Remanded

Jagpal v. State of Up and 4 Others

Allahabad HC21 Oct 2024A227/3644/2024

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the Allahabad High Court set aside the Family Court's order dismissing a petition for condonation of delay under Section 5 of the Limitation Act. The Court remitted the matter, granting one last opportunity subject to a deposit of Rs. 1,50,000.

What did the court decide?

Order dated 21.02.2024 quashed; matter remitted to Family Court for fresh consideration of condonation application upon deposit of Rs. 1,50,000.

Jagpal vs State of Up and 4 Others — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:166945

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Court No. - 85

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Case :- MATTERS UNDER ARTICLE 227 No. - 3644 of 2024

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Petitioner :- Jagpal Respondent :- State Of Up And 4 Others Counsel for Petitioner :- Sanjay Kumar Dubey Counsel for Respondent :- G.A.

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Hon'ble Saurabh Srivastava,J.

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Heard Sri Sanjay Kumar Dubey, learned counsel for petitioner and learned AGA for respondent no. 1.

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Present petition has been filed with the following prayer:

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"i) issue an appropriate order or direction setting aside the impugned order dated 21.02.2024 passed by learned Principal Judge (Family Court), Hathras in Misc. Case no. 259 of 2023 (Jagpal Vs. Smt. Rajni Devi and others) under Section 5 of Limitation Act read with Section 126(2) Cr.P.C, Police StationHathras Kotwali, District Hathras.

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ii) issue an appropriate order or direction, directing the trial court to allow application filed under Section 5 of Limitation Act read with Section 126(2) Cr.P.C, Police Station- Hathras Kotwali, District- Hathras which was registered as Case no. 259 of 2023 (Jagpal vs. Smt. Rajni and others)."

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The instant petition has been preferred against the order dated 21.02.2024 through which application preferred under Section 126(2) of Cr.P.C at the behest of the petitioner has been dismissed and disposed of on the ground of not taking necessary steps by way of recording reasoning that on the basis of previous orders and proceedings pending during proceeding of Section 125 Cr.P.C, the petitioner is not coming forward to take part in the proceeding of the case and on last previous occasion it is the wilful and deliberate delayed tactics adopted by the petitioner by way of not attending the proceeding before the learned court concerned. Being aggrieved with the order dated 21.02.2024, the instant petition has been preferred.

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It is submitted by learned counsel for the petitioner that order dated 31.05.2022 through which Rs.4,00,900/- has been extended in favour of respondent nos. 2 to 5 has been sought to be recalled being the ex parte order but on the specific date i.e. on 21.02.2024 exemption application has been preferred at the behest of the

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petitioner in Case no. 222 of 2020 but the same has not been considered by way of dismissing the application under Section 5 of Limitation Act in Application under Section 126(2) Cr.P.C in Misc. Case no. 259 of 2023 which was not the wilful avoidance of the proceedings of the Court, whereas petitioner preferred a recall application for seeking recall of the ex parte order dated 31.05.2022 and as such order dated 21.02.2024 is highly illegal and the same deserves to be quashed by this Court.

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Per contra, learned AGA vehemently opposed the prayer as made in the petition and rebutted the stand taken up by learned counsel for the petitioner on the basis of the specific provisions mentioned under Section 126 Cr.P.C which provides for consideration of the application if preferred by aggrieved person under Section 5 of Limitation Act but the same is permissible for consideration after depositing certain cost upto the satisfaction of the Court concerned, since it is apparent from the finding recorded by learned Family Court, Hathras while passing order dated 21.02.2024 which is apparent from the records that the petitioner is willfully avoiding the proceedings of the Court on several previous occasions.

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After having the rival submissions extended by learned counsel for the parties, the arguments raised by learned AGA is quite convincing. The maintenance amount has been extended by learned Court of Principal Judge, Family Court, Hathras vide order dated 31.05.2022 from the date of application preferred at the behest of respondent nos. 2 to 5 i.e. since 2020 but it is admitted fact that till today not a single penny has been extended by the petitioner in favour of respondent nos. 2 to 5 in pursuance of the same. On other hand the recall application preferred under Section 126 of Cr.P.C has been filed only for keeping the matter pending but not attending the same has reflected from the order dated 21.02.2024.

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On the precise confined prayer made by learned counsel for the petitioner that one last opportunity may be extended in favour of the petitioner for pursuing application under Section 5 of Limitation Act in application under Section 126(2) Cr.P.C, the same requires to be extended considering the propriety of law demands for fair and impartial adjudication of the matter on the basis of the merits only.

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In view of aforesaid circumstances, order dated 21.02.2024 is hereby set aside. Matter is remitted back to learned Family Court, Hathras by way of specific direction to consider the application

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under Section 5 of Limitation Act along with application under Section 126(2) Cr.P.C since the recall has been preferred at the behest of petitioner after expiry of the prescribed limitation of 3 months, by way of giving only one opportunity. However, it is made clear that the above mentioned direction is subject to deposition of Rs.1,50,000/- by the petitioner before pressing his application under Section 126(2) Cr.P.C within 3 weeks from today and after satisfaction of the amount deposited at the behest of petitioner, learned Family Court, Hathras will decide the application after extending proper opportunity of hearing within 15 days thereafter.

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The instant petition stands disposed of accordingly.

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Order Date :- 21.10.2024 Shaswat

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Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad

Jagpal v. State of Up and 4 Others

Case brief

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Jagpal v. State of Up and 4 Others

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