Allahabad High Court
Jaggi Dutt Urf Yagya Dutt vs State Of U.P. And Ors. on 17 August, 2023
Bench: Jyotsna Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:54596
Court No. - 29
Case :- CRIMINAL REVISION No. - 586 of 2017
Revisionist :- Jaggi Dutt Urf Yagya Dutt
Opposite Party :- State Of U.P. And Ors.
Counsel for Revisionist :- Uma Kant
Counsel for Opposite Party :- Govt. Advocate,Ratnesh Trivedi
Hon'ble Mrs. Jyotsna Sharma,J.
1. None is present for respondents no.2 and 3.
2. Heard Sri Uma Kant, learned counsel for the revisionist and learned A.G.A. for the State and perused the record.
3. By means of this criminal revision filed under Section 19(4) of the Family Court Act the order dated 22.04.2017 passed by learned Principal Judge Family Court, Kheri under Section 126(2) Cr.P.C. in Case no.216 of 2015 along with ex parte order dated 21.07.2004 passed under Section 125 Cr.P.C. in Case No.1014 of 2004 has been challenged.
4.The facts relevant for purpose of revision are as below-:
Respondents no.2 and 3 filed an application under Section 125 Cr.P.C. claiming maintenance from opposite party (present revisionist) with the submissions that she is his legally wedded wife and they have a son and that she along with her son was turned away from matrimonial house. The application under Section 125 Cr.P.C. was decided ex parte directing opposite party-present revisionist to pay Rs.500/- per month as maintenance to his wife and Rs.300/- per month as maintenance for his son since the date of application (08.04.2004). Opposite party-instant revisionist filed an application under Section 126 Cr.P.C. for setting aside the order passed against him under Section 125 Cr.P.C. which was registered as Case No.433 of 2007. However, that was dismissed on 07.07.2008 in default. Thereafter he moved another application for restoring the aforesaid application earlier moved by him, which was registered as 153/2008 but that too was dismissed in default, on 06.10.2008. He again moved third application for restoring case No.153 of 2008. This third application for restoration was registered as Case no.60 of 2013. And this was dismissed in default on 27.11.2014. Therefore, the opposite party-revisionist filed one more application, fourth in the series for restoring case no.60 of 2013. This was registered as case no.216 of 2015. The learned trial court took up all the four applications for restoration and decided them by a common order dated 22.04.2017. Now the revisionist has challenged this order before this Court.
5. It is contended on behalf of the revisionist that the court has directed to deposit Rs. 50% of the arrears of maintenance amount without deciding core issues involved in the matter. It is further contended that the facts that respondent no.2 is wife and respondent no.3 is son of the revisionist, was not decided by the court concerned. Therefore, order is illegal. It is next contended that imposition of condition to deposit Rs.50% of the amount is too harsh and shall frustrate the very purpose of filing applications under Section 126 Cr.P.C.
6. Proviso of Section 126(2) Cr.P.C. is as below:-
"(2) 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."
7. The law provides that in case any good cause is shown on an application moved within three months from the date of order, the Magistrate may set aside the order passed ex parte under Section 125 Cr.P.C.and is also empowered to impose such terms including terms as to payment of cost to opposite party as he may thinks just and proper. Under the proviso to Section 126 (2) Cr.P.C. the order passed ex-parte may be set aside when any good cause is shown for being not able to appear to contest the matter. In the present case, as is clear from the judgment itself, the revisionist though applied for setting aside the order passed under Section 125 Cr.P.C. but he kept on defaulting till number of years passed after passing the order under Section 125 Cr.P.C.. From the record his casual and cavalier approach is too apparent. It prima facie appears that he just wanted to buy time. Learned trial court took into account all the facts and circumstances of the matter including the delay tactics as is quite evident requiring no deep analysis and imposed a condition requiring the revisionist to deposit at least 50% of the arrears of the maintenance.
8. In view of the peculiar facts of the case, the condition imposed does not appear to be arbitrary, illegal and improper. The revisionsit-applicant could have taken benefit of court order by depositing the arrears of maintenance but he did not do so. I do not find any illegality, impropriety and irregularity in the impugned order dated 22.04.2017.
9. The revisionist has put before me a judgement of this Court passed in the case of Pradeep Kumar Saxena vs. State U.P. and another 2017 (1) All JIC 194 submitting that without deciding basic issue involved for granting the application under Section 125 Cr.P.C. the same cannot be decided finally. This argument is misconceived as the revisionist had an ample opportunity to raise basic issues/objections before learned trial court after complying with the conditions imposed for setting aside the order. But he has clearly tried to mix up the things by challenging the orders together, one under Section 126(2) Cr.P.C. and the other under Section 125 Cr.P.C.. The two proceedings operate in two different areas. He is clearly trying to misuse the law. And this cannot be allowed.
10. The revision lacks merit and is dismissed.
11. Let copy of this order be transmitted to court concerned immediately.
Order Date :- 17.8.2023
Asha
