Allowed

Smt. Y. Meera Bai v. G. Venkat Giri Rao

Chhattisgarh HC18 Jul 2022CRMP/1479/2019

Case brief

AI extract

What is this about?

This High Court recalled an ex parte criminal revision order ex parte passed in a maintenance dispute due to the petitioner's counsel being omitted in the cause list, holding that Section 362 CrPC did not bar recall where prejudice was caused.

What did the court decide?

Impugned order dated 30.4.2019 is recalled. Registry directed to list Criminal Revision No.575 of 2015 for further hearing.

Smt. Y. Meera Bai Vs G. Venkat Giri Rao — Maintenance and Alimony | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Miscellaneous Petition No.1479 of 2019

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Order Reserved on : 7.7.2022

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Order Passed on : 18.7.2022

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Smt. Y. Meera Bai, W/o G. Venkat Giri Rao, aged about 33 years, R/o through Y. Rama Rao, Venkteshwar Marbal, Panchsheel Nagar (E), G.E. Road, Charoda, Tahsil Patan, District Durg, Chhattisgarh

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---- Petitioner

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versus

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G. Venkat Giri Rao, S/o Venkat Rao, aged about 37 years, Current Address Door No.46-11-35, Sirapurvani Street, Doandaparthi, Vishakhapattnam-16 (AP), Permanent Address through G. Venkat Rao, Door No.57-22-7A, Subhash Nagar, Kanchara Palem, Vishakhapattnam (AP)

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--- Respondent

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------------------------------------------------------------------------------------------------------For Petitioner : Ms. Fouzia Mirza, Senior Advocate with Shri Navin Shukla, Advocate For Respondent : Shri Vipin Tiwari, Advocate

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Hon'ble Shri Justice Arvind Singh Chandel

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C.A.V. ORDER

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The instant petition has been filed by the wife under Section 482 of the Code of Criminal Procedure for recalling the order dated 30.4.2019 passed by this Court in Criminal Revision No.575 of 2015 (Annexure P1).

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Briefly stated the facts of the case are that the Petitioner is wife of the Respondent. Their marriage was solemnised on 11.10.2011. The Petitioner/wife filed an application under Section 127 of the Code of Criminal Procedure. Vide order dated 6.6.2015, the Family Court, Durg in Miscellaneous Criminal Case No.419 of 2014

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allowed the application of the Petitioner/wife and granted her monthly maintenance of Rs.10,000. Against the said order of the Family Court, a revision, being Criminal Revision No.575 of 2015 was preferred by the Respondent/husband. After receipt of a notice of the revision, Counsel for the Petitioner/wife filed vakalatnama on 12.8.2015. The matter was fixed for final hearing in the weekly list of 4.2.2019 (Annexure P2). The matter was listed for final disposal/final hearing at item No.27, list-2 before this Court. Since the name of the Counsel for the Petitioner/wife did not appear in the said cause list, the Petitioner/wife’s Counsel did not appear before the Court when the matter was called for final hearing. Hence, the matter was heard without any opportunity of hearing to the Petitioner/wife and ex parte order was passed by this Court in the revision on 30.4.2019 (Annexure P1).

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Learned Senior Counsel appearing for the Petitioner/wife submitted that while passing the impugned order dated 30.4.2019, this Court has especially stated in paragraph 5 that none appeared for the wife despite the matter was called out for hearing twice being unaware of the fact that the name of the Counsel for the Petitioner/ wife neither reflected in the cause list for 4.2.2019 nor was any message regarding the same received by the Counsel. Hence, the Petitioner/wife did not get an opportunity to present her case through her Counsel before this Court. Since no opportunity of being heard was given to the Petitioner/wife and her Counsel was unaware of the date of hearing of the revision, none could appear on behalf of the wife and the revision was heard ex parte.

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Therefore, a prejudice is caused to the Petitioner/wife. Thus, it is prayed by Learned Senior Counsel that a reasonable opportunity of hearing be afforded to the Petitioner/wife and the impugned order dated 30.4.2019 be recalled. Learned Senior Counsel placed reliance on Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396 and Ganesh Patel v. Umakant Rajoria, S.L.P. (Crl.) No.9313 of 2021 order dated 7.3.2022 .

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Learned Counsel appearing for the Respondent/husband opposed the arguments raised by Learned Senior Counsel for the Petitioner/ wife and submitted that the impugned order dated 30.4.2019 was passed on its own merits and the Petitioner/wife is seeking an order to recall the impugned order which is not provided by the law. It was further submitted that once the order is passed on its own merits, it cannot be reviewed. If there is any typographical error brought to the knowledge of the Court, that can only be cured. The only remedy now available to the Petitioner/wife is to approach the Supreme Court. The instant petition filed by the Petitioner/wife is not maintainable. Reliance was placed on a judgment of a Single Bench of Allahabad High Court in Yaqoob Husain v. State of U.P., (2021) CriLJ 1205 .

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I have heard the arguments advanced on behalf of the parties and perused the entire material available with due care.

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The only question emerges for consideration is as to whether in view of the bar contained in Section 362 of the Code of Criminal Procedure the judgment or order rendered/passed by this Court

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can be recalled though passed in absence of the Counsel.

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Undisputedly, Criminal Revision No.575 of 2015 was heard finally on 8.2.2019 and the order was passed on 30.4.2019 (Annexure P1). At the time of final hearing on 8.2.2019, none appeared for the Petitioner/wife nor did the Petitioner herself appear in person. From perusal of the weekly cause list for 4.2.2019 of this Court (Annexure P2), it appears that Criminal Revision No.575 of 2015 was listed for final hearing at item No.27 of list-2. In the said cause list, only the name of the Respondent/husband’s Counsel is mentioned. In Criminal Revision No.575 of 2015, vakalatnama for the Petitioner/wife was filed by her Counsel on 12.8.2015 (Annexure P4). Thus, it is apparent that on the date of publication of the weekly cause list for 4.2.2019 (Annexure P2), despite the vakalatnama for the Petitioner/wife was already on record, her Counsel’s name was not shown in the cause list (Annexure P2) and at the time of hearing on 8.2.2019 neither the Petitioner/wife’s Counsel appeared nor did the Petitioner herself appear in person before this Court and, therefore, the ex parte order (Annexure P1) was passed.

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In Yaqoob Husain case (supra), referring to the various judgments of the Supreme Court, the Learned Single Bench of Allahabad High Court was of the view that no judgment or order can be altered, reviewed or recalled in view of the bar contained in Section 362 of the Code of Criminal Procedure.

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Dealing with the issue, in Budhia Swain case (supra), the Supreme

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Court observed as follows:

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“8. In our opinion a tribunal or a court may recall an order earlier made by it if

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(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,

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(ii) there exists fraud or collusion in obtaining the judgment,

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(iii) there has been a mistake of the court prejudicing a party, or

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(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.

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The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.”

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Reiterating the above judgment, the Supreme Court, in Ganesh Patel case (supra), observed that the application for recall of the order is maintainable when it is an application seeking a procedural review, and not a substantive review to which Section 362 of the Code of Criminal Procedure would be attracted.

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If I examine the facts of the instant case in the light of above observations made by the Supreme Court, it is clear that at the time of hearing on 8.2.2019, Counsel for the Petitioner/wife was not present before this Court nor was the Petitioner/wife herself present. Despite the fact that vakalatnama for the Petitioner/wife was filed on 12.8.2015 (Annexure P4), in the weekly cause list published for 4.2.2019 (Annexure P2), name of her Counsel was

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not mentioned and, therefore, the ex parte order was passed by this Court and the order passed by the Family Court granting monthly maintenance of Rs.10,000 to the Petitioner/wife was rejected observing that the Petitioner/wife is living separately at her own will without any reasonable cause. Because of non-mention of the name of the Counsel for the Petitioner/wife in the concerned cause list on the relevant date of hearing, the Counsel could not appear and the Petitioner/wife herself also did not appear before this Court and, therefore, there was no submission made on behalf of the Petitioner/wife and the ex parte order was passed and this has caused prejudice to her. Thus, I am of the considered view that the bar contained in Section 362 of the Code of Criminal Procedure does not apply to the present case and, therefore, the impugned order can be recalled on the ground of prejudice caused to the Petitioner/wife.

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Consequently, the instant petition is allowed and the impugned order dated 30.4.2019 is recalled. Registry is directed to list Criminal Revision No.575 of 2015 for further hearing before appropriate Bench.

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Sd/Arvind Singh Chandel ) JUDGE

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Gopal

Smt. Y. Meera Bai v. G. Venkat Giri Rao

Case brief

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What did the court decide?

Smt. Y. Meera Bai v. G. Venkat Giri Rao

Case brief

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