SHAMIM SANOversusASRAF KHAN

                        [2014] 4 S.C.R 844


A                         SHAMIM SANO
                                 v
                          ASRAF KHAN
                (Criminal Appeal No. 820 of 2014)
                         APRIL 16, 2014
B
          [DIPAK MISRA AND VIKRAMAJIT SEN, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:

c      s.125 ·Claim of maintenance by a Muslim woman, who
  during the pendency of application was divorced - Held:
  Application u/s 125 was prior to date of divorce and hearing
  of application continued • Husband contested the same
  without raising the plea of consent - Even if an application ul
0 s 3 of Muslim Women (Protection of Rights on Divorce) Act
  for grant of maintenance was filed, parameters of s. 125 CrPC
  would have been made applicable, as Magistrate still retains
  the power of granting maintenance to a divorced Muslim wife
  uls 125 CrPC - Besides, when a marriage breaks up, the wife
E suffers - It is law's duty to recompense and primary obligation
  is that of husband - Matter remitted to Magistrate for re-
  adjudication of controversy in question keeping in view the
  principles stated in the judgment - Muslim Women (Protection
  of Rights on Divorce) Act, 1986 - ss. 3 and 4.

F     In the instant appeal filed by a Muslim wife who was
  divorced during the pendency of her application u/s 125
  CrPC, the questions for consideration before the Court
  were: (i) whether the appellant's application for grant of
  maintenance u/s 125 of the Code of Criminal Procedure,
G 1973 was to be restricted to the date of divorce and,
  because of filing of an application u/s. 3 of the Muslim
  Women (Protection of Rights on Divorce) Act, 1986 after
  the divorce for grant of mahr and return of gifts would
  disentitle the appellant to sustain the application uls. 125
H                              844
           SHAMIM BANO v. ASRAF KHAN                    845

of the Code; and whether regard being had to the fact          A
situation, the consent u/s. 5 of the Act was an imperative
to maintain the application.
    Allowing the appeal, the Court

     HELD: 1.1 In Khatoon Nisa*, this Court has held that      B
even an application has been filed under the provisions
of the Muslim Women (Protection of Rights on Divorce)
Act, 1986, the Magistrate under the Act has the power to
grant maintenance in favour of a divorced Muslim woman
and the parameters and the considerations are the same         C
as stipulated in s. 125 of the Code. Thus, the emphasis
is on the retention of the power by the Magistrate u/s 125
of the Code and the effect of ultimate consequence. [para
13] [855-C-D, F]
                                                               D
    *Khatoon Nisa v. State of U.P. and Ors. 2002 (6) SCALE
165 - relied on.
    Shabana Bano vs. lmran Khan 2009 (16) SCR 190         =
2010 (1) sec 666 - referred to.
                                                               E
     1.2 In the instant case, the High Court has erred in
holding that as the appellant had already taken recourse
to s. 3 of the Act after divorce took place and obtained
relief which has been upheld by the High Court, the
application for grant of maintenance u/s. 125 of the Code      F
would only be maintainable till she was divorced. It may
be noted that during the pendency of her application u/
s. 125 of the Code, the divorce took place. The wife
preferred an application u/s. 3 of the Act for grant of mahr
and return of articles. The Magistrate directed for return     G
of the articles, payment of quantum of mahr and also
thought it appropriate to grant maintenance for the iddat
period. Thus, in effect, no maintenance had been granted
to the wife beyond the iddat period by the Magistrate as
the petition was different, which was not filed for grant      H
    846     SUPREME COURT REPORTS             [2014] 4 S.C.R.


