Allowed

Ramdeo Chintaman Badgujar v. Vaishali Ramdeo Badgujar and Others

Bombay HC16 Nov 2021WP/752/2019

Case brief

AI extract

What is this about?

The petitioner challenged an appellate order which set aside a Magistrate's rejection of an amendment application in a Domestic Violence Act case. The court held the appeal under Section 29 was not maintainable against a purely procedural order on amendment and quashed the appellate court order.

What did the court decide?

The impugned appellate order dated February 25, 2019 was set aside. The respondent is at liberty to file appropriate proceedings to challenge the order of the learned Magistrate.

Ramdeo Chintaman Badgujar Vs Vaishali Ramdeo Badgujar and… — Domestic Violence | Bombay HC (2021)

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criwp752.19

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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919 CRIMINAL WRIT PETITION NO.752 OF 2019

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RAMDEO CHINTAMAN BADGUJAR VERSUS VAISHALI RAMDEO BADGUJAR AND OTHERS

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Mr. Mohit Shah, Advocate h/f Mr. S. P. Brahme,
Advocate for the petitioner

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Mrs. R. P. Gaur, APP for the respondent/State
Mr. G. S. Rane, Advocate for the respondent No.2

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CORAM:N. R. BORKAR, J.

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DATE:16-11-2021

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P. C.

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.This petition takes an exception to the
order dated 25-02-2019, passed by the learned
Additional Sessions Judge, Amalner in Criminal
Appeal No. 28 of 2017.

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2.The respondent No.1 herein filed an
application under the Provision of Protection of
Women From Domestic Violence Act for various reliefs
against the present petitioner. The application for
amendment was moved at Exh.60. The learned
Magistrate rejected the said application by order
dated 26-09-2017.

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(2) criwp752.19

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3.The appeal was filed against the said order of
the learned Magistrate dated 26.09.2017. In appeal
the order passed by the learned Magistrate came to
be set aside and consequently the application moved
by respondent No.1 for amendment was allowed. The
order of appellate Court is impugned in this
petition.

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4.I have heard learned counsel for the
petitioner and learned counsel for the contesting
respondent No.1.

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5.The learned counsel for the petitioner
submits that the appeal under Section 29 of the Act
against the order rejecting the application for
amendment was not maintainable. It is submitted that
the issue of maintainability was raised before the
learned Additional Sessions Judge. It is submitted
that the learned Additional Sessions Judge, however,
took a wrong view of the matter and on the basis of
judgment of the Hon’ble Apex Court which was not on
the point of maintainability has held that the
appeal is maintainable. It is submitted that the
learned Additional Sessions Judge thus erred in
entertaining the appeal on merit and setting aside

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(3) criwp752.19

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the order of learned Magistrate. In support of the
submission the learned counsel for the petitioner
has relied upon the judgment of this court reported
in2009 (1) Bombay CR (Cri.) 845 in the case of
Abhijit Bhikaseth Auti Vs State of Maharashtra and
others.

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6.On the other hand learned counsel for the
contesting respondent No.1 submits that the
amendment application was rejected on erroneous
ground by the learned Magistrate. It is submitted
that the learned Additional Sessions Judge
entertained the appeal on the basis of Judgement of
Hon’ble Apex Court in the case ofKunapareddy @
Nookala Shanka Balaji Vs Kunapareddy Swarna Kumari
and Anr reported in 2016 STPL 3827 SC.

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7.It is further submitted that the appellate
court has recorded valid reasons for allowing the
application and no exception is taken to the order
of appellate Court on merits. It is submitted that
considering the facts and circumstances, the order
of appellate Court which is not assailed on merit
may not be interfered with in writ jurisdiction.
Accordingly, it is submitted that the petition be

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dismissed.

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8.Admittedly the issue of maintainability of
appeal was raised before the appellate court. Even
the judgment of this court in the case of Abhijit
Auti (supra) was cited before the appellate court.
This court in the said Judgment has held :

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22.As held by the Apex Court in the case of
Central Bank of India (supra) and Shankarlal Aggarwal
(supra), an appeal under Section 29 will not be
maintainable against the purely procedural orders such as
orders on application for amendment of pleadings, orders
refusing or granting adjournments, order issuing witness
summons or orders passed for executing the orders passed
under the said Act etc.

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9. In view of judgment of this court in the
above case, the appeal filed by the respondent No.1
was not maintainable. The order impugned passed by
the appellate court thus cannot be sustained. The
submission that the order of appellate Court on
merit, legal and valid is inconsequential. Hence,
the following order is passed.

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criwp752.19

ORDER

i. The petition is allowed.

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ii.The order impugned is set aside.

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iii. The respondent No.1 is, however, at
liberty to challenge the order of learned
Magistrate dated 26.09.2017 by filing
appropriate proceedings, if she wishess to.

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[ N. R. BORKAR, J. ]

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VishalK/criwp752.19

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Ramdeo Chintaman Badgujar v. Vaishali Ramdeo Badgujar and Others

Case brief

What is this about?

What did the court decide?

Ramdeo Chintaman Badgujar v. Vaishali Ramdeo Badgujar and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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