Shiv Kumar Khetan And 10 Others vs State Of U.P. And Another
2023 Latest Caselaw 1487 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- APPLICATION U/S 482 No. - 17265 of 2022
 

 
Applicant :- Shiv Kumar Khetan And 10 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Krishna Mohan
 
Counsel for Opposite Party :- G.A.,Shambhavi Nandan
 

 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard the learned counsel for the applicants, learned counsel for the opp. party no. 2 and perused the record.

This application u/s 482 Cr.P.C. has been moved to seek inherent jurisdiction of this court to quash the ex party judgment/ order dated 4.3.2021 passed by Civil Judge (SD) F.T.C./ACJM Gorakhpur in complaint case no. 1843 of 2019, under section 12 and 18 of Domestic Violence Act, 2005, Smt. Dipika Vs. Atma Ram and others.

It is argued by the learned counsel for the applicants that they had not been served in the case, they had no knowledge about the pendency of the suit. The report of D.P.O. was received on 25.5.2019. The order sheet does not disclose about the service of notice on them. Hence, the prayer is made to set aside the ex parte order passed agaisnt the applicants.

Learned counsel for the opp. party no. 2 submits that the applicants have proper remedy to file either an appeal before the trial court or to move an application under Section 126 Cr.P.C. to set aside this ex parte order. The efficacious remedy before the trial court is available to the applicants hence, this application is not maintainable before this court.

From perusal of the record, it is found that the impugned order dated 4.3.2021 is an ex parte order. In the judgment, it has been mentioned that as per the report of D.P.O. the service on the applicants was considered sufficient vide order dated 13.3.2020 and in absence of the applicants, the court was bound to pass the ex parte judgment. However, if the applicants want to get this ex parte order set aside, they have remedy of moving an application to set aside this ex parte order in compliance of the Rule -6 of Protection of Women from Domestic Violence Act, 2006 or to file an appeal under section 29 of Protection of Women from Domestic Violence Act, 2005. It has not been cleared by the learned counsel for the applicants that why he did he not avail these remedies in the trial court itself. While the applicants are having equal efficacious remedy before the trial court itself as per law also, they must avail the remedy available to them in the court of lowest jurisdiction.

The application u/s 482 Cr.p.C. is rejected with the direction to the applicants to avail the appropriate remedy before the trial court, if they are so advised.

Order Date :- 13.1.2023

Gss