A of maintenance. That apart, the authoritative
  interpretation in Danial Latifi was not available. (Para 15]
  (856-8-E]
       Danial Latifi and another v. Union of India 2001 (3)
    Suppl. SCR 419 = 2001 (7) sec 740 - referred to.
8
      1.3 In any case, it would be travesty of justice if the
  appellant would be made remediless. Her application u/
  s. 125 of the Code was continuing. The husband
  contested the same on merits without raising the plea of
C absence of consent. Even if an application u/s. 3 of the
  Act for grant of maintenance was filed, the parameters of
  s. 125 of the Code would have been made applicable.
  Quite apart from that, the application for grant of
  maintenance was filed prior to the date of divorce and
D hearing of the application continued. Another aspect
  which has to be kept in mind is that when the marriage
  breaks up, a woman suffers from emotional fractures,
  fragmentation of sentiments, loss of economic and social
  security and, in certain cases, inadequate r.equisites for
E survival. It is the law's duty to recompense, and tbe
  primary obligation is that of the husband. The entitlement
  and the necessitous provisions have to be made in
  accordance with the parameters of law. [Para 15-16] [856-
  F-H; 857-A-B]
F         Mohd. Ahmed Khan v. Shah Bano Begum and others
    1985 (3) SCR 844   =
                       1985 (2) SCC 556 - referred to.
       1.4 In the circumstances, regard being had to the
  dictum in Khatoon Nisa's case, seeking of option would
G not make any difference~ The High Court is not correct
  in opining that when the appellant-wife filed application
  u/s. 3 of the Act, she exercised her option. As the
  Magistrate still retains the power of granting maintenance
  u/s. 125 of the Code to a divorced Muslim woman and the
H proceeding was continuing without any objection and
            SHAMIM SANO v. ASRAF KHAN                    847

the ultimate result would be the same, there was no A
justification on the part of the High Court to hold that the
proceeding after the divorce took place was not
maintainable. [Para 17] [857-B-D]

      1.5 In the circumstances, it would be appropriate that
                                                                8
the matter should be heard and dealt with by the
Magistrate so that parties can lead further evidence. Be
it clarified, if, in the meantime, the appellant has remarried,
the same has to be taken into consideration. It would be
open to the appellant-wife to file a fresh application for
grant of interim maintenance, if so advised. The impugned C
orders are set aside and the matter is remitted to the
Magistrate for re-adjudication of the controversy in
question keeping in view the principles stated in the
judgment. [Para 18-19] [857-F-H]
                                                                D
                     Case Law Reference:
    2001 (3) Suppl. SCR 419 referred to            para 9
    1985 (3) SCR 844            referred to        para 8
    2002 (6) SCALE 165          relied on          para 12      E

    2009 (16) SCR 190           referred to        para 14
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 820 of 2014.
                                                                F
     From the Judgment and Order dated 01.03.2012 in
MCRC No. 188/2005 of the High Court of Chhattisgarh at
Bilaspur.
   Fakhruddin, Raj Kishor Choudhary, Neeru Sharma, Surya
Kamal Mishra (for T. Mahipal) for the Appellant.         G
    Kaustubh Anshuraj, Vikrant Singh Sais for the Respondent.
    The Judgment of the Court was delivered by

    DIPAK MISRA, J. 1. Leave granted.                           H
    848      SUPREME COURT REPORTS                 [2014) 4 S.C.R.


A      2. The appellant, Shamim Bano, and the respondent, Asraf
  Khan, were married on 17.11.1993 according to the Muslim
  Shariyat law. As the appellant was meted with cruelty and
  torture by the husband and his family members regarding
  demand of dowry, she was compelled to lodge a report at the
B Mahila Thana, Durg, on 6.9.1994, on the basis of which a
  criminal case under Section 498-A read with Section 34 IPC
  was initiated and, eventually, it was tried by the learned
  Magistrate at Rajnandgaon who acquitted the accused persons
  of the said charges.
c         3. Be it noted, during the pendency of the criminal case
    under Section 498-A/34 IPC before the trial court, the appellant
    filed an application under Section 125 of the Code of Criminal
    Procedure (for short "the Code") in the Court of Judicial
    Magistrate First Class, Durg for grant of maintenance on the
D   ground of desertion and cruelty. While the application for grant
    of maintenance was pending, divorce between the appellant
    and the respondent took place on 5.5.1997. At that juncture,
    the appellant filed Criminal Case No. 56 of 1997 under Section
    3 of the Muslim Women (Protection of Rights on Divorce) Act,
E   1986 (for brevity "the Act") before the learned Judicial
    Magistrate First Class, Durg. The learned Magistrate, who was
    hearing the application preferred under Section 125 of the
    Code, dismissed the same on 14.7.1999 on the ground that
    the appellant had not been able to prove cruelty and had been·.
F   living separately and hence, she was not entitled to get the
    benefit of maintenance. The learned Magistrate, while dealing
    with the application preferred under Section 3 of the Act,
    allowed the application directing the husband and others to pay
    a sum of Rs.11,786/- towards mahr, return of goods and
G   ornaments and a sum of Rs.1, 750/- towards maintenance
    during the lddat period.

