HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 49 Case :- CRIMINAL REVISION No. - 3654 of 2017 Revisionist :- Kalicharan Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Anil Kumar Maurya Counsel for Opposite Party :- G.A. Hon'ble Mrs. Vijay Lakshmi,J.
The present revision is preferred against the judgment and order dated 11.8.2017 passed by the learned Principal Judge, Family Court, Firozabad in Criminal Misc. Case No. 05 of 2017 (Kalicharan Vs. Smt. Vijay) under Section 126(2) Cr.P.C., Police Station Rasoolpur, District Firozabad whereby the restoration application under Section 126(2) Cr.P.C. filed by the revisionist/husband, has been rejected.
Heard learned counsel for the revisionist/husband and learned A.G.A. on the point of admission. Perused the record.
Learned counsel for the revisionist/husband has challenged the legality and correctness of the aforesaid impugned order dated 11.08.2018 on the ground that the learned court below, while passing the impugned order, has ignored the principles of natural justice that the revisionist/husband was not given opportunity of hearing before the court below and has illegally rejected the application of the revisionist moved under Section 126(2) Cr.P.C. for recalling of ex-parte order. It has also been contended that the court below did not consider the fact that the opposite party no. 2 is not the legally wedded wife of the revisionist and has rejected the application without recording a clear finding on this fact.
Learned A.G.A. has opposed the revision.
Considered the rival submissions of the parties.
Some background facts in brief are that an application under Section 125 Cr.P.C. was filed by opposite party no. 2/wife on 20.05.2005 claiming maintenance from her husband (revisionist) for herself and her daughter, which was decided ex-parte against the revisionist on 30.06.2005. The revisionist moved an application under Section 126(2) Cr.P.C. for recall of the ex-parte order which was allowed vide order dated 7.9.2006, Accordingly the ex-parte judgment dated 30.6.2005 was set aside and the application under Section 125 Cr.P.C. was restored to its original number. However, on 21.5.2007 the case again proceeded ex-parte against the revisionist/husband due to his absence. Once again, opportunity of hearing was given to the revisionist and on 03.07.2007 the ex-parte order was recalled. On 23.8.2007 the revisionist/husband filed his written statement. However, his testimony could be concluded on 5.3.2010. Thereafter, the revisionist for the 3rtd time absented himself from the court. As a result his evidence was closed and the date was fixed for hearing arguments by the court below. On 21.04.2010 arguments were heard and thereafter judgment was delivered on 5.5.2010.
After expiry of about seven years, the revisionist moved an application under Section 126(2) Cr.P.C. on 9.1.2017 with prayer to set aside the judgment dated 5.5.2010 that too without any explanation for such inordinate delay. That application was rejected by the court below by the impugned order dated 11.8.2017 against which the revisionist has filed the present revision.
In view of the aforesaid peculiar circumstances of this case, this revision is being finally decided a the admission stage itself.
Section 126(2) Cr.P.C. which is relevant in this case provides as under :
"126 (2) - All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proceed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons- cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper."
Thus, a bare perusal of the aforesaid provision clearly shows that an ex-parte order may be set aside, if an application for such purpose has been made within three months from the date of ex-parte judgment that too when some good cause has been shown by the applicant for such delay.
The court below while rejecting the application moved by the revisionist/husband has clearly observed that neither any explanation has been given by the applicant for causing a delay of six years nor it has been shown by him as to how he came to know about the ex-parte judgment after six years. The court below has also observed that the applicant has stated about compromise between him and his wife. If the applicant/opposite party no. 2 was not his wife, what was the occasion for him to enter into a compromise with her ? On the aforesaid grounds the court below after recording a clear finding, that the revisionist-applicant has failed to show any good cause on the ground of which the ex-parte order should be recalled, rejected his application moved under Section 126(2) Cr.P.C.
The impugned order has been passed after a detailed discussion of all the facts and circumstances of the case requiring no interference by this Court.
The revision lacks merit and is liable to be dismissed at the admission stage itself and is accordingly dismissed.
Order Date :- 14.11.2017 S.B.