Another recall of order: this time by a trial court: no interference by High Court

April 12, 2019: Delhi High Court has chosen not to interfere with an order recalling the earlier order dismissing the petition filed under Section-125 CrPC and opined that in the peculiar circumstances, interest of justice would be served by non interference.

Justice Sachdeva passed the judgment titled SURENDER SINGH ARYA vs MEENU ARYA on 05.04.2019.

Wife filed a maintenance petition in the year 2003 wherein she was allowed a monthly maintenance @ Rs.2000/- per month but the husband managed to protract the things. Ultimately, in the year 2012 on a given date when the wife was not present, the court closed her right to lead evidence due to non appearance and in the absence of any evidence it chosen to dismiss the case.

Subsequently, the wife applied for restoration of her petition and pleaded medical ground for non appearance. The Court found justification and recalled its earlier order and directed restoration of the case filed by the wife.

Husband challenged the restoration before the High Court.

High Court observed “At this stage to accept the plea of learned counsel for the petitioner that order dated 08.10.2012 was in fact a judgment and respondent should have filed an appeal, would amount to an exercise in futility and gross harassment of the respondent as the judgment of the Trial Court would be set aside for the asking; because the finding returned that factum of marriage has not been proved is contrary to record because the factum of marriage is not in dispute”.

It also observed “Application under Section 125 Cr.P.C. was filed as far back in the year 2003 and interim maintenance of only Rs. 2,000/- was awarded and it would not be in the interest of the Respondent – wife to delay the proceedings. She would not benefit from any delay. Even as on date, petitioner is in substantial arrears of maintenance”.

The High Court then given its opinion as “I am of the view that it would not be in the interest of justice to accept the plea of the petitioner and to relegate the respondent to filing an appeal”.

It then held “Keeping in view the peculiar facts and circumstances of the case in mind, I am of the view that interest of justice would be served by not interfering with the impugned order restoring the petition filed by the respondent to its original number and rejecting the petition”.

Read the judgment here:

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