Ramesh Kumar vs State Of U.P. & Another
2015 Latest Caselaw 2274 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 14
 

 
Case :- CRIMINAL REVISION No. - 3946 of 2011
 

 
Revisionist :- Ramesh Kumar
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- R.S. Kushwaha,Arvind Srivastava
 
Counsel for Opposite Party :- Govt. Advocate,Rajesh Kumar Dubey,Vijya Shyam Bhaskar
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

Instant Criminal Revision has been filed against the exparte judgment and order dated 30.9.2004 passed by the Additional civil Judge (Senior Division) II/ A.C.J.M. Court No. 8, Bhadohi, Gyanpur, in maintenance case No. 322 of 2004, Smt. Anupam Bharti Vs. Ramesh Kumar, under Section 125 Cr.P.C. P.S. Aurai, District Sant Ravidas Nagar (Bhadohi) granting Rs. 500/- per month as maintenance to the wife of revisionist.

Heard Sri R. S. Kushwaha, learned counsel for the revisionist, and learned AGA for the State and perused the record.

The facts necessary for a proper and just decision of this revision are that the wife of the revisionist filed a maintenance case No. 322 of 2004, Smt. Anupam Bharti Vs. Ramesh Kumar, under section 125 Cr.P.C. against the revisionist, which was decided vide exparte order dated 30.9.2004 and the wife was awarded maintenance of Rs. 500/- per month from the date of judgment.

Being dissatisfied by the meager amount of maintenance awarded by the aforesaid exparte order, the wife preferred a revision before the Sessions Judge, which was decided by the order dated 28.2.2007 after hearing both the parties and the amount of maintenance was enhanced from Rs. 500/- per month to Rs. 3500/- per month considering the fact that the husband/ revisionist was a government servant serving in PAC.

Earlier to this order the husband had moved an application on 6.3.2006 under section 126(2) Cr.P.C. for setting aside the exparte order dated 30.9.2004, which was pending in the court of Additional Civil Judge (Sr. Div.) I, Gyanpur, Bhadohi (copy whereof has been filed by the revisionist as Annexure no. 2). Learned Civil Judge decided this application on 14.9.2007 in the absence of wife, set aside the exparte order dated 30.9.2004 and restored the maintenance case to its original number vide order dated 14.9.2007.

The wife moved an application for setting aside the aforesaid exparte order dated 14.9.2007. That application was rejected by learned Additional Civil Judge (Sr. Div.) vide order dated 22.2.2008.

Being aggrieved by both the aforesaid orders dated 14.9.2007 and 22.2.2008, the wife moved this court by means of Application under section 482 Cr.P.C. No. 24957 of 2008 praying to quash the orders dated 14.9.2007 and 22.2.2008, which was decided on 23.8.2010 by the following order:-

"Hon'ble Ashok Kumar Roopanwal,J.

This application u/s 482 Cr.P.C. has been moved for setting aside the orders dated 14.9.2007 and 22.2.2008 passed by the A.C.J.M. Bhadohi, in Case No. 322 of 2004, u/s 125 Cr.P.C. pending between the parties.

It appears from the record that an application u/s 125 Cr.P.C. was moved by the applicant before the court below. That application was exparte allowed by the Magistrate vide order dated 30.9.2004 and a maintenance of Rs. 500/- per month was granted. Being dissatisfied with the order the applicant filed a revision. That revision was decided by the Sessions Judge on 28.2.2007. An application u/s 126 Cr.P.C. was moved by O.P. No. 2. That application was ultimately allowed on 14.9.2007 while the revision had already been decided by the Sessions Court on 28.2.2007 i.e. prior to the order passed by the Magistrate u/s 126 Cr.P.C. It is pertinent to mention here that in the revision O.P. No. 2 also advanced his arguments and his arguments were not conceded to by the Sessions Court. Thereafter an application was moved by the applicant for setting aside the order dated 14.9.2007 whereby the exparte order dated 30.9.2004 was set aside by the Magistrate. That application was rejected by the Magistrate vide order dated 22.2.2008 and these two orders dated 14.9.2007 and 22.2.2008 are under challenge here.

Heard Mr. Gopesh Kumar Gupta, learned counsel for the applicant, learned AGA for the State, Mr. R. S. Kushwaha, learned counsel for O.P. No. 2 and perused the record.

It has been argued by Mr. Gupta that once the revision was filed against the original order dated 30.9.2004 passed u/s 125 Cr.P.C. and both the parties appeared in the revision and the revision was decided prior to the order dated 14.9.2007, there was no propriety at all for the Magistrate to sit over the order of the revisional court and to allow the application u/s 126 Cr.P.C.

To the above, it has been argued by Mr. Kushwaha that it was well within the power of the Magistrate to decide the application u/s 126 Cr.P.C.

A look at the record would reveal that against the exparte order passed against O.P. No. 2, Ramesh Kumar, a revision was filed before the Sessions Judge in which both the parties appeared and argued the case. As the revision was ultimately decided to the effect that the maintenance allowance shall be enhanced from Rs. 500/- to Rs. 3500/- per month, there was no propriety for the Magistrate to entertain the application u/s 126 Cr.P.C. for setting aside the exparte order. This was nothing but an abuse of the powers by the Magistrate in entertaining the application u/s 126 Cr.P.C. and then to allow it so as to sit over the order of the revisional court. Once the exparte order was challenged in the higher court and ultimately a decision was given, there could be no powers in the Magistrate to exercise the jurisdiction vested in him u/s 126 Cr.P.C. The Magistrate was perfectly wrong in allowing the application moved by O.P. No. 2 for setting aside the exparte order in exercise of the powers u/s 126 Cr.P.C. vide order dated 14.9.2007. Therefore, in my opinion, the order dated 14.9.2007 is bad and is liable to be set aside.

In view of the above, once the order dated 14.9.2007 was a wrong order, it should have been taken back by the Magistrate in all propriety. In this regard the application moved by the applicant should not have been rejected vide order dated 22.2.2008. The rejection of the application of the applicant for recalling the order dated 14.9.2007 meant that the Magistrate was superseding the order of the revisional court. It is not proper in the judicial hierarchy. Therefore, the order dated 22.2.2008 is patently bad and is liable to be set aside.

The application is allowed and the orders dated 14.9.2007 and 22.2.2008 are set aside. In the circumstances of the case it is ordered that the order of the revisional court is allowed to be maintained till any order is passed by the High Court either this way or that way.

Order Date :- 23.8.2010 "

The husband -revisionist had also moved this court by means of Criminal Revision No. 848 of 2007, Ramesh Kumar Vs. State of U.P. and others, challenging the order dated 28.2.2007 passed by the Sessions Judge, Bhadohi, enhancing the maintenance amount from Rs. 500/- to Rs. 3500/-, which was dismissed on 23.8.2010 by this court by the following order:-

"Hon'ble Ashok Kumar Roopanwal,J.

This criminal revision has been filed against the order dated 28.2.2007 passed by the Sessions Judge, Bhadohi at Gyanpur, in Criminal Revision No. 187 of 2004, Smt. Anupam Bharti Vs. Ramesh Kumar, whereby the Sessions Judge enhanced the maintenance allowance granted to O.P. No. 2 from Rs. 500/- to Rs. 3500/- per month.

It appears from the record that the proceedings u/s 125 Cr.P.C. were initiated by O.P. No. 2 against the revisionist. Those proceedings were culminated in exparte manner vide order dated 30.9.2004 and the maintenance allowance of Rs. 500/- per month was granted to O.P. No. 2. Against that order O.P. No. 2 filed a revision before the Sessions Judge for enhancement of the maintenance allowance. No revision was filed by the revisionist Ramesh Kumar against the order dated 30.4.2004. The Sessions Judge after hearing both the parties found that the maintenance granted by the Magistrate to O.P. No. 2 was on a lower side and enhanced the maintenance allowance from Rs. 500/- to Rs. 3500/- per month. Against this order the present revision has been filed.

Heard Mr. R. S. Kushwaha, learned counsel for the revisionist, learned AGA for the State, Mr. Gopesh Kumar Gupta, learned counsel for O.P. No. 2 and perused the record.

It has been argued by Mr. Kushwaha that his client Ramesh Kumar was never afforded an opportunity to contest the case, therefore, the order dated 28.2.2007 passed by the revisional court is improper and is liable to be set aside.

A look at the order passed by the revisional court would reveal that from the side of the revisionist Ramesh Kumar, Mr. Harivansh Pandey, Advocate, appeared and argued the matter. He did not say anything about the validity or invalidity of the exparte order dated 30.9.2004 passed by the Magistrate and therefore, the exparte order had attained finality. It is very much evident from the order of the Sessions Judge dated 28.2.2007 that the learned counsel for the revisionist, Mr. Pandey, only supported the quantum of maintenance awarded by the trial court and the revisional court while disposing of the revision wrote in clear terms that he was considering the revision only with regard to the amount of maintenance. In the previous paragraph it was written by the court below that nothing was said about the validity or invalidity of the exparte order dated 30.9.2004 passed by the Magistrate. In such view of the matter, I am not prepared to accept the argument of Mr. Kushwaha that the court below did not allow the revisionist to assail the exparte order on merits. When there was an opportunity with the revisionist to assail the exparte order dated 30.9.2004 on merits, which he did not avail and thus, there is no propriety for Mr. Kushwaha to address this court on this point in this revision.

So far as the enhancement of the quantum of maintenance allowance is concerned, in that regard it has come in the order of the Sessions Judge that as the lady wanted to pursue her studies and the revisionist is in service of P.A.C. I do feel that the revisional court was perfectly justified in granting a maintenance of Rs. 3500/- per month instead of Rs. 500/- per month as ordered by the Magistrate. I do not find any illegality or impropriety in the order impugned in this revision and thus, the revision is liable to be dismissed.

The revision is dismissed and the order of the Sessions Judge dated 28.2.2007 is maintained.

Order Date :- 23.8.2010 "

The copies of both the aforesaid orders of this court have been filed by the revisionist as Annexure nos. A-1 and A-2.

A careful perusal of both the orders of this court shows that this court in the order passed in Criminal Revision No. 848 of 2007 has clearly observed that the exparte order dated 30.9.2004 had attained finality.

Now the husband by means of the instant revision has once again challenged the aforesaid order dated 30.9.2004, which order has already attained finality, in view of this court.

After having several rounds of litigation, the husband revisionist is still not putting an end to the matter and is challenging the same order, which has attained finality several years ago.

In view of the above facts and circumstances the instant revision is nothing but a flagrant abuse of process of the court and the law.

The revision is accordingly dismissed.

The office is directed to send back the lower court's record to the court concerned immediately for proceeding further in the matter in wake of all the orders passed by this court.

Order Date :- 11.9.2015

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