Gujarat High Court
Farook Hajimamad Kataria vs State Of Gujarat on 20 June, 2025
NEUTRAL CITATION
R/SCR.A/375/2014 ORDER DATED: 20/06/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 375 of 2014
==========================================================
FAROOK HAJIMAMAD KATARIA
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MRS NISHA M PARIKH(2397) for the Applicant(s) No. 1
MR RJ GOSWAMI(1102) for the Respondent(s) No. 2,3
MR. TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 20/06/2025
ORAL ORDER
1. Heard learned advocate Mrs. Nisha M. Parikh for the
petitioner.
2. The matter was called out during both sessions; however,
learned advocate Mr. R.J. Goswami for respondent Nos. 2 and 3 did
not remain present.
3. It is pertinent to note that the petitioner had preferred
Criminal Miscellaneous Application No. 186 of 2013 before the
Family Court, Junagadh, seeking recall of the maintenance order
passed under Section 125 of the Code of Criminal Procedure in
Criminal Miscellaneous Application No. 631 of 2011, contending that
the said order was passed ex parte. The petitioner had earlier filed
Criminal Application No. 2336 of 2012, asserting that the learned
Principal Judge, Family Court, Junagadh, had passed the ex parte
order in the said maintenance proceedings. However, the said
NEUTRAL CITATION
R/SCR.A/375/2014 ORDER DATED: 20/06/2025
undefined
application was withdrawn with liberty to file an appropriate
application under Section 127 of the Cr.P.C. before the Family
Court.
4. Subsequently, the petitioner preferred an application under
Section 127 of the Cr.P.C. before the Family Court, Junagadh, which
was also withdrawn. Thereafter, the petitioner approached the
learned trial Court by way of Criminal Miscellaneous Application
No. 186 of 2013 under Section 126(2) of the Cr.P.C., once again
asserting that the order passed in Criminal Miscellaneous
Application No. 631 of 2011 was ex parte and thus liable to be
recalled.
5. Learned advocate Mrs. Parikh, though strenuously contended
that the order passed by the learned Family Court in Criminal
Miscellaneous Application No. 631 of 2011 is an ex parte order,
could not satisfactorily demonstrate before this Court that the said
order was indeed passed ex parte.
6. The record of proceedings in Criminal Miscellaneous
Application No. 631 of 2011 reveals that the process was duly
served upon the petitioner. He was represented through an
advocate; however, for reasons best known to him, he did not
actively participate in the said proceedings. Consequently, the
matter proceeded and culminated in an order passed in favour of
the original claimants.
7. The learned Family Court, after considering the material on
record, allowed the application under Section 125 of the Cr.P.C.,
directing the petitioner to pay maintenance of Rs. 8,000/- to the
NEUTRAL CITATION
R/SCR.A/375/2014 ORDER DATED: 20/06/2025
undefined
original claimant No.1 - the wife of the petitioner, and Rs. 4,000/- to
the original claimant No.2 - the son of the petitioner, totaling Rs.
12,000/- per month.
8. However, there is no clear record placed before this Court
indicating the extent to which the petitioner has complied with the
said order and paid any amount towards the awarded maintenance.
As discussed hereinabove, the primary submission of the petitioner
that he was not duly served with process stands unsubstantiated
and unsupported by any cogent material.
9. At this stage, it would be apposite to refer to the findings
recorded by the learned trial Court while rejecting the relief prayed
for by the petitioner. The relevant observations are extracted
hereinbelow:
14.After considering the rival submissions and on perusal of the
record, it is not in dispute that present application is filed U/s.
126(2) of the Criminal Procedure Code to set aside the ex parte
order passed in Criminal Misc. Application No. 631/2011.
