JUDGMENT
B.J. Shethna, J.
1. The petitioner who is the son of the respondent No. 1-Mother, has filed this petition under Article 227 of the Constitution of India against the condition imposed by the learned Sessions Judge in the operative part of his order, though he allowed the revision application of the petitioner on 17.9.1992. By that condition, the petitioner is directed to pay interim maintenance at the rate of Rs. 300/- per month with effect from 1.8.1992 till the application for interim maintenance is decided by the Trial Court and to pay costs of Rs. 300/- to his mother.
2. The respondent No, 1 Mother has filed maintenance application Under Section 125 of Cr.P.C. against her two sons viz. (1) the present petitioner and (2) present respondent No. 2, before the learned Judicial Magistrate, First Class. Junagadh. Her Chief-examination was over and the petitioner was personally cross-examining her in which a particular question was asked by the petitioner which was disallowed by the learned Magistrate on the ground that the same question was repeatedly asked. As the learned Magistrate was of the opinion that the petitioner was unnecessarily delaying the case, therefore, he did not permit the petitioner to further cross-examine his mother and ordered to close the cross-examination.
Thereupon, the petitioner submitted application Exh. 61 on 12.5.1992 before the learned Magistrate praying that he may be allowed to continue his cross-examination. It was objected to on behalf of the mother. The learned Magistrate rejected that application by his order dated 12.5.1992 as he was of the opinion that the applicant was an old lady and his son was personally cross-examining her since last two adjournments and even on the third date also he was only repeating the same questions which were irrelevant and thereby deliberately delaying the case. He was of the view that the proceedings under Section 125 of Criminal Procedure Code are of a summary nature and therefore it should be decided as early as possible. Therefore, he held that further cross-examination which was not permitted earlier cannot be allowed subsequently.
3. The above order passed by the learned Magistrate rejecting his application Exh. 61, was challenged by the petitioner before the learned Sessions Judge in Criminal Revision Application No. 90 of 1992. The learned Sessions Judge allowed that revision by his order dated 17.9.1992 and directed the learned Magistrate to proceed further with the case, after giving an opportunity of further cross-examination to the petitioner, on condition that the petitioner shall pay Rs. 300/- per month by way of interim maintenance to the mother with effect from 1.8.1992 and also to pay costs of Rs. 300/- of that revision application to his mother, which is challenged in this petition. On 12.11.1992, this Court admitted the petition and fixed it for final hearing on 7.12.1992 and also granted ad-interim relief in terms of para 15(C) of the petition till further order. Thus, the aforesaid condition imposed by the learned Sessions Judge and the order of payment of costs have been stayed by this Court.
Today, when this matter was called out, Shri Shah, the learned Advocate for the petitioner has submitted that the notice of this petition has been duly served upon the respondent No. 1-Mother and the only added respondent No 3-State but it has not been served upon the respondent No. 2 so far. Therefore, the petition cannot be said to be ready and therefore he cannot be heard till the respondent No. 2 duly served.
4. It is true that the respondent No. 2 is yet not served. He is none else but the brother of the petitioner. This petition is arising out of the order passed by the learned Sessions Judge against the order passed by the learned Magistrate below application 61 died by the petitioner by which his prayer to further cross-examine his mother was rejected by the learned Magistrate. The respondent No. 2 was a party before the learned Magistrate and the learned Sessions Judge in revision. But he has neither made any application before the learned Magistrate, nor has challenged any order before the Sessions or this Court. No order is passed against him by the Courts below. In fact, he is not at all interested in the proceedings. Any order passed in the petition is not going to affect his right and merely because he is not served, would not be any ground for not hearing this petition today, particularly when the ad-interim relief granted by this Court is continued against the respondent No. 1 is though served is unable to even engage an advocate or to remain present personally before this Court. If the petition is not heard today, the whole purpose of awarding Rs. 300/- per month by way of maintenance to the mother, passed by the learned Sessions Judge would be frustrated. In my view, the respondent No. 2 is neither necessary nor proper party to this petition because any order passed in this petition is not going to adversely affect him. He is residing at Bombay and to serve him is in the hands of the petitioner and he may not be served for a pretty long time for more than one reasons. Therefore, Mr. Shah was called upon to argue the matter on merits.