         4. Being grieved by the order not granting maintenance,
    the appellant filed Criminal Revision No. 275 of 1999 and the
    revisional court concurred with the view expressed by the
H
             SHAMIM BANO v. ASRAF KHAN                         849
                  [DIPAK MISRA, J.)
  learned Magistrate and upheld the order of dismissal. The           A
  aforesaid situation constrained the appellant to invoke the
  jurisdiction of the High Court under Section 482 of the code in
  Misc. Crl. Case No. 188 of 2005. Before the High Court a
  preliminary objection was raised on behalf of the respondent-
  husband that the petition under Section 125 of the Code was         8
  not maintainable by a divorced woman without complying with
  the provisions contained in Section 5 of the Act. It was further
  put forth that initial action under Section 125 of the Code by
  the appellant-wife was tenable but the same deserved to be
  thrown overboard after she had filed an application under           C
  Section 3 of the Act for return of gifts and properties, for
  payment of mahr and also for grant of maintenance during the
  'lddat' period. It was also urged that the wife was only entitled
  to maintenance during the lddat period and the same having
· been granted in the application, which was filed after the
  divorcf;!, grant of any maintenance did not arise in exercise of    D
  power under Section 125 of the Code. Quite apart from the
  above, both the parties also had advanced certain contentions
  with regard to obtaining factual score.

      5. The High Court, after referring to certain authorities, E
 came to hold that a Muslim woman is entitled to claim
 maintenance under Section 125 of the Code even beyond the
 period of lddat if she was unable to maintain herself; that where
 an application under Section 3 of the Act had already been
 moved, the applicability of the provisions contained in Sections F
 125 to 128 of the Code in the matter of claim of maintenance
 would depend upon exercise of statutory option by the divorced
 woman and her former husband by way of declaration either in
 the form of affidavit or in any other declaration in writing in such
 format as has been provided either jointly or separately that they G
 would be preferred to be governed by the provisions of the
 Code; that the applicability of Sections 125 to 128 of the Code
 would depend upon exercise of statutory option available to .
 parties under Section 5 of the Act and as the appellant-wife had
 taken recourse to the provisions contained in the Act, it was to
                                                                      H
    850      SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A be concluded that she was to be governed by the provisions
  of the Act; that the claim of the appellant under Section 125 of
  the Code until she was divorced would be maintainable but after
  the divorce on filing of an application under Section 3 of the
  Act, the claim of maintenance, in the absence of exercise of
8 option under Section 5 of the Act to be governed by Section
  125 of the Code, was to be governed by the provisions
  contained in the Act; that as the application under Section 3 of
  the Act having already been dealt with by the learned Magistrate
  and allowed and affirmed by the High Court under Section 482
C of the Code, the claim of the appellant for grant of maintenance
  had to be confined only to the period before her divorce; and
  that the courts below had rightly concluded that the wife was
  not entitled to maintenance as she had not been able to make
  out a case for grant of maintenance under Section 125 of the
  Code; and further that the said orders deserved affirmation as
D interim maintenance was granted during the pendency of the
  proceeding upto the date of divorce. Being of this view, the
  High Court declined to interfere with the orders of the courts
  below in exercise of inherent jurisdiction.

E       6. We have heard Mr. Fakhruddin, learned senior counsel
    appearing for the appellant, and Mr. Kaustubh Anshuraj, learned
    counsel appearing for the respondent.

        7. The two seminal issues that emanate for consideration
F are, first, whether the appellant's application for grant of
  maintenance under Section 125 of the Code is to be restricted
  to the date of divorce and, as an ancillary to it, because of filing
  of an application under Section 3 of the Act after the divorce
  for grant of mahr and return of gifts would disentitle the appellant
  to sustain the application under Section 125 of the Code; and
G second, whether regard being had to the present fact situation,
  as observed by the High Court, the consent under Section 5 of
  the Act was an imperative to maintain the application.