Section-126(2) of Criminal Procedure Code reads as under:-
126 (2) All evidence to such proceedings shall be taken in the
presence of the person against whom an order for payment of
maintenance is proposed to be made, or, when his personal
attendance is dispensed with in the presence of his pleader,
and shall be recorded in the manner prescribed for summons-
cases:
Provided that if the Magistrate is satisfied that the person
against whom an order for payment of maintenance is
proposed to be made is willfully avoiding service, or willfully
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 as to payment of costs to the
opposite party as the Magistrate may think list and proper.
NEUTRAL CITATION
R/SCR.A/375/2014 ORDER DATED: 20/06/2025
undefined
15. From the plain reading of Section-126 (2) of Cr.P. C.,
it is clear that the application is to be filed within the period of
three months from the date of order. It is also not in dispute
that order in Criminal Misc. Application No. 631/2011 was
passed on 31/05/2012 and the applicant wants to set aside the
said order by filing the present application on 25/03/2013
invoking Section-126(2) of Criminal Procedure code. Thus,
there is delay of 6 months and 25 days. In case of Pandiyala
Sureshkumar (Supra), it is held by the High Court of Gujarat
that proceedings under this provision is quasi-civil
proceedings.
Section-3 (1) of the Limitation Act, Section-3 1963 lays as
under:-
Section 3. Bar of limitation. - (1) Subject to the provisions
contained in Sections 4 to 24 (inclusive), every suit instituted,
appeal preferred, and application made - after the prescribed
period shall be dismissed although limitation has not been set
up as a defence. Thus, the duty is casted upon the Court to see
that proceedings are within the limitation or not ?
17. It is pertinent to note that in the present case, the
applicant has not filed any application for condonation of
delay. In case of Ragho Singh V/s. Mohan Singh reported in
2001 AIR SCW 2351, wherein the Hon'ble Apex Court while
confirming the Judgment of Patna High Court where there was
delay of 10 days, it was held that appeal which which was filed
beyond time of 10 days ought to have been dismissed on the
ground of limitation as no application was filed for
condonation of delay as contemplated by Section 5 of the
Limitation Act. In the present case also the applicant has not
filed any application for condonation of delay and I am of the
view that the said ration would applicable to the facts of the
present case and the application is required to be dismissed on
the ground of
18. Though it is not argued by both the parties, it may be
argued that they have been prosecuting remedy before a
wrong forum with due diligence and in good faith. So, the
period spent in prosecution in those proceeding may be
excluded U/s.14 of the Limitation Act. But again the Hon'ble
Supreme Court in case of Ketan V/s. Parekh V/s. Special
Director, Directorate of Enforcement reported in AIR 2012
SUPREME COURT 683, held that
"Where the writ petition filed before High Court against the
NEUTRAL CITATION
R/SCR.A/375/2014 ORDER DATED: 20/06/2025
undefined
order of Appellate Tribunal imposing penalty under the Act
was dismissed on ground that remedy of appeal under S. 35
was available, S. 14 of the Limitation Act cannot be relied upon
for exclusion of period during which the writ petitions filed by
the appellants remained pending before the High Court, when
averments in application for condonation of delay showed that
there was not even a whisper in the applications filed by the
appellants that they had been prosecuting remedy before a
wrong Forum, i.e. another High Court with due diligence and
in good faith. Not only this, the prayer made in the
applications was for condonation of 1056 days' delay and not
for exclusion of the time spent in prosecuting the writ petitions
before that High Court."
Hence, the applicant would not be entitled for any exclusion
of the time U/s. 14 of the Limitation Act. The same view is
taken by the Apex Court in case of Ramji Pandey V/s. Swaran
Kali reported in AIR 2011 SUPREME COURT 489. In that
reported case, the suit was filed for declaration before the Civil
Judge, Allhabad. Though the written statement was filed, they
failed to appear in the suit, and therefore, the exparte decree
was passed, and thereafter, the application to set aside the
decree under order-9, rule-13 of Civil Procedure Code was
rejected by the Civil Judge on the ground of negligence and
lack of due diligence on part of the defendant and they were
not entitled to relief of set aside exparte decree. The defendant
has filed appeal against the said order before the District Court
instead of High Court. Wherein the plaintiff had taken
objection at the initial stage that District Court has lacked
pecuniary jurisdiction to entertain the said appeal, but they
have proceeded and obtain the said order. So, it was held that
conduct of the party qua defendant and appellant before the
Supreme Court was through out lack of due diligence and was
also negligent, and therefore, times spent in wrong forum can
not be excluded and delay can not be condoned.
