Delhi District Court
Through His Attorney Smt. Karnail Kaur vs Smt. Mandeep Kaur on 24 April, 2009
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IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(NORTH-WEST)-04, ROHINI:DELHI
(Crl. Revision No. : 79/08)
CC No. : 1362/1/2006
U/s : 125 Cr. P.C
P.S. : Shalimar Bagh
Sh. Virender Singh Jhandi
S/o Late Sh. Malkiat Singh Jhandi
R/o 6425, West Heimer, Houston, Texas 77057 (USA)
Through his Attorney Smt. Karnail Kaur,
R/o E-61, Arjun Nagar, Safdarjung Enclave,
New Delhi-110008 ... Petitioner
Vs.
Smt. Mandeep Kaur
D/o Sh. P.S. Panno
R/o AP 18-D, Maurya Enclave,
Pitam Pura, Delhi-110088 ... Respondent
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ORDER
The present revision petition has been filed on behalf of the petitioner - Sh.Virender Singh Jhandi against the impugned order dated 10.11.2008 passed by the Ld. Trial Court in case bearing CC No.1362/1/06 titled as 'Virender Singh Jhandi Vs. Mandeep Kaur,' whereby the petitioner's application u/s 126 (2) Cr. PC for setting aside the exparte judgment dated 23.2.2004 for maintenance and restoration of application for setting aside the exparte order has been dismissed by the Ld. Trial Court.
2. Brief facts necessary for the disposal of the present revision-petition are that the petitioner Mandeep Kaur (respondent herein) filed a petition u/s 125 Cr.PC before the Ld. Trial Court for grant of maintenance against the respondent Virender Singh Jhandi (petitioner herein) and in the said petition, the respondent Virender Singh Jhandi (petitioner herein) was proceeded against exparte vide order dated 5.7.2002 passed by the Ld. Trial Court. Thereafter, an application u/o 9 rule 7 CPC for setting aside the aforesaid exparte order dated 5.7.2002 was moved by the respondent and the said application was dismissed in default vide 3 order 13.2.2004 passed by the Ld. Trial Court. On 23.2.2004, the exparte order of maintenance was passed, whereby the Ld. Trial Court fixed the maintenance @ Rs.10,000/- p.m to the petitioner from the date of filing of the said application/petition u/s 125 Cr. P.C. Aggrieved by the aforesaid order dated 23.2.2004, the respondent (petitioner herein) moved an application u/s 126 (2) Cr. P.C before the Ld.Trial Court for setting aside the aforesaid exparte order dated 23.2.2004 for maintenance. The said application u/s 126 (2) Cr. P. C moved on behalf of the respondent ( petitioner herein ) was dismissed by the Ld. Trial Court vide order dated 10.11.2008, which resulted in filing of the present revision- petition.
3. Upon filing of the present revision-petition, the notice was issued to the respondent and TCR was also summoned. The respondent entered her appearance and filed a Brief Reply to the revision-petition. TCR has also been received.
4. I have heard the arguments put forward by the Ld. Counsel for the 4 petitioner and the respondent and have carefully gone through the record of the case.
5. It has been submitted by the Ld. Counsel for the petitioner that the order dated 10.11.2008 passed by the Ld. Trial Court is patently illegal, against the law, facts and material on record. It is further submitted that Ld. Trial Court committed a grave error in giving the findings in the impugned order that the petitioner has failed to show any 'good cause' for setting aside the exparte judgment of maintenance dated 23.2.2004. It is also submitted that the impugned order passed by the Ld. Trial Court itself is self-contradictory as in the one part of the order, it has been stated that the fact that the applicant/JD was residing at USA is not in dispute, whereas later on, a finding has been given that the petitioner was duly served as the notice was issued at the address mentioned in the petition. It is stated that the Ld. Trial Court totally over-looked the procedure laid down in law for the service of the parties residing abroad and the Ld. Trial Court should have followed the said procedure before proceeding exparte against the petitioner herein.
