Gujarat High Court
Mohammad Iliyas Murtuza Malek vs State Of Gujarat & on 13 April, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2076/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (MAINTAINANCE) NO. 2076 of 2015
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MOHAMMAD ILIYAS MURTUZA MALEK....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR EE SAIYED, ADVOCATE for the Applicant(s) No. 1
MR NJ SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/04/2015
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicant has prayed for the following reliefs: "14(A) Your Lordships may be pleased to kindly quashed and set aside the order passed by the Ld. Principal Judge, Family Court @ Surat passed in Criminal Misc. Application No.549/2008 vide order dated 6/3/2009 in the interest of justice qua the petitioner.
(B) Pending admission and final disposal of this petition Your Lordships may be further pleased to kindly stay the implementation, execution and further initiatives/ proceedings of the order dated 6/3/2009 passed by the Ld. Principal Judge, Family Court @ Surat passed in Criminal Misc. Application No.549/2008 vide order dated 6/3/2009, particularly kindly consider the order passed the Hon'ble Court (Hon'ble Mr. Justice Anant S. Dave) in the interest of justice qua the petitioner.
(C) Any other prayer which may be deemed fit and proper may kindly be granted."
2. This is a case in which the fatherrespondent no.2 is praying for maintenance from his sonthe applicant herein. It appears that the Court below passed an order of maintenance. The order, which was passed wayback in the year 2009 came to be challenged before this Court by filing Special Criminal Application No.608 of 2009.
Page 1 of 5R/SCR.A/2076/2015 ORDER
3. On 02.04.2009, the following order was passed in Special Criminal Application No.608 of 2009.
"Learned counsel for the applicant submits that the applicant is the son of the first wife of respondent No.2. The mother of the applicant [first wife of respondent No.2] died on 15.7.2000. Thereafter, respondent No.2 married second time, got divorced, married third time and now stays with the third wife after retirement from Batliboi Company by rendering 20 years of service and having received provident fund to the tune of Rs.3 lakhs and respondent No.2 is still enjoying retiral benefits from the said company. In spite of the above, respondent No.2 claims maintenance from the applicant and the learned Principal Judge, Family Court, wrongly awarded monthly maintenance amount to respondent No.2.
Considering the above, Rule.
Adinterim relief in terms of paragraph 19(B).
Notice as to interim relief returnable on 12.5.2009 Direct service is permitted."
4. It appears that on 18.10.2013, the matter was taken up for final hearing and on that day, the following order was passed: "No one was present in the first round. The matter was kept back. Even in the second round, nobody is present on behalf of the petitioner though counsel for the State is present. It appears that petitioner is no more interested in pursuing the matter. Hence, matter stands dismissed for default. Interim relief, if any, stands vacated. Rule discharged."
5. Instead of filing an appropriate application for restoration of the Special Criminal Application No.608 of 2009, which came to be dismissed for default on 18.10.2013, a fresh application has been filed praying for quashing of the very same order, which was the subject matter of challenge in the earlier matter.
6. Mr. Saiyed has an apprehension in his mind that the criminal matter dismissed for default cannot be restored in exercise of inherent power under Section482 of the Code as that would amount to review of the order which is otherwise not permissible under Section362 of the Code.
7. I am afraid the apprehension is not wellfounded. This issue is no Page 2 of 5 R/SCR.A/2076/2015 ORDER longer resintegra. The learned Single Judge of this Court in the case of 'Ayubbhai Abdulbhai Shah Vs. Gabha Bechar' reported in 1994 (1) GLR 441 made the observations as under: "4. The question, therefore, required to be considered is whether the order of dismissal for default is a judgment or a final order ? The word judgment or final order is not defined anywhere in the Code. It is, therefore, required to be understood in light of the judicial pronouncements and in the background of the general law.
5. So far as the final order is concerned, it can well be understood when its antonym interlocutory order is understood. In this connection I will first refer to (Madhu Limaye v. State of Maharashtra AIR 1978 SC (47) 49 where referring to volume 22 of the third edition of Habbitry's Laws of England in para 12 of the judgment, it has been pointed out that an order which does not deal with the final rights of the parties but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure or (2) is made after judgment and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed 'interlocutory'.
6. By no stretch of imagination, it could be said that by dismissing a matter for default, final decision on matters in dispute has been given. It is certainly not a case where directions are given or declarations are made with regard to the implementation of judgment. It, therefore, remains to be merely a matter of procedure.
7. The aforesaid discussion from the Supreme Court decision read along with the reference to Halsbury's Laws of England makes it quite clear that the order dismissing the matter for default is not a decision on merits. The judgment in nothing if not a decision given by a competent Court on merits of a case in respect of a lis between the parties.
8. There are several authorities starting with (Jbrahim v. Emperor) AIR 1928 Rangoon 288 holding that order of dismissal for default can be reviewed inspite of Sec. 369 of the Code of Criminal Procedure, 1898. There it has been clearly held that 'judgment' contemplated by Sec. 369 is only a decision on merits. Dismissal for default of appearance therefore, is not a judgment and High Court has power to review dismissal order for default of appearance passed in its appellate jurisdiction.
