Partly allowed

Adwitiya Saha and Another v. State of U.P. and Another

Allahabad HC24 May 2018A482/8124/2018

Case brief

AI extract

What is this about?

Application under Section 482 Cr.P.C. to quash an order recalling an ex-parte maintenance order due to delay. Single judge set aside the order, remitted matter to re-examine indulgence and impose appropriate costs on respondent who failed to appear.

What did the court decide?

Impugned order set aside; matter remitted to lower court to re-examine indulgence and appropriate cost. Application disposed on terms of interim hearing.

Adwitiya Saha and Another Vs State of U.P. and… — Maintenance and Alimony | Allahabad HC (2018)

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Court No. - 49

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Case :- APPLICATION U/S 482 No. - 8124 of 2018

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Applicant :- Adwitiya Saha And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Janardan Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Saumitra Dayal Singh,J.

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Heard learned counsel for the applicants and learned AGA for the State.

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This application under Section 482 Cr.P.C. has been filed to quash the impugned order dated 24.01.2018 passed by Family Judge/ FTC- 2, Jaunpur in Case No.30 of 2017 (Jaideep Chakrawarty Vs. Adwitiya Saha and others), under Section 126 Cr.P.C., Police Station-Kotwali, District-Jaunpur, pending in the court of Family Judge/ F.T.C. 2nd, Jaunpur.

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On 13.03.2018 the below quoted order was passed:

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"Heard learned counsel for the applicants and learned AGA for the State as also perused the record.

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The present 482 Cr.P.C. application has been filed against the order dated 24.01.2018 passed by the Judge, Family Court/ Fast Track Court-II, Jaunpur in Case No. 30 of 2017 (Jaideep Chakrawarty Vs. Adwitiya Saha and others), under Section 126 Cr.P.C., Police Station- Kotwali, DistrictJaunpur by which the application under Section 126 Cr.P.C. filed by the opposite party no. 2 has been allowed, subject to payment of cost Rs. 10,000/- within a week from that order. The case has a chequered history.

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According to opposite party no. 2, he is a practising lawyer. On 04.06.2008, the applicants being his estranged wife and child, filed an application under section 125 Cr. P. C. claiming maintenance allowance, before the Family Court, Azamgarh. The opposite party no. 2 filed appearance in those proceedings. However, subsequently, he filed Transfer Application (Criminal) No. 256 of 2009 before this Court, to transfer the aforesaid proceedings to the court at Jaunpur.

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By order dated 05.03.2013, this Court allowed the Transfer Application (Criminal) No. 256 of 2009, with the following observations:

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"Let Case No.342 of 2008 (Aditya Shah and others vs. Jaideep Chakraverti) pending in the Court of Principal Judge, Family Court, Azamgarh be transferred to the court of Principal Judge, Family Court, Jaunpur to proceed with the case, according to law.

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The transferee court is directed to make its endeavour best to conclude the proceeding as expeditiously as possible preferably within four months considering its pendency since long.

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Parties were directed to appear there on 15.5.2013."

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Despite the fact that this Court had fixed the next date in matter, before the Principal Judge, Family Court, Jaunpur, for 15.05.2013, on his application, the opposite party no. 2 did not appear in those proceedings before the transferee court. In this regard, the Addl. Chief Judicial Magistrate-II, Jaunpur to whom the matter was assigned observed in his order dated 04.09.2013 that after the receipt of the record of the file, notices had to be issued to the opposite party no. 2. Such notices were sought to be served through the S.S.P., Varanasi. Summons were also dispatched through registered post. However, the opposite party no. 2 did not appear in those proceedings. The court below has also observed that a notice was then published in a daily newspaper.

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Since the opposite party no. 2 did not appear despite such efforts, the court below then passed an order dated 17.08.2013 to proceed ex-parte against him. The opposite party no. 2 did not file any application to recall that order. Consequently, by order dated 04.09.2013, the Addl. Chief Judicial Magistrate-II, Jaunpur allowed the application for grant of maintenance @ Rs. 7,000/- per month to the applicant nos. 1 and 2, from the date of the application.

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Though the order was passed on 04.09.2013, it is a fact that it could not be enforced to any extent. No recovery has been made till date from the opposite party no. 2 though some efforts do appear to have been made by the learned court below in that regard.

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Having been thus harassed, the applicant approached this Court by means of an Application U/S 482 No. 28516 of 2017 contending that despite all efforts, the protection in law was not being made available to her. This Court decided the aforesaid application by order dated 31.08.2017 with the following observations:

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"Contention is that application u/s 125 Cr.P.C. moved by the applicant was allowed on 4.9.2013 but till date not a single penny has been paid. The opposite party no.2 is an Advocate and the contention is that he is taking undue advantage of being an advocate.

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In view of the aforesaid, it is directed that in case there is no legal impediment in the recovery of amount as payable under the order dated 4.9.2013 passed on application u/s 125 Cr.P.C., no coercive action shall be taken against the applicant.

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With the aforesaid direction the application is disposed off finally."

