintainable and is dismissed. (Hemant Gupta, J.) (Ahsanuddin Amanullah, J.) Sunil/- AFR/NAFR CAV DATE N. A.

Uploading Date 12.08.2016 Transmission Date