9. On the same line is (Raju v. Emperor) AIR 1928 Lahore 462. The matter therein was decided with reference to Sec. 561 A and Sec. 369 of 1898 Code. It is held therein that the High Court has no inherent power to alter or review its own judgment except in case of default, for want of jurisdiction. To the absence of inherent power with regard to alteration or review of its own judgment, obviously there is a specific provision in the said Sec. 369 of 1898 Code corresponding to Sec. 362 of the new Code quoted hereinabove. In other words, the learned Judges of the Lahore High Court have adopted the same reasoning as adopted in Rangoon decision.
Page 3 of 5R/SCR.A/2076/2015 ORDER Dismissal for default not being a decision on merits, Sec. 369 corresponding to new Sec. 362 will not be a bar.
10. (In re Wasudev Narayan Phadnis) AIR 1950 Bombay 10 relates to a case before a Magistrate who in exercise of his power under Sec. 259 of 1898 Code had discharged the accused persons on account of the absence of the complainant pointing out that it did not amount to applying his mind to the evidence. In the case the Magistrate has done nothing else but resorted to the procedural consequence and therefore, it being not a judgment he can certainly review that order and restore the complaint. In the case before the learned Judges of the Bombay High Court the Magistrate while so doing had not issued notice to the accused that was termed as mere irregularity not vitiating the proceedings.
11. (Sahadeo & Ors. v. Jaganath Kashinath & Ors.) AIR 1950 Nagpur
77. In this decision, the learned Judges has taken the same view while dealing with a case under Secs. 369, 419 and 421 of 1898 Code. An appeal was dismissed for nonfiling of judgment copy. It was held to be a rejection and a dismissal of appeal and therefore, it was held that there is no bar to consider the appeal on merits. The case was therefore, remanded in revision. The reasoning was that the said order cannot be said to be a judgment within the meaning of Sec. 369.
12. (Madiah v. State of Mysore) AIR 1963 Mysore 191. In this decision with reference Sec. 369 and Sec. 561A of the Code of Criminal Procedure, it is held by the learned Judge of the Court that where a revision application was dismissed for default of appearance, Court can review its order, if necessary, to secure the ends of justice. Section 369 of 1898 Code is not held to be a bar.
13. The head note of a decision of Gauhati High Court reported in (Smt. Tulsi Devi v. Bhagat Ram} 1983 Cri.LJ 72 also indicates that Sec. 362 does contain the words 'save as otherwise provided by this Code or any other law for the time being in force. It does not take away the inherent power of the High Court. If a revision application is dismissed for default of appearance, it cannot be treated as a final order disposing of the case within the meaning of Sec. 362 and, therefore, that order can be set aside by the High Court under Sec. 482.
14. (Raghubans Prasad v. State) AIR 1961 Patna 397 : In this decision the learned single Judge of that Court has held that order of discharge is not a judgment within the meaning of Sec. 369 and can be reviewed by the trial Court even though not set aside by superior Court. The learned Judge has further pointed out in paras 3,10 and 13 of the judgment that in order to constitute a judgment within the meaning of Sec. 369, there must be an investigation on the merits of the case on evidence and after hearing the arguments, where, however the order is passed summarily without consideration of the entire evidence, as in the case of the order of discharge, it will not obviously amount to a judgment.
15. On the same line is one more decision of the High Court rendered by its Division Bench reported in (Ramballabh Jha v. State of Bihar) AIR Page 4 of 5 R/SCR.A/2076/2015 ORDER 1962 Patna 417. In that case, the name of the Counsel was not shown in the daily list of cases. The appeal came to be dismissed without the Counsel being heard. Referring to Secs. 561A, 369 and 421 of 1898 Code, the learned Judges were pleased to hold that the judgment can be set aside for rehearing under Sec. 561A holding that the judgment rendered in appeal was without any opportunity being given to the appellant or his Advocate within the meaning of Sec. 421 and it was liable to be set aside and appeal could be ordered to be reheard in exercise of power under Sec. 461 A.
16. The decision reported in (Rajendra Laldas Acharya v. State) 1993 (2) GLH 22 : (1993 (2) GLR 1259) is also on the same line wherein also the learned Judges have held that the right of rehearing, when the case was decided without giving an opportunity of hearing was accepted by the Supreme Court and by invoking the inherent powers by the High Court rehearing could be done.
17. Obviously, the aforesaid Patna decision is in keeping with the well known position of the administration of justice that an act of the Court shall not prejudice any party.
19. The result of the discussion so far is clearly to the effect that under the Old Code, the inherent powers reserved under Sec.561A corresponding to Sec. 482 of the New Code are always available in such a case. However, I would like to state here that Sec.362 of the Code will be attracted only and only if there is a final order as understood in contradistinction of the word "interlocutory" discussed above. With reference to the judgment also I definitely say that an order would be a judgment only if rights of the parties are decided after taking into consideration the entire material on record which will include oral evidence and documentary evidence, if any and all other materials that might have been placed on record.
20. Dismissing a matter for default being not an order of either of these 2 natures, obviously, there is no question of provisions of Sec. 362 coming in the way. The Court can certainly restore the same, if necessary, by invoking its inherent power under Sec.482."
8. In the aforesaid view of the matter, it shall be open for the applicant herein to file appropriate application with a prayer to restore the Special Criminal Application No.608 of 2009, which was ordered to be dismissed for default on 18.10.2013.
9. For the foregoing reasons, this application fails and is hereby rejected.
(J.B.PARDIWALA, J.) aruna Page 5 of 5