Kapil Suneja vs State Of U.P And 2 Others
2023 Latest Caselaw 9724 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 09.02.2023 
 
Delivered on 04.04.2023
 

 
Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 38571 of 2022
 
Applicant :- Kapil Suneja
 
Opposite Party :- State Of U.P And 2 Others
 
Counsel for Applicant :- Fatma Khatoon
 
Counsel for Opposite Party :- G.A.,Sushil Kumar Pandey
 

 
Hon'ble Umesh Chandra Sharma,J.

1. Heard Ms. Fatma Khatoon, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned AGA for the State, Sri Sushil Kumar Pandey, learned counsel for opposite party no.2 and perused the record.

2. This petition has been instituted under Section 482 CrPC to quash the order dated 13.10.2022 passed by the Additional Principal Judge, Family Court, Court No.5, Ghaziabad in Case No.163 of 2021 (Kapil Suneuja Vs. Smt. Minakshi), under Section 126(2) CrPC, Police Station Sahibabad, District Ghaziabad.

3. In brief, facts of the case are that according to the applicant opposite party no.2, Minakshi filed a petition under Section 125 CrPC on false and fabricated statements and got ex parte order without service of summons/notice upon the applicant. Despite the knowledge of his original and permanent address his former company's address was deliberately presented in the court so he could not know about the proceedings. In former company where the applicant was working there was no provision for conveying or distributing postal and Currier unless the taker knows about it in advance.

4. The Family Court passed an ex parte judgment on 09.12.2020 and ordered to pay Rs.35,000/- (Rs.15,000/- + Rs.20,000/-) for monthly maintenance to the opposite party no.2 and her minor son (opposite party no.3). Former company of the applicant had relieved him on 29.05.2020 but opposite party deliberately did not disclose this information and the court passed one sided decision. Applicant moved an application under Section 126(2) CrPC with Section 5 of the Limitation Act that opposite party no.2 was a highly educated lady and was doing a job while the applicant was responsible for the joint family of his parents and siblings. Opposite party no.2 started creating trouble to break the relations with his family members and to live separately. In order to that she was living separately with the applicant since marriage. Opposite party no.2 and the applicant were the class fellows. Opposite party no.2 is working in Delhi St. Lawrence Public School for several years and gets salary worth Rs.50,000/- and half of the fee amount has been waived in respect of her son Raghav. The flat in which opposite party nos.2 and 3 are residing is in the name of the applicant for which he used to deposit Rs.11,000/- EMI to Union Bank of India. He is also bearing the maintenance cost of the flat and all the amenities and facilities are there while the applicant is living in a rented house and is performing his duties towards his mother and younger sister. Opposite party no.2 is quarrelsome lady who used to hurt him and herself in a fit of anger. She also pressurized the applicant to get the share from his family. The applicant has also filed a petition for divorce against opposite party no.2. The applicant is ready to keep his son Raghav with him. The trial court has issued a recovery warrant. Therefore, this application be allowed.

5. All the relevant papers have been annexed with the affidavit filed in support of this application. The applicant has filed a copy of the ex parte order by way of a supplementary affidavit on 03.01.2023.

6. On behalf of opposite party nos.2 and 3 a counter affidavit has been filed in which they have denied the allegations and have deposed that virtually the notice was received by the applicant but he deliberately did not appear and thereafter the impugned order was passed. After a long gap the applicant had moved an application under Section 126(2) CrPC only to linger on the matter and to avoid the payment. Applicant and his family members always tortured opposite party no.2 mentally and physically for additional demand of dowry though opposite party no.2 is an educated lady but unemployed. Since after judgment only Rs.50,000/- have been given by the applicant to her. Actually the applicant is a forged person and without getting decree of divorce he has solemnized another marriage with another lady named Sonam Suneja and used to live with her which is clear from the police report. Opposite party no.2 was ousted from her matrimonial house forcibly for the sake of dowry. Applicant never tried to meet his son Raghav and has made false averments in this regard.

7. As per order of the court till now Rs.13,00,000/- as maintenance allowance is due as arrears against the applicant and out of that only Rs.50,000/- had been paid by him in December, 2022 when several recovery warrants and process under Section 82 CrPC had been issued. The applicant is a criminal minded person and always used to threat opposite party no.2.