19. Thus, in the case on hand the order in Criminal Misc.
Application No. 631/2011 was passed on 31/05/2012 and the
present application is filed on 25/03/2013. Thus, there is delay
of 6 months and 25 days, but the applicant has not filed any
application for condonation of delay. The applicant initially
had not filed application U/s. 126(2) before this Court instead
of he had challenged the order before the Hon'ble High Court
and in the High Court, he has submitted that he wants to
pursue relief U/s.127 of Criminal Procedure Code and he has
withdrawn the Special Criminal Application. Thereafter, he has
moved the application U/s.127 of Criminal Procedure Code
before this Court which was also withdrawn by him. Only
NEUTRAL CITATION
R/SCR.A/375/2014 ORDER DATED: 20/06/2025
undefined
reason stated in para-6 of the present application that applicant
is ignorant of law and he had filed different applications at
different forum as per the instruction and guidance given by
his Id. Advocate. I am of the view that above ratio of the
Hon'ble Apex Court would squarely applicable to the facts of
the present case. It is difficult to accept the submission made
by the Learned Advocate that he had approached the High
Court and his advocate has not properly guided and he has
wrongly advised him to file application U/s.127 of Criminal
Procedure Code. The order of the High Court clearly states that
his advocate had sought permission to withdraw with liberty to
file an application U/s.127 of Criminal Procedure Code. The
present applicant has also admitted in his cross-examination
that he had filed Criminal Misc. Application No. 519/2012
U/s.127 Of Criminal Procedure Code, which was withdrawn by
him. Nowhere he has stated that it was conditional withdrawal
with permission to file fresh application U/s. 126(2) of Criminal
Procedure Code. In the application on hand, the applicant has
stated that he is ignorant of law and he had engaged lawyer.
He has stated that he had full trust on his advocate as if person
travels in ship and he has to trust on sailor. Thus, the applicant
has come with a case that he was given wrong advise by his
advocate and he has filed wrong application before the High
Court and thereafter, wrong application before this Court and
after true advise by last advocate, he has moved the present
application. This is only reason stated in his application. But
the Hon'ble Apex Court in case of Salil Dutta V/s. T.M. and
M.C. Private Itd, reported in (1993) 2 scc 185, wherein it is held
that :
"The advocate is the agent of the party. His acts and
statements, made within the limits of authority given to him,
are acts and statements of the principal i.e. the party who
engaged him. It is true that in certain situations, the court may,
in the interest of justice, set aside a dismissal order or an ex
parte decree notwithstanding the negligence and/or
misdemeanour of the advocate where it finds that the client
was an innocent litigant but there is no such absolute rule that
a party can disown its advocate at any time and seek relief. No
such absolute immunity can be recognised. Such an absolute
rule would make the working of the system extremely
difficult."
10. In the limited supervisory jurisdiction available under Article
227 of the Constitution of India, upon perusal of the reasoning
assigned by the learned trial Court, this Court does not find any
NEUTRAL CITATION
R/SCR.A/375/2014 ORDER DATED: 20/06/2025
undefined
palpable illegality or material irregularity warranting interference.
There appears to be no error apparent on the face of the record that
would justify invocation of the supervisory jurisdiction of this Court.
Accordingly, the present petition stands DISMISSED.
11. Interim relief, if any, granted earlier, stands vacated.
(J. C. DOSHI,J)
MANISH MISHRA