          8. To appreciate the central controversy, it is necessary to
H
              SHAMIM BANO v. ASRAF KHAN                     851
                   [DIPAK MISRA, J.]
sit in a time machine for apt recapitulation. In Mohd. Ahmed       A
Khan v. Shah Bano Begum and others 1, entertaining an
application under Section 125 of the Code, the learned
Magistrate had granted monthly maintenance for a particular
sum which was enhanced by the High Court in exercise of
revisional jurisdiction. The core issue before the Constitution    B
Bench was whether a Muslim divorced woman was entitled to
grant of maintenance under Section 125 of the Code.
Answering the said issue, after referring to number of texts and
principles of Mohammedan Law, the larger Bench opined that
taking the language of the statute, as one finds it, there is no   c
escape from the conclusion that a divorced Muslim wife is
entitled to apply for maintenance under Section 125 of the Code
and that mahr is not such a quantum which can ipso facto
absolve the husband of the liability under the Code, and would
not bring him under Section 127(3)(b) of the Code.                 D
     9. After the aforesaid decision was rendered, the
Parliament enacted the Act. The constitutional validity of the
said Act was assailed in Danial Latifi and another v. Union of
lndia 2 wherein the Constitution bench referred to the Statement
of Objects and Reasons of the Act, took note of the true           E
position of the ratio laid down in Shah Bane's case and after
adverting to many a facet upheld the constitutional validity of
the Act. While interpreting Sections 3 and 4 of the Act, the
Court came to hold that the intention of the Parliament is that
the divorced woman gets sufficient means of livelihood after the   F
divorce and, therefore, the word "provision" indicates that
something is provided in advance for meeting some needs.
Thereafter, the Court proceeded to state thus: - .

      "In other words, at the time of divorce the Muslim husband   G
      is required to contemplate the future needs and make
      preparatory arrangements in advance for meeting those
      needs. Reasonable and fair provision may include

1.   (1985) 2 sec 556.
2.   c2001) 1 sec 740.                                             H
    852       SUPREME COURT REPORTS                   [2014] 4 S.C.R.


A         provision for her residence, her food, her clothes, and other
          articles. The expression "within" should be read as "during"
          or "for" and this cannot be done because words cannot
          be construed contrary to their meaning as the word "within"
          would mean "on or before", "not beyond" and, therefore,
B         it was held that the Act would mean that on or before the
          expiration of the iddat period, the husband is bound to
          make and pay maintenance to the wife and if he fails to
          do so then the wife is entitled to recover it by filing an
          application before the Magistrate as provided in Section
c         3(3) but nowhere has Parliament provided that reasonable
          and fair provision and maintenance is limited only for the
          iddat period and not beyond it. It would extend to the whole
          life of the divorced wife unless she gets married for a
          second time."
D        10. In the said case the Constitution Bench observed that
    in actuality the Act has codified the rationale contained in Shah
    Bano's case. While interpreting Section 3 of the Act, it was
    observed that the said provision provides that a divorced
    woman is entitled to obtain from her former husband
E   "maintenance", "provision" and "mahr'', and to recover from his
    possession her wedding presents and dowry and authorizes
    the Magistrate to order payment or restoration of these sums
    or properties and further indicates that the husband has two
    separate and distinct obligations: (1) to make a "reasonable
F   and fair provision" for his divorced wife; and (2) to provide
    "maintenance" for her. The Court further observed that the
    emphasis of this section is not on the nature or duration of any
    such "provision" or "maintenance", but on the time by which an
    arrangement for payment of provision and maintenance should
G   be concluded, namely, "within the iddat period", and if the
    provisions are so read, the Act would exclude from liability for
    post-iddat period maintenance to a man who has already
    discharged his obligations of both "reasonable and fair
    provision" and "maintenance" by paying these amounts in a
H   lump sum to his wife, in addition to having paid his wife's mahr
           SHAMIM BANO v. ASRAF KHAN                         853
                [DIPAK MISRA, J.]
and restored her dowry as per Sections 3(1 )(c) and 3(1 )(d) of . A
the Act. Thereafter the larger Bench opined thus:-
    "30. A comparison of these provisions with Section 125
    CrPC will make it clear that requirements provided in
    Section 125 and the purpose, object and scope thereof
    being to prevent vagrancy by compelling those who can           B
    do so to support those who are unable to support
    themselves and who have a normal and legitimate claim
    to support are satisfied. If that is so, the argument of the
    petitioners that a different scheme being provided under
    the Act which is equally or more beneficial on the              C
    interpretation placed by us from the one provided under
    the Code of Criminal Procedure deprive them of their rig ht,
    loses its significance. The object and scope of Section 125
    CrPC is to prevent vagrancy by compelling those who are
    under an obligation to support those who are unable to          D
    support themselves and that object being fulfilled, we find
    it difficult to accept the contention urged on behalf of the
    petitioners.
    31. Even under the Act, the parties agree that the
    provisions of Section 125 CrPC would still be attracted         E
    and even otherwise, the Magistrate has been conferred with
    the power to make appropriate provision for maintenance
    and, therefore, what could be earlier granted by a
    Magistrate under Section 125 CrPC would now be granted
    under the very Act itself. This being the position, the Act     F
    cannot be held to be unconstitutional."
     11. Eventually the larger Bench concluded that a Muslim
husband is liable to make reasonable and fair provision for the
future of the divorced wife which obviously includes her            G
maintenance as well and such a reasonable and fair provision
extending beyond the iddat period must be made by the
husband within the iddat period in terms of Section 3 of the Act;
that liability of a Muslim husband to his divorced wife arising
under Section 3 of the Act to pay maintenance is not confined
    854      SUPREME COURT REPORTS                 [2014] 4 S.C.R.


