Uttarakhand High Court
Pravesh Kumar vs Maya And Aditya on 26 September, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 570 of 2022
With
Delay Condonation Application IA No.1 of 2022
Pravesh Kumar ...Revisionist
Versus
Maya and Aditya ...Respondents
Present:-
Mr. Pradeep Kumar Chauhan, Advocate for the
revisionist.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The revisionist proposes to challenge the order
dated 12.08.2021, passed in Criminal Case No. 30 of 2014,
Smt Maya and Another Vs. Pravesh Kumar, by the court of
Family Judge, Haridwar ("the case"). By it, an application for
maintenance filed by the respondent no.1 for herself and her
son, the respondent no.2, have been allowed ex-parte, and
the revisionist has been directed to pay total Rs. 18,000/-
per month to them.
2. The challenge is also made to order dated
30.04.2022, passed in Misc. Criminal Case No.123 of 2021,
Pravesh Kumar vs. Smt. Maya and Another, by the court of
Family Judge, Haridwar. By this order, according to the
revisionist, his application under Section 126(2) of the Code
of Criminal Procedure, 1973 ("the Code") has been rejected,
which was filed for setting aside the ex-parte judgment and
order dated 12.08.2021, passed in the case and order dated
30.04.2022, passed in Misc. Case No.128 of 2021, under
Section 125(3) of the Code, by which, recovery warrants for
recovery of arrears have been issued.
3. This revision is delayed by 55 days. A Delay
Condonation Application has been filed.
4. Having considered, this Court is of the view that
delay in filing the revision may be condoned.
5. Delay condonation application IA No.1 of 2022 is
allowed.
6. Delay condoned.
7. Heard learned counsel for the revisionist on
admission.
8. Learned counsel for the revisionist would submit
that the respondent no.1 had filed an application under
Section 125 of the Code against him, in which the revisionist
had also filed objections denying the status of the respondent
no.1 as his wife, but, subsequently, due to COVID-19
Pandemic, the revisionist could not appear in the case and
the case proceeded ex-parte. It is argued that soon
thereafter, the revisionist filed an application for setting aside
the ex-parte judgment and order dated 12.08.2021, passed
in the case, but in that case, the counsel appointed by the
revisionist, did not appear, which also resulted in dismissal.
9. Learned counsel for the revisionist would submit
that the revisionist proposes to object to the application
under Section 125 of the Code, filed by the respondent no.1,
seeking maintenance for herself and her son, the respondent
no.2. The revisionist may be allowed to contest the case, even
though, some costs may be imposed on him.
10. It is always in the interest of one and all, if the
case is heard and decided on merits. Rule of fair procedure
wants that a party, against whom an order is passed, is
afforded full opportunity to contest the case.
11. The case is based on an application filed under
Section 125 of the Code by the respondent no.1 seeking
maintenance for herself and her young son, the respondent
no.2. In the case, the revisionist was afforded an opportunity
of hearing. In fact, he did appoint a counsel for himself.
Objections were filed on his behalf. But, thereafter, he
remained absent. On 05.08.2021, the case proceeded ex-
parte against him.
12. Learned counsel for the revisionist has referred to
the order sheets of the case from 27.03.2021 to argue that,
in fact, due to COVID-19 reasons, a few dates were
adjourned in the case.
13. It is true that due to COVID-19 pandemic, all the
cases could not be heard effectively, although, Judiciary, at
that crucial juncture, also responded to the changing needs
of the time and heard the matter through video conferencing.
But, fact remains that in all case, effective hearing could not
be done.
14. Perusal of the order sheets, in the case, reveals
that on 17.03.2021, the matter was fixed, which on that date
was adjourned on an application filed by the revisionist. Next
date fixed was 31.03.2021. On that date, the revisionist did
not appear. He did not appear thereafter. On 03.08.2021, the
court noted non-appearance of the revisionist and also made
an observation that on 17.03.2021, he had filed an
adjournment application. On that date, the court did not
pass any adverse order against the revisionist and simply
adjourned the date in the interest of justice for 05.08.2021.
15. It is on 05.08.2021, when in the absence of the
revisionist, the court ordered that the case shall proceed ex-
parte against him. Thereafter, matter was heard ex-parte and
finally the impugned judgment and order dated 12.08.2021
was passed. It cannot be said that the revisionist was
prevented due to any reason connected with COVID-19
Pandemic in his appearance before the court.
16. It did not stop here. It is submitted on behalf of
the revisionist that on 09.09.2021, the revisionist moved an
application for setting aside the judgment and order dated
12.08.2021, passed in the case, which was rejected on
30.04.2022, in his non-appearance.
17. It is a revision. It cannot be admitted in a routine.
It has to be shown that the impugned judgment and order
has some illegality, error and impropriety. It is argued that,
in fact, the status of the respondent no.1 as his wife has
been denied by the revisionist. It is true that this objection
was raised. It is also true that the impugned order records a
DNA report, according to which, the revisionist is 99.99%
biological father of the child, who is respondent no.2. The
respondent no.1 has stated that the revisionist is father of
the child. The revisionist did not appear to rebut this
evidence. He did not appear in the witness box.
18. The impugned judgment and order dated
12.08.2021, has been passed ex-parte. It is in accordance
with law. Similar is the order dated 30.04.2022, which is
filed in the proceedings under Section 126(2) of the Code and
another order, which has been filed under Section 125(3) of
the Code. Nothing has been indicated, which may warrant
any interference. Therefore, the revision deserves to be
dismissed at the stage of admission itself.
19. The revision is dismissed in liminie.
(Ravindra Maithani, J.)
26.09.2022
Ravi Bisht
