Delhi High Court
Sushil Kumar Singh vs Dr. Shruti Singh on 23 July, 2018
$~30 & 31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.07.2018
+ CRL.REV. P.596/2016 & CRL.M.A.13783-13784/2016
+ CRL.REV. P.107/2017 & CRL.M.A.1831/2017
SUSHIL KUMAR SINGH ..... Petitioner
versus
DR. SHRUTI SINGH ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. D.P. Kaushik, Advocate
For the Respondent : Mr. K.K. Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 23.07.2018
SANJEEV SACHDEVA, J. (ORAL)
CRL.REV. P.596/2016 & CRL.M.A.13783-13784/2016
1. Petitioner impugns order dated 15.01.2016, whereby the Trial
Court has proceeded ex-parte against the petitioner and listed the case
for evidence of the respondent (petitioner before the trial court).
2. Learned counsel for the petitioner submits that petitioner is not
CRL.REV. P.107/2017
seeking to impugn the part of the order which proceeded ex-parte
against the petitioner. He is impugning the part of the order which
lists the petition for respondent's evidence.
3. The order dated 15.01.2016 reads as follows:
"Notice issued to the respondent on PF has come
back unserved with the report that premises was found
locked.
Notice issued to the respondent on registered letter
come back with the report of refusal.
Petitioner is declared to have served and is
proceeded against ex-parte.
Now, to come up for ex-parte petitioner's evidence
on 16.03.2016."
4. By the said order the Trial Court has noticed that the petitioner
has refused to accept the notice sent by the court and accordingly
proceeded ex-parte. Learned counsel for the petitioner submits that
he has not been given an opportunity to show his bona fide and the
Trial Court has fixed date for leading evidence of the petitioner (i.e.
respondent herein). This is the part of the order by which the
petitioner is aggrieved.
5. The ground raised by the petitioner is that: when on the plain
reading of the pleadings, no case is made out; the court should not
have placed the matter for evidence. It is further contended that when
the Trial Court had more than enough material before it to infer that
CRL.REV. P.107/2017
the complainant had failed to make out a case for maintenance against
the petitioner (her husband); it was not open to the Trial Court to post
the matter for evidence. It is submitted that maintainability of a
proceeding has to be decided at the outset before taking evidence.
6. As noticed above, the petitioner is not impugning the part of the
order whereby he has been proceed ex-parte but only that part
whereby the case has been fixed for respondents evidence. No
revision would lie against the order merely fixing the case for
evidence. The Trial Court has not passed any order deciding or
adjudicating on the rights of the parties, after proceeding ex-parte, the
Trial Court has issued a procedural direction fixing the date for
respondent's evidence (i.e. petitioner before the Trial Court). The
Trial Court has not expressed any view on the rights and contentions
of the parties.
7. The proceedings emanate out of an application filed by the
respondent under section 125 Cr.P.C. claiming maintenance from her
husband (petitioner herein). No error has been committed by the Trial
Court in fixing the case for evidence of the petitioner (respondent
herein).
8. The petitioner who chooses to refuse to accept the summons
issued by the court and fails to file his defence or even appear before
the trial court to object to the maintainability cannot be permitted to
contend that the court should have decided on the maintainability of
CRL.REV. P.107/2017
the petition at the outset before the fixing the case for evidence. In the
absence of a party appearing and objecting to the maintainability of
the petition, the trial court is not to assume that the averments in the
petition are false.
9. The stage for the Trial Court to consider the pleadings or rights
and contentions of the parties has not yet arisen; the Trial Court would
do so after the respondent (i.e. petitioner before the Trial Court) leads
evidence.
10. I find no merit in the petition. The petition is dismissed.
CRL.REV. P.107/2017 & CRL.M.A.1831/2017
1. The Petitioner in this petition is aggrieved by the order dated
15.09.2016 whereby the application of the petitioner seeking
adjournment of the proceedings sine die have been rejected.
2. Learned counsel for the petitioner submits that because of
petitioner having been proceeded ex-parte, he is precluded from
cross-examining the witnesses or raising an objection as to the
maintainability of the proceedings or submitting legal propositions
objecting to grant of maintenance before the Trial Court.
3. It is settled position of law that a party that has been proceeded
ex-parte can, without seeking setting aside of ex-parte order, can join
the proceedings at any stage. The only drawback that such a party
would suffer from, is that such a party cannot seek reopening of
CRL.REV. P.107/2017
proceedings that have already taken place and has to proceed from
that stage.
4. In the present case, since the petitioner has not sought setting
aside of ex-parte order, he cannot seek reopening of the proceedings
that have taken place prior to his joining the same and has to proceed
from the date he joins. If any witness is produced by the respondent,
after he joins, the petitioner is not precluded from cross-examining
the said witness, though the right of cross-examination in such a case
would be limited to disapproving the case of the respondent. Since
petitioner has chosen not to file any defence, petitioner would be
precluded from putting his defence to the witness.
5. It is also settled position of law that legal objections to a
petition can be taken even at the final stage. Accordingly, if any legal
objection is raised by the petitioner objecting to the maintainability
of the proceedings, it is open to the Trial Court to consider the same
in accordance with law.
6. In my view no error is committed by the trial court in refusing
to adjourn the matter sine-die.
7. I find no merit in the petition. The same is dismissed with the
above observations.
SANJEEV SACHDEVA, J
JULY 23, 2018/ns
CRL.REV. P.107/2017