5. Mr. Shah has submitted that the learned Judge has committed grave error in imposing the impugned condition of paying Rs. 300/- per month with effect from 1.8.1992, while allowing the revision application of the petitioner. He further submitted that even the mother has not prayed for such order, nor even it was submitted by her before the learned Sessions Judge during the course of arguments of that revision application that if the learned Judge is inclined to allow that revision application of the petitioner, then while allowing the revision application, such condition of interim maintenance at the rate of Rs. 300/- per month be imposed. Thus, the learned Judge has exceeded in his jurisdiction in imposing Such condition. Therefore, he submitted that this Court should exercise its powers under Article 227 of the Constitution of India and set-aside the impugned condition from the order. In support of his aforesaid submissions, he has relied upon two judgments of the Supreme Court, reported in (1) AIR 1970 SC 406 and (2) AIR 1970 SC 1408.
6. The facts in both the aforesaid decisions were totally different. The question in those cases was regarding the pleadings and issues raised in civil matter and in that connection, the Supreme Court has held that if there are no pleadings, the Court cannot decide the issues which are not before it. Thus, the aforesaid decisions of the Supreme Court will not apply to the facts of the present case.
7. The proceedings under Section 125 of Criminal Procedure Code are of a summary nature. They are for the protection of deserted wife, minor children, mother or father and to save them from starvation. When the learned Magistrate himself found that the petitioner was adopting delaying tactics in disposal of the case, then he himself should have awarded the interim maintenance to the mother, irrespective of the fact whether such application was made or not. However, the Sessions Judge took care of the situation while allowing that revision application of the petitioner-son imposed condition of paying Rs. 300/- per month as an interim maintenance with effect from 1.8.1992 and also to pay costs of Rs. 300/- of that revision application. The condition is not only just and proper but also very much needed in the peculiar facts and circumstances of .the case. The learned Judge had the powers under Section 377-399 r./w. Section 401 of Cr.P.C. and in exercise of his suo motu powers when he has imposed such condition and saved the mother from Starvation, this Court will certainly not interfere with the same in its supervisory jurisdiction under Article 227 of the Constitution of India. Therefore, the above contention .raised by Mr. Shah fails and rejected.
8. Unfortunate mother is a very old lady aged 77 years and at the fag-end of her life, she is almost placed in a position of a begger and that too by none else but by her sons to whom she gave birth. She must have suffered a lot in bringing them up’ and made strenuous efforts in uplifting and setting up them in life. Rs. 300/- per month is a paltry amount for the petitioner. As a major son, not only he is legally but also morally bound to maintain his old mother but he is not ready to pay a single paise to his mother. For not paying her, he contested the case by engaging advocate before the Trial Court, then personally conducted his case and made efforts to delay the proceedings before the learned Magistrate. Thereafter, he dragged her before the Sessions Court and when the Sessions Judge has done some justice to the mother, he has filed this petition.
9. Under the aforesaid circumstances, I am of the opinion that if the Court has jurisdiction and powers then without waiting for any one to approach it, the Court must grant such relief to such neglected, helpless and old persons like the respondent No. 1, so they can at least survive in these hard days. If real and substantial justice is done by the lower Court, then this Court will and shall not interfere in exercise of its jurisdiction, much less under Article 227 of the Constitution of India. Therefore, this petition directed against the impugned condition imposed by the learned Judge is required to be rejected.
10. In view of the above discussion, I do not see any reason or substance in this petition. Accordingly, it fails and rejected. Rule is discharged. Interim relief granted earlier stands vacated. Copy of the writ may be sent down to the Trial Court forthwith.