It has been submitted that no summons of the petition u/s 125 Cr. P.C 5 was ever served or tendered to the petitioner's mother either by the process server or postman so the question of receiving the summons by her does not arise and the Ld. Trial Court should have given an opportunity to the parties to prove their respective cases regarding the service of the parties on record. It is further submitted that neither the affidavit of the process server nor of the postman was taken by the Ld. Trial Court before proceeding exparte against the petitioner. It is also submitted that no independent witness was produced by the respondent before the Ld. Trial Court to prove that the summons were tendered or served upon the petitioner or his mother. It is submitted that the Ld. Trial Court erred in observing that the petitioner intentionally did not disclose his residential address of the USA and that the address of the petitioner's attorney is the same address as given in support of the application u/o 9 rule 7 CPC and therefore he cannot be allowed to plead ignorance with regard to the pendency of the maintenance proceedings. It is further submitted that the Ld. Trial Court has committed error in holding that the applicant/JD (petitioner herein) was willfully avoiding the service of the summons personally upon him and neglected to attend the court. It is also submitted that the impugned order is liable to be set aside as the Ld. Trial 6 Court proceeded exparte against the petitioner without satisfying itself with regard to any of the conditions specified u/s 126 (2) Cr. P.C. It has been further submitted that since the petitioner was living permanently and working abroad, the personal knowledge about the exparte proceedings could not have been imputed to him. It is submitted that the Ld. Trial Court has not properly appreciated the applicability of the case law relied upon by the petitioner and failed to consider that the petitioner has shown good cause for his non appearance on the relevant date (s). It is also submitted that the application u/o 9 rule 7 CPC moved by the petitioner was dismissed on account of negligence of his earlier counsel, who failed to appear before the Ld. Trial Court on the relevant date (s). It is submitted that the petitioner was under the impression that his counsel will appear and look after the matter before the Ld. Trial Court. It is further submitted that the petitioner should not be made to suffer on account of negligence on the part of his earlier counsel. It is also submitted that the impugned order passed by the Ld. Trial Court is based on conjecture and surmises and is not sustainable in law and it has been prayed that the impugned order dated 10.11.2008 passed by the Ld. Trial Court may be set 7 aside and the petitioner may be permitted to contest the petition of the respondent u/s 125 Cr. PC on merits.
In support of his contentions, ld. Counsel for the petitioner has relied upon the case law cited as 1985 (2) HLR 669, 1989 RLR (NSC) 41, 2008 RLR 124, 1994 (2) HLR 412, 2004 Cr. LJ 4330, 2007 (NOC) 991 (All), 1992 Cr. L.J 2003, 1978 MLR 315, 1972 Cr. L.J 93, 1993 Cr. L.J 1892, AIR 2002 SC 2370, AIR 2005 SC 3353, AIR 2006 ( J & K) 54, AIHC 2005 199, 2004 DRJ (VOL.75) 39 and 2003 ( VOL.I) DMC 731.
6. On the other hand, it has been submitted by the Ld. Counsel for the respondent that there is no illegality or irregularity in the impugned order dated dated 10.11.2008 passed by the Ld. Trial Court. It is submitted that the impugned order is well reasoned and it has been rightly held by the Ld. Trial Court that the petitioner herein was properly served with the notice of the petition u/s 125 Cr. PC. It is also submitted that the petitioner was resident of E-61, Arjun Nagar, Safdarjung Enclave, New Delhi and the petitioner's mother is still residing at the said address and the petitioner's mother had been prosecuting 8 and defending all the legal proceedings on behalf of the petitioner in his absence and all the legal proceedings between the parties have the same address of the respondent as has been mentioned on behalf of the petitioner in the petition u/s - 125 Cr.PC. It is submitted that the petitioner's mother is having cordial relations with the petitioner and she had been dependent upon the petitioner only. It is further submitted that the petitioner had nowhere provided his USA address before filing of the application u/o 9 rule 7 CPC and his whereabouts were not even provided by his employer in the criminal proceedings u/s 406/498-A/34 IPC registered at PS Shalimar Bagh against the petitioner, wherein he has been declared as 'Proclaimed Offender'.