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At such late stage, on 26.05.2017, almost four years after the ex-parte order had been passed against the opposite party no. 2., he filed an application under the proviso to Section 126(2) of the Cr.P.C.

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While no separate application for condonation of delay was filed by the opposite party no. 2 in such application, the delay had been sought to be explained by stating that the said opposite party was unwell for sometime in the year 2013 and therefore he could not gain knowledge of the proceedings that were pending before the Addl. Chief Judicial MagistrateII, Jaunpur.

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The opposite party no. 2 also claimed that he was under treatment of one Dr. K.N. Chakrawarti till March, 2016 and that only thereafter did he gain knowledge of the proceedings under Section 125 Cr.P.C. having been decided by the Addl. Chief Judicial Magistrate-II, Jaunpur, by his order dated 04.09.2013.

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He thus totally disowned the knowledge of the notices as were dispatched by the Addl. Chief Judicial Magistrate-II, Jaunpur.

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Clearly, there is no whisper in the aforesaid application, (a copy of which has been annexed to the present application), why the opposite party no. 2 did not appear before the court below on 15.05.2013 which was the date fixed by this Court while allowing his transfer application being Transfer Application (Criminal) No. 256 of 2009.

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More surprisingly, the learned court below has also not taken note of this fact while allowing the application under Section 126 Cr.P.C. and without assigning any reason whatsoever has condoned the delay and recalled the ex-parte order dated 04.09.2013.

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Issue notice to opposite party no. 2 fixing 4.5.2018. Office to ensure that this case is listed as the first case on the list.

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Opposite party no. 2. may file his counter affidavit by the next date fixed. In his counter affidavit, besides giving reply to the affidavit filed by the applicant, he shall also:

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(i) give details of his movable and immovable properties.

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(ii) give details and file account statements of all his bank accounts.

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(iii) file copies of his last ten years income tax returns, if any.

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(iv) file such documentary or other evidence as he may choose to file in support of his plea of ill health, as allegedly certified by Dr. K.N. Chakrawarti.

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Depending on such evidence, the court may, on the next date consider issuing notice to Dr. K.N. Chakrawarti.

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Until further orders of the Court, operation and effect of the order dated 24.01.2018 shall remain stayed.

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In addition to the normal mode of service, the learned court below, shall also cause a copy of this order to be served on the opposite party.

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Also, simultaneously, the learned court below shall take up the recovery proceedings against the opposite party for the entire default in payment of monthly maintenance allowance by the opposite party no. 2, from the date of the application 04.06.2008 till today, at the awarded rate Rs. 7,000/per month.

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Any amount that may be recovered in the meanwhile may be retained in an interest bearing term deposit with a nationalised bank, that shall abide by final orders of this court.

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Also, a report as to the steps taken (with dates) and progress made, in this regard shall be submitted by the learned court below, in these proceedings, by the next date fixed.

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Let a copy of this order be communicated to the Judge, Family Court/ Fast Track Court-II, Jaunpur. "

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Opposite party No. 2 has appeared in person on those dates. He has filed a counter affidavit and a supplementary counter affidavit today wherein it has been stated that he neither has filed any income tax return for the last many years as to his present vocation it has been stated that he only earns above Rs. 80/- per day at the district Court, Varanasi.

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Thus, it has been submitted that on one hand, the opposite party No.2 does not have any means to comply with the exparte order and on the other hand, he submits that he was not heard when the impugned order dated 24.01.2018 came to be passed. He thus states that the applicant being not informed about the order dated 24.01.2018, he could not comply with the same and he could not pay the cost of Rs. 10,000/-.

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The opposite party No.2 appears to be not speaking the truth as to his correct financial status, inasmuch as by his mere appearance, he does not appear to be in such dire financial condition as has been claimed by him and on the other hand, from perusal of the documents annexed with the rejoinder affidavit filed by the applicant (to the main counter affidavit) it further appears that the said opposite party No.2 does own a car in his own name.

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In view of the above, cost of Rs. 10,000/- imposed by the learned court below does not appear to be sufficient, keeping in mind the facts that have already been noted in the earlier order dated 13.02.2018.

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Considering the above, the impugned order dated 24.01.2018 is set aside and this matter remitted to the learned court below to re-examine the issue whether the opposite party No.2 deserves any indulgence by seeking recall of the order of the ex parte order and if at all any indulgence may be granted then the learned court below may also examine the appropriate cost that may have been imposed on the opposite party No.2.

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The application under Section 126 (2) may be disposed of as expeditiously as possible, within a period of one month from today from the date of production of certified copy of this order.

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For the above purpose, it is provided that the matter shall appear before the learned court below for the first time on

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Monday i.e. 11.06.2018 on which date, both parties shall remain present before the learned court below, whereafter further date may be fixed in the proceedings.

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The present order has been passed in the presence of opposite party No.2 and learned counsel for the applicant, who shall both ensure that this order is complied with.

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Accordingly the present application is disposed of on the above terms.

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Order Date :- 24.5.2018 S. Thakur

Adwitiya Saha and Another v. State of U.P. and Another

Case brief

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Adwitiya Saha and Another v. State of U.P. and Another

Case brief

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