A to the iddat period; and that a divorced Muslim woman who has
  not remarried and who is not able to maintain herself after the
  iddat period can proceed as provided under Section 4 of the
  Act against her relatives who are liable to maintain her in
  proportion to the properties which they inherit on her death
B according to Muslim law from such divorced woman including
  her children and parents and if any of the relatives being unable
  to pay maintenance, the Magistrate may direct the State Wakf
  Board established under the Act to pay such maintenance.
        12. At this Juncture, it is profitable to refer to another
C Constitution Bench decision in Khatoon Nisa v. State of U.P.
  and Ors., 3 wherein question arose whether a Magistrate is
  entitled to invoke his jurisdiction under Section 125 of the Code
  to grant maintenance in favour of a divorced Muslim woman.
  Dealing with the said issue the Court ruled that subsequent to
o the enactment of the Act as it was considered that the
  jurisdiction of the Magistrate under Section 125 of the Code
  can be invoked only when the conditions precedent mentioned
  in Section 5 of the Act are complied with. The Court noticed
  that in the said case the Magistrate had returned a finding that
E there having been no divorce in the eye of law, he had the
  jurisdiction to grant maintenance under Section 125 of the
  Code. The said finding of the magistrate had been upheld by
  the High Court. The Constitution Bench, in that context, ruled
  thus:
F         "The validity of the provisions of the Act was for
          consideration before the constitution bench in the case of
          Danial Latifi and Anr. v. Union of India. In the said case
          by reading down the provisions of the Act, the validity of
          the Act has been upheld and it has been observed that
G         under the Act itself when parties agree, the provisions of
          Section 125 Cr.P.C. could be invoked as contained in
          Section 5 of the Act and even otherwise, the magistrate
          under the Act has the power to grant maintenance in favour
          of a divorced woman, and the parameters and
H 3. 2002 (6) SCALE 165.
            SHAMIM BANO v. ASRAF KHAN                       855
                 [DIPAK MISRA, J.]