8. Opposite parties have filed some annexures. Annexure-CA-1 is the tenant verification form wherein Sonam and Ritika alongwith son Raghav have been shown as family members of the applicant. Annexure-CA-2 is the letter by the Additional Principal Judge, Family Court, Court No.5, Ghaziabad to Director of the company where the applicant was working. With this proforma no.19 and copy of the process under Section 82 CrPC and letter to Additional DGP have been annexed.

9. The applicant has filed rejoinder affidavit and has stated that no notice was issued to him and at that time he was working in another company. He is ready to pay maintenance and has also paid Rs.50,000/- to opposite party no.2 on 16.12.2022. He has annexed receipt of payment of Rs.50,000/- as maintenance allowance.

10. From perusal of the ex parte judgment under Section 125 CrPC it transpires that the trial court has accepted the service sent through registered post and when no written statement was filed it proceeded ex parte. However, it has not been mentioned that on which date registered summon was sent on which address and as to whether the applicant was serving there or not. The applicant has stated on oath that the notice was sent to his previous work place even knowing the current work place and the permanent address. The notice sent to the previous work place was not conveyed and received by him.

11. Learned counsel for the applicant argued that before proceeding ex parte it was duty of the trial court to ensure as to whether the registered notice had been delivered to the applicant or not. In this regard an information could also be obtained from the concerned company. A track record could also be obtained. After getting mobile and whatsapp number of the applicant, a notice could have also been sent to the applicant and personal service or service through agent was necessary before proceeding ex parte against the applicant.

12. It is basic principle of law and natural justice that opportunity of hearing must be provided to the parties and it is prime duty of the court to settle the dispute between the parties finally. It is also settled principles of law that power conferred under Section 5 of the Limitation Act should be applied liberally.

13. The impugned order dated 13.10.2022 is on record in which the trial court has concluded that service through registered post was sufficiently served upon the applicant herein on the basis of track report. The applicant had served in HCL Technology Limited upto January, 2020 and on 11.10.2019 and 14.10.2019 registered summon was delivered where he was working. Therefore, the trial court presumed that the registered summon/notice would have been received by the applicant and on the basis of above, the trial court rejected the delay condonation application and the restoration application as well.

14. According to this Court before proceeding ex parte and before rejecting the restoration application, a report was required from the company as to whether the aforesaid summon had been delivered to the applicant or not.

15. As has already been said that an application under Section 125 CrPC should be decided on merit and for that the trial court was free to impose some penalty at least while dealing with the restoration application. Under Section 125 CrPC a wife is entitled to maintenance from her husband only if she was unable to maintain herself and her legitimate or illegitimate minor child were also not able to maintain itself or if the child has attained the age of majority but by reason of any physical or mental abnormality or injury he was unable to maintain itself.

16. Under Section 125(3) CrPC if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, the wife would not be entitled to get the maintenance allowance if she has been unable to satisfy the court that there is just ground for refusal of such offer.

17. Section 125(4) CrPC is important according to which if a wife is living in adultery, or if without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent, the wife shall not be entitled to receive any allowance for maintenance.

18. Apparently an ex parte order is existing and the applicant had not been provided opportunity to controvert the version of his wife. If he would not be permitted to contest the application under Section 125 CrPC it would not be properly judged as to whether the wife and the child were actually unable to maintain themselves or not. The applicant also lost his opportunity to adduce evidence in respect of the grounds mentioned under Section 125(4) CrPC which are the condition precedent before allowing the application. Thus, it can be said that on the back of service of registered notice, the applicant is losing his right to defend the case against the wife. The above aspects have been over sighted by the trial court. On the basis of above discussion this Court is of the view that the impugned order is bad in law and this application is liable to be allowed.

19. Accordingly, this application under Section 482 CrPC is allowed.

20. The order dated 13.10.2022 passed by the Additional Principal Judge, Family Court, Court No.5, Ghaziabad is set aside.

21. Applicant's application under Section 5 of the Limitation Act is allowed and the delay is condoned. Thereafter the restoration application is allowed. The Additional Principal Judge, Family Court, Court No.5, Ghaziabad is directed to decide the application under Section 125 CrPC afresh after affording opportunity of hearing to the applicant within six months positively provided the applicant is depositing Rs.25,000/- per month from the date of institution of the application under Section 125 CrPC till the date of decision as interim maintenance failing which this order would be automatically come to an end.

Order Date :- 4.4.2023

Shahroz

(Umesh Chandra Sharma,J.)