Delhi District Court
All R/O Indra Nagar vs The State on 2 June, 2020
IN THE COURT OF MS. MANJUSHA WADHWA, ADDITIONAL
SESSIONS JUDGE-03, SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI.
Crl. (A) No. 81/2019
(1) Bhojraj
S/o Late Sh. Sarman Lal
(2) Sh. Moharshri (Mother in law)
W/o Late Sh. Sarman Lal
(3) Vijay Pal@Vijendra Singh (Jeth)
S/o Late Sh. Sarman Lal
(4) Smt Pushpa Devi (Jethani)
W/O Sh. Vijay Pal,
(5) Ved Pal (Jeth)
S/o Late Sh. Sarman Lal
(6) Somraj (Devar),
S/o Late Sh. Sarman Lal
(7) Mohan Pal (Devar)
S/o Late Sh. Sarman Lal
All R/o Indra Nagar,
Ram Nagar, Railway Phatak,
ITS Etawah, U.P. ....Appellants
Versus
1. The State
2. Smt. Jyoti Pal
D/O Sh. Bharat Singh,
House No. D-1/916, Gali No. 25,
C.A. No. 81/2019 Bhojraj & ors Vs State & anr Page no.1/8
Near Shukar Bazar,
20 Feet Road,
Harsh Vihar, Shahdara,
Delhi. ...Respondents
Date of assignment : 01.08.2018
Date of Arguments : 02.03.2020
Date of Pronouncement : 02.06.2020
Decision : Appeal allowed.
(During Lockdown Period)
JUDGMENT :
1. This is an appeal assailing impugned exparte judgment dated 19.04.2018 whereby the Ld. MM had allowed the DV petition No. 352/17 titled as Jyoti Pal Vs Bhojraj and ors.
2. At the outset, it is mentioned that the appellants had filed the revision petition which was treated as an appeal by the Ld. Predecessor of this Court vide order dated 19.12.2018. The appellants were respondents before the Ld. Trial Court and the respondent No. 2 herein was the petitioner before the Ld. Trial Court. The Ld. Trial Court did not proceed against the mediator Jay Singh(Respondent no. 9) on the premise that he was not in domestic relation with the respondent no. 2/petitioner and also dropped proceedings against Rajendri Devi (Respondent no. 8) as she had already expired as per DIR.
3. The appellants have filed the present appeal inter-alia on the ground that the notice was served upon the appellant no. 1 only and not on other appellants; appellant no. 1 appeared before the Ld. Trial Court C.A. No. 81/2019 Bhojraj & ors Vs State & anr Page no.2/8 and got ill on 25.07.2017 leading to his non-appearance on subsequent dates which led to passing of the final exparte judgment dated 19.04.2018 against the appellants. It is stated that non-appearance of the appellant no. 1 in the court on each and every date was neither intentional nor deliberate but due to chronic illness of liver damage and has also filed his health card as Annexure A-2.
4. It is further stated that the appellant no. 3 Vijaypal is working in Railways and is not living in shared house, so, his name has been falsely implicated in the present case. It is further stated that other appellants are also not residing under the same roof but are living separately at different places at Etawah, U.P. and no case is made out against them. It is thus stated that appellants no. 2 to 7 were not aware of present proceedings and thus impugned order is liable to be set aside.
5. It is further stated that Appellants came to know of passing of the impugned order dated 19.04.2018 when the appellant no. 1 received notice of appearance around 25.06.2018 in Crl Ex Pet No. 148/2018. It is also stated that appellant no. 2 is housewife; appellant no. 3 is working in railways; other appellants are either unemployed or doing agriculture labour work in village. It is also plea of the appellant no. 1 that he has no assets as well as source of income to pay Rs. 15,000/- per month and compensation amount to the Respondent no. 2, in addition to Rs. 2,00,000/- each to be paid by the other respondents.
6. Reply to the present appeal was filed whereby the respondent no. 2 has inter-alia stated that the appellant no. 1 had appeared before Ld. Family Judge at Etawah(U.P.) on each and every occasion when the matter was listed before the said court and has given C.A. No. 81/2019 Bhojraj & ors Vs State & anr Page no.3/8 false/fabricated reason of his illness in the present appeal to justify his non-appearance before the Ld. Trial Court.
7. Ld. Counsel for the appellants has argued based on grounds raised in the appeal. On the other side, Ld. Counsel for the respondent No. 2 contended that the impugned order passed by the ld. Trial Court is based on correct appreciation of facts and is liable to be sustained on facts.
8. Heard and perused the record.
9. The ld. Trial Court has observed that there are not only clear allegations of domestic violence against appellant nos. 1 to 7 but as per DIR, they also resided in the same house as that of the respondent no. 2/petitioner. The Ld. Trial court further observed that as per income and asset affidavit of the appellant no. 1, he is only 12 th pass and is jobless at present whereas the respondent no. 2 claimed a monthly maintenance of Rs. 20,000/- from Appellant no. 1 stating his earning as Rs. 50,000/- per month. The ld. Trial Court on the basis of unrebutted testimony of the Respondent no. 2/petitioner directed the appellant no. 1 to pay a sum of Rs. 15,000/- per month as maintenance from the date of filing of petition. Further, Ld. Trial Court granted protection order to the respondent no. 2/petitioner u/s 18 PWDV Act, 2005; ld. Trial court also granted liberty to the respondent no. 2/petitioner to re-enter matrimonial house and reside with her husband or if she is unable to enter the matrimonial home for reasons beyond her control, the appellant no. 1 was directed to secure similar alternate accommodation and pay rent not exceeding Rs. 5,000/- per month; ld. Trial Court also directed the appellant no. 2 to 7 to pay a compensation of Rs. 2 lakh each and directed the appellant no. 1 to pay a sum of Rs. 8 lakh to the respondent no. 2/petitioner.