    considerations are the same as those in Section 125            A
    Cr.P.C .. It is undoubtedly true that in the case in hand,
    Section 5 of the Act has not been invoked. Necessarily,
    therefore, the rnagistrate has exercised his jurisdiction
    under Section 125 Cr.P.C. But, since the magistrate
    retains the power of granting maintenance in view of the       B
    constitution bench decision in Danial Latifi's case (supra)
    under the Act and since the parameters for exercise of that
    power are the same as those contained in Section 125
    Cr.P.C., we see no ground to interfere with the orders of
    the magistrate granting maintenance in favour of a divorced    c
    Muslim woman."
      13. The aforesaid principle clearly lays down that even an
application has been filed under the provisions of the Act, the
Magistrate under the Act has the power to grant maintenance
in favour of a divorced Muslim woman and the parameters and        D
the considerations are the same as stipulated in Section 125
of the Code. We may note that while taking note of the factual
score to the effect that the plea of divorce was not accepted
by the Magistrate which was upheld by the High Court, the
Constitution Bench opined that as the Magistrate could exercise    E
power under Section 125 of the Code for grant of maintenance
in favour of a divorced Muslim woman under the Act, the order
did not warrant any interference. Thus, the emphasis was laid
on the retention of the power by the Magistrate under Section
125 of the Code and the effect of ultimate consequence.            F
     14. Slightly recently, in Shabana Bano v. lmran Khan 4, a
two-Judge Bench, placing reliance on Danial Latifi (supra), has
ruled that: -
    "The appellant's petition under Section 125 CrPC would         G
    be maintainable before the Family Court as long as the
    appellant does not remarry. The amount of maintenance
    to be awarded under Section 125 CrPC cannot be
    restricted for the iddat period only."
4. (2010) 1 sec 666.                                               H
    856      SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A       Though the aforesaid decision was rendered interpreting
    Section 7 of the Family Courts Act, 1984, yet the principle
    stated therein would be applicable, for the same is in
    consonance with the principle stated by the Constitution Bench
    in Khatoon Nisa (supra).
B
          15. Coming to the case at hand, it is found that the High
    Court has held that as the appellant had already taken recourse
    to Section 3 of the Act after divorce took place and obtained
    relief which has been upheld by the High Court, the application
    for grant of maintenance under Section 125 of the Code would
C   only be maintainable till she was divorced. It may be noted here
    that during the pendency of her application under Section 125
    of the Code the divorce took place. The wife preferred an
    application under Section 3 of the Act for grant of mahr and
    return of articles. The learned Magistrate, as is seen, directed
D   for return of the articles, payment of quantum of mahr and also
    thought it appropriate to grant maintenance for the lddat period.
    Thus, in effect, no maintenance had been granted to the wife
    beyond the lddat period by the learned Magistrate as the
    petition was different. We are disposed to think so as the said
E   application, which has been brought on record, was not filed
    for grant of maintenance. That apart, the authoritative
    interpretation in Danial Latifi (supra) was not available. In any
    case, it would be travesty of justice if the appellant would be
    made remediless. Her application under Section 125 of the
F   Code was continuing. The husband contested the same on
    merits without raising the plea of absence of consent. Even if
    an application under Section 3 of the Act for grant of
    maintenance was filed, the parameters of Section 125 of the
    Codewould have been made applicable. Quite apart from that,
G   the application for grant of maintenance was filed prior to the
    date of divorce and hearing of the application continued.
      16. Another aspect which has to be kept uppermost in
  mind is that when the marriage breaks up, a woman suffers
  from emotional fractures, fragmentation of sentiments, loss of
H economic and social security and, in certain cases, inadequate
            SHAMIM SANO v. ASRAF KHAN                         857 .
                 [DIPAK MISRA, J.]
requisites for survival. A marriage is fundamentally a unique         A
bond between two parties. When it perishes like a mushroom,
the dignity of the female fame gets corroded. It is the law's duty
to recompense, and the primary obligation is that of the
husband. Needless to emphasise, the entitlement and the
necessitous provisions have to be made in accordance with             B
the parameters of law.
     17. Under these circumstances, regard being had to the
dictum in Khatoon Nisa's case, seeking of option would not
make any difference. The High Court is not correct in opining
that when the appellant-wife filed application under Section 3        C
of the Act, she exercised her option. As the Magistrate still
retains the power of granting maintenance under Section 125
of the Code to a divorced Muslim woman and the proceeding
was continuing without any objection and the ultimate result
would be the same, there was no justification on the part of the      D
High Court to hold that the proceeding after the divorce took
place was not maintainable.
     18. It is noticed that the High Court has been principally
guided by the issue of maintainability and affirmed the findings.     E
Ordinarily, we would have thought of remanding the matter to
the High Court for reconsideration from all spectrums but we
think it appropriate that the matter should be heard and dealt
with by the Magistrate so that parties can lead further evidence.
Be it clarified, if, in the meantime, the appellant has remarried,
the same has to be taken into consideration, as has been              F
stated in the aforestated authorities for grant of maintenance.
It would be open to the appellant-wife to file a fresh application
for grant of interim maintenance, if so advised. Be it clarified,
we have not expressed anything on the merits of the case.
                                                                      G
    19. In the result, the appeal is allowed and the impugned
orders are set aside and the matter is remitted to the learned
Magistrate for re-adjudication of the controversy in question
keeping in view the principles stated hereinabove.
R.P.                                            Appeal allowed.       H