It has been submitted that the petitioner has been trying right from the very beginning to avoid legal process and even during the pendency of anticipatory bail application before the Ld. ASJ, Delhi, the petitioner (applicant/accused therein ) absconded and the Ld. ASJ was constrained to observe that the petitioner in active connivance with other people was out of defeat the due process of law and as such was not entitled to any relief. It is further submitted that the petitioner also did not appear before the Matrimonial 9 Court and the divorce petition filed by him was dismissed for non-prosecution. It is also submitted that the petitioner has not still provided his correct address as the petitioner is not residing in USA and is in fact residing at Ontario, Canada as is evident from the notice of divorce petition received by the petitioner from the Court at Ontario, Canada It is also submitted that the petitioner also did not put his appearance before the Hon'ble High Court of Delhi in petition bearing No. C.M. (M) 1562/05 despite his service and accordingly the Hon'ble High Court proceeded exparte against the petitioner.
It has been submitted that the petitioner has been protracting the litigation due malafide intention and ulterior motives and has been negligent and callous in not accepting and rather refusing the summons sent by the Ld. Trial Court. It is submitted that the petitioner despite being aware of the exparte proceedings on 1.9.2003 chose to file the application only on 28.10.2003 and even in the said proceedings there has been no appearance on behalf of the petitioner and the said proceedings were being pursued by the petitioner's mother who had earlier refused to accept the summons sent by the Ld. Trial Court to the petitioner's Delhi address. It is further submitted that the petitioner is wrongly 10 blaming his earlier counsel for the dismissal of his application u/o 9 rule 7 CPC, although it was the petitioner himself who was negligent and callous in pursuing his application before the Trial Court. It is also submitted that no sufficient or good cause have been shown by the petitioner for setting aside the exparte judgment dated 23.2.2004 and exparte order 5.7.2002 and as such his application u/s-126 ( 2) Cr. PC has been rightly dismissed by the ld. Trial Court. It has been submitted that the impugned order dated 10.11.2008 passed by the Ld. Trial Court does not suffer from any infirmity and it has been prayed that the present revision-petition filed on behalf of the petitioner may be dismissed.
In support of his contentions, ld. Counsel for the respondent has relied upon the case law cited as 1999 AIHC 495, 89 (2001) DLT 675, AIR 2003 Delhi 351 and 115 (2004) DLT 154.
7. I have carefully considered the submissions made on behalf of the petitioner and the respondent and have carefully gone through the record of the case. I have also carefully perused the TCR and the case law relied upon by the Ld. Counsels for the petitioner and respondent.
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8. The present revision-petition have been filed on behalf of the petitioner against the impugned order dated 10.11.2008 passed by the ld. Trial Court, whereby the petitioner's application u/s 126 Cr. PC for setting aside the exparte oder dated 23.3.2004 for maintenance and restoration of the application for setting aside the exparte order has been dismissed by the ld. Trial Court.
9. It has been submitted on behalf of the petitioner that the order dated 10.11.2008 passed by the ld. Trial court is patently illegal and the ld. Trial Court committed a grave error in giving the finding that the petitioner has failed to show any 'good cause' for setting aside the exparte judgment of maintenance dated 23.2.2004. It is further submitted the ld. Trial Court erred in giving finding that the petitioner was duly served as the notice was issued at the address mentioned in the petition although the petitioner has been residing in USA. It is also submitted that no summons of the petition u/s 125 Cr. P.C was ever served or tendered to the petitioner's mother either by the process server or postman and neither the affidavits nor statements of the said process server or postman were 12 taken by the ld. Trial Court before proceedings exparte against the petitioner, however the above submissions made on behalf of the petitioner are devoid of any merits and are contrary to the record as the perusal of the impugned order shows that ld. Trial Court has properly dealt