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10. The foremost contention of the appellants is that except appellant no. 1, other appellants had not received notice of petition and thus they remained unrepresented and the appellant no. 1 stopped appearing due to his sickness which led to passing of impugned exparte judgment dated 19.04.2018.
11. Perusal of Trial court record shows that vide order dated 11.04.2017, summons were directed to be issued to the appellant no. 1(husband) only with the observation that summoning of other appellants shall be decided after considering the domestic incident report. As per record, the appellant No. 1 received summons on 29.04.2017, pursuant to which he entered appearance on 03.05.2017. On 03.05.2017, directions were issued to the appellant no. 1 to file written statement along with income affidavit with advance copy to the opposite party and matter was fixed for hearing on interim maintenance application for 11.05.2017. On the said date, written statement along with income affidavit was filed by the appellant no. 1 with a copy to the other side and the matter was fixed for 12.07.2017 for arguments on the aforesaid application. On 12.07.2017, Ld MM was on leave and the matter was put up for further proceedings for 13.09.2017. On the said date, file was transferred to another court where appellant no. 1 did not enter appearance and court notice was issued to all the appellants through SHO PS concerned for 23.10.2017. Said court notice was served upon the appellant no. 1 and appellant no. 7 Mohanpal. However, neither appellant no. 1 nor appellant no. 7 Mohanpal entered appearance before the Ld. MM on 23.10.2017 and on subsequent dates which led to passing of the exparte order dated 18.11.2017 and impugned exparte judgment dated 19.04.2018.
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12. It is worthwhile to mention herein that while passing of exparte order dated 18.11.2017, Ld Trial Court observed that appellants are deliberately avoiding their presence before the court despite being well aware of the pending court proceedings and also observed that summons issued to them have been received back as served. As already stated hereinabove, court notice was served on the appellant no. 1 and appellant no. 7 Mohanpal. Indeed, there is only one court notice on trial court record which is in the name of appellant no. 1, however, same bears initial of appellant no. 7 Mohanpal also.
13. Perusal of trial court proceedings makes it apparent that summons were never issued against the appellants no. 2 to 7 and therefore no order against them could have been passed by the ld. Trial court. Order dated 13.09.2017 of issuance of court notice to the appellants by the Ld MM, on receipt of file from another court, is mechanical order as it was passed without application of mind and without noting that summons were never issued to the said appellants in the first instance. Even otherwise, court notice lying on record is in the name of appellant no. 1 only. In view of such court proceedings, ex parte order dated 18.11.2017 passed against the said appellants is not legally sustainable. Insofar as the appellant no. 1 is concerned, he has taken a plea that he was suffering from chronic liver problem since 25.07.2017 which led to his non-appearance on subsequent dates resulting into passing of impugned exparte judgment dated 19.04.2018. His plea of illness has been strongly refuted by the respondent no. 1/petitioner on the ground that he intentionally did not appear to delay the proceedings. It appears that appellant no. 1 was not diligent in pursuing the matter before the Ld. Trial court.
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14. It is also peculiar in this case that the summons were not ordered to be issued against the appellants no. 2 to 7 and the court notice issued subsequently to them was also ministerial in nature as the same was passed on transfer of file by subsequent Trial Court. In other words, judicial mind was not applied while issuing court notice to the said appellants. Therefore, impugned order against other appellants is not legally justifiable and sustainable. Thus, hearing is required to be given to the appellants no. 2 to 7. It is also noticed from the perusal of the petition that the respondent no. 2/Petitioner has claimed inseparable reliefs against all the appellants/respondents pleading that all of them have committed acts of domestic violence against her. In such factual backdrop of the case, it would not be practically feasible to set aside the impugned judgment against the appellants no. 2 to 7 only as the same may result into inconsistent judgment later, moreso keeping in view that the impugned judgment is exparte against all the appellants. Reliance is placed on the judgment of Hon'ble Division Bench of our own Delhi High Court passed in Mehta Brothers and Others. Versus Bank of India and another (2001) 57 DRJ 167 (DB). Even otherwise, to balance equity, it is in the fitness of things that appellant no. 1 should get one more opportunity to put forth his defence. It is also settled law that every litigant should get ample opportunity to defend his case but the same should not be at the cost of the other side.
15. In view of foregoing discussion, the impugned exparte judgment dated 19.04.2018 and all preceding exparte proceedings are set aside against all the appellants, however, grant of said relief qua the appellant no. 1 is subject to payment of cost of Rs. 10,000/- to the respondent no. 2. The appellant no. 1 is also directed to pay an amount of Rs. 10,000/- per month to the respondent no. 2/petitioner from the C.A. No. 81/2019 Bhojraj & ors Vs State & anr Page no.7/8 date of filing of petition as an interim measure till the application under section 23 PWDV Act, 2005 is decided by the ld. Trial Court. The ld. Trial court shall not be influenced with the award of aforesaid amount of Rs. 10,000/- directed to be paid by this court as an interim measure, while deciding application for interim maintenance or even otherwise. In other words, ld. Trial Court shall assess the interim maintenance after hearing both the parties. Parties are directed to appear before the Ld. Trial Court on 17.06.2020. Copy of this order alongwith TCR be sent to the Ld. Trial Court. File be consigned to record room.
Announced through Cisco Webex (Manjusha Wadhwa)
today on 02.06.2020 Additional Sessions Judge-03
Shahdara District,
Karkardooma Courts, Delhi.
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