Pushpendra Singh vs State Of U.P. And Another
2023 Latest Caselaw 12838 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 49
 

 
Case :- CRIMINAL REVISION No. - 952 of 2023
 

 
Revisionist :- Pushpendra Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Awadhesh Kumar Malviya
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. A.K. Malviya, the learned counsel for revisionist, the learned A.G.A. for State and Mr. Gaurav Srivastava, the learned counsel representing opposite party 2 who has put in appearance by filing his Vakalatnama in Court today, which is taken on record.

Challenge in this criminal revision is to the order dated 22.11.2022 passed by Additional Principal Judge, Family Court, Pilibhit in Misc. Case No. 256 of 2014 (Pushpendra Singh Vs. Dr. Rashmeet Kaur), under Section 126(2) Cr.P.C., Police Station-Kotwali, District-Pilibhit whereby the recall application dated 01.02.2022 filed by revisionist in terms of Section 126(2) Cr.P.C. seeking recall of the order dated 19.10.2012 whereby the application under Section 125 Cr.P.C. filed by complainant/opposite party 2 was allowed ex-parte against revisionist has been dismissed.

Record shows that opposite party 2, Rashmeet Kaur, who is the legally wedded wife of revisionist, was neglected by the revisionist. Accordingly, she initiated proceedings under Section 125 Cr.P.C. claiming maintenance which came to be registered as Case No. 4422 of 2011 (Smt. Rashmeet Kaur Vs. Pushpendra Singh) under Section 125 Cr.P.C., Police Station-Kotwali, District-Pilibhit.

Record shows that summons were issued to revisionist. However, in spite of service of summons, revisionist did not appear before court below. As such, court below vide order dated 16.11.20211 directed that proceedings shall proceed ex-parte against revisionist. Thereafter revisionist appeared and filed an application dated 25.02.2012 seeking recall of the order dated 16.11.2011. Court below taking an equitable view of the matter recalled the order dated 16.11.20211. However, the revisionist filed his written statement/objections dated 28.03.2013 belatedly, which was accepted on cost of Rs. 100/-. Revisionist continued to participate in the proceedings but took various adjournment. However, for reasons best known to the revisionist, he absconded from the proceedings of aforementioned criminal case. Resultantly, court concerned passed an order dated 25.09.2012 to that effect that the matter shall proceed ex-parte against revisionist. Feeling aggrieved by above order, revisionist filed a recall application dated 19.10.2012. The said application came to be allowed by court below vide order dated 01.03.2013. However, again the revisionist absconded from the proceedings of aforementioned case. Ultimately, above-mentioned case came to be allowed ex-parte against revisionist vide order dated 19.10.2012.

Feeling aggrieved by the amount of maintenance awarded by the trial court, opposite party 2 filed a criminal revision which was registered as Criminal Revision No. 13 of 2013 (Smt. Rashmeet Kaur Vs. Pushpendra Singh). Aforesaid criminal revision came to be allowed by revisional court vide order dated 28.10.2013. The amount of maintenance payable by revisionist to opposite party 2 was enhanced to Rs. 8,000/- per month. The arrears were directed to be deposited in three equal installments within a period of 1 year.

Against above order dated 28.10.2013, revisionist filed Criminal Revision No. 229 of 2014 (Pushpendra Singh Vs. State of U.P. and Another) before this Court. An interim order dated 29.01.2014 was passed by this Court in aforementioned criminal revision. For ready reference, the same is re-produced hereinunder:-

"Heard learned counsel for the revisionist as well as learned AGA.

Learned counsel for the revisionist has mainly contended that vide order dated 19.10.2012 the learned ACJM, Court No.2, Pilibhit has awarded Rs.4000/- per month as maintenance allowance in favour of opposite party no.2 from the date of application whereas the revision filed by the said opposite party no.2 has been allowed by the learned lower revisonnal court vide impugned order dated 28.10.2013 enhancing the said amount of Rs.4000/- to Rs.8000/- per month inspite of the fact that the said order was ex parte one and against which a restoration application filed by the revisionist was pending. It is also submitted that the said amount of Rs.8000/- is too excessive and has been passed without properly appraising the evidence on record.

Issue notice to opposite party no.2. returnable within four weeks to enable her to file counter affidavit. Learned AGA may also file counter affidavit within the said period. The revisionist shall have two weeks thereafter to file rejoinder affidavit, if any.

List after six weeks before appropriate Bench.

Till the next date of listing, the operation of the order dated 28.10.2013 passed by Addl.Sessions Judge, Court No.2, Pilibhit in Criminal Revision No.13 of 2013, Smt.Rashmit Kaur Vs. Pushpinder Singh shall be kept in abeyance provided the revisionist pays Rs.4000/- per month regularly as maintenance allowance to opposite party no..2 as awarded by the learned Magistrate upto 10th of each calender month from February, 2014 onwards and pays the arrears in three equal monthly instalments. In case of default, the stay order shall automatically stand vacated.

Order Date :- 29.1.2014"

Subsequently, revisionist filed a recall application dated 01.02.2022 in terms of Section 126(2) Cr.P.C. seeking recall of the ex-parte order dated 19.10.2012. Since the recall application was filed beyond the period of limitation, accordingly, an application under Section 5 of the Limitation Act seeking condonation of delay in filing the recall application was also filed. The delay condonation application came to be allowed by court below vide order dated 04.01.2022. Ultimately, court below by means of order impugned in present criminal revision i.e. order dated 22.11.2022 dismissed the recall application filed by revisionist.

Thus feeling aggrieved by the order dated 22.11.2022, revisionist has now approached this Court by means of present criminal revision.

Mr. A.K. Malviya, the learned counsel for revisionist submits that order impugned in present criminal revision is manifestly illegal and arbitrary. Consequently, the same is liable to be quashed by this Court. He has drawn a parallel in between the orders dated 04.01.2022 and 22.11.2022 and on basis thereof, he submits that findings returned by court below in the order impugned dated 22.11.2022 are contrary to the findings previously recorded in the order dated 04.01.2022. He, therefore, contends that in view of above, the impugned order cannot be sustained and therefore, liable to be quashed by this Court.

He further submits that it was pleaded by the revisionist before court below that the pairvi of the case concerned was being done by the father of the revisionist but since he fell ill, he could not attend the proceedings. As such, there was no deliberate negligence on laches on the part of revisionist in not attending the proccedings.

On the cumulative strength of above, he submits that order impugned in liable to be rejected. Moreover, a judgement after hearing the parties is far for better than the judgment ex-parte.

Per contra, the learned A.G.A. and Mr. Gaurav Srivastava, the learned counsel representing complainant-opposite party 2 have opposed the present criminal revision. They submit that the parameters for condoning the delay are altogether different from the parameters for recall of an order. Referring to the judgment of Supreme Court in G. Ramegowda, Major and Others Vs. Special Land Acquisition Officer, Banglore AIR 1988 SC 897, they contend that no illegality has been committed by court below in condoning the delay in filing the recall/restoration application.

They submit that the order of the trial court dated 19.10.2012 has merged in the order of revisional court dated 28.10.2013. In view of above, no recall of order dated 19.10.2012 could have been prayed by the revisionist. Further more, the veracity of the order dated 28.10.2013 has been challenged by revisionist himself.

According to the learned A.G.A. and the learned counsel representing opposite party 2, it is an undisputed fact that the revisionist had put in appearance in the proceedings under Section 125 Cr.P.C. He had filed his written statement/objections to the same. Application for adjournment/stay of the proceedings were repeatedly filed by the revisionist. However, for the reasons best known to him, he himself absconded from the proceedings. In view of above, it cannot be said that no notice had not been served upon revisionist. Revisionist is guilty of his own conduct which remains unexplained up to this stage. On the above premise, they submits that no jurisdictional error has been committed by court below in passing the order impugned.

It is next contended that the plea raised by revisionist before court below for explaining his absence was not evidenced by any document. It is well settled that a plea of fact if raised but not accompanied by the evidence in that regard the same is liable to be ignored by Court. In view of above, no illegality has been committed by court below in disbelieving the cause shown by revisionist for recalling the order dated 19.10.2012.

On the cumulative strength of above, they submit that no question of law or fact is involved in present criminal revision. The same is therefore, liable to be dismissed.

When confronted with above, the learned counsel for revisionist could not overcome the same.

Having heard, the learned counsel for revisionist, the learned A.G.A. for State, Mr. Gaurav Srivastava, the learned counsel representing complainant-opposite party 2 and upon perusal of record, this Court finds that the findings returned by court below in the order impugned are cogent findings, which could not be dislodged by the learned counsel for revisionist as being illegal, perverse or erroneous. It is well settled that if the findings cannot be dislodged, the conclusion can be altered. In view of above, no jurisdictional error has been committed by court below in passing the order impugned. This Court has no hesitation to conclude that revisionist is playing hide and seek with the Court.

As a result, present criminal revision fails and is liable to be dismissed.

It is accordingly dismissed.

Order Date :- 26.4.2023

Vinay