Allahabad High Court
Nanhey vs State Of U.P. And 4 Others on 16 September, 2022
Author: Ajai Tyagi
Bench: Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- APPLICATION U/S 482 No. - 10592 of 2022 Applicant :- Nanhey Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Purushottam Pandey Counsel for Opposite Party :- G.A. Hon'ble Ajai Tyagi,J.
This application u/s 482 Cr.P.C. has been filed seeking the quashing the part of the order dated 10.11.2021 by mean of cost of Rs.60,000/- in Misc. Case No.666 of 2020, arising out of Case No.339 of 2017, under Section 126(2) Cr.P.C., pending in the court of Principal Judge Family Court, Shahjahanpur.
Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
It is submitted by learned counsel for the applicant that applicant is husband of opposite party no.2. An application under Section 125 Cr.P.C. was filed by opposite party no.2 against the applicant for seeking maintenance. There was no service of notice upon the applicant in those proceedings due to which he could not appear before the court below and the application under Section 125 Cr.P.C. was decided ex parte, whereby maintenance of Rs.5,000/- has been awarded to the opposite party nos.2 to 5.
Contention of learned counsel for the applicant is that when the applicant received the notice of recovery amount of maintenance then he first time came to know about the proceedings and he appeared in court below without further delay. Applicant has moved an application under Section 126(2) Cr.P.C. for restoration. Although, the learned court below had allowed the restoration application, which was filed along with application under Section 5 of Limitation Act but the application is allowed subject to the cost of Rs.60,000/-, which is exemplary cost and beyond the means of applicant because applicant is just a labour and he cannot afford to pay such a huge amount of cost.
Subject matter in this application is with regard to huge cost of restoration only and there is no need to issue notice to opposite parties.
The application under Section 125 Cr.P.C. was decided on 14.01.2020, it is mentioned in the order that service of notice upon applicant was presumptive as the notice was sent by registered post and had not returned. It is next submitted that on 18.09.2020 the applicant received notice for recovery of maintenance amount and on 04.011.2020 he contacted his advocate. On 18.12.2020 restoration application under Section 126(2) Cr.P.C. along with application under Section 5 of Limitation Act was filed. There was three months limitation period, therefore, there was a delay of only seven months on the part of the applicant for which he is penalized with the exemplary cost of Rs.60,000/-.
Perusal of impugned order dated 10.11.2021 goes to show that learned court below has not assigned even a single reason for exemplary cost nor this fact is kept in mind that whether the applicant has financial capacity to pay exemplary cost to the tune of Rs.60,000/-. Without examining these aspects and without assigning any reason, the exemplary cost which can be said beyond the means of applicant has been imposed by the court below, therefore, the impugned order dated 10.11.2021 is unsustainable in the eye of law.
In view of the peculiar facts and circumstances of the case, the applicant is directed to deposit Rs.10,000/- towards cost instead of Rs.60,000/-. The impugned order dated 10.11.2021 is modified to the aforesaid extent.
With these observations, the application stands disposed of.
Order Date :- 16.9.2022 P.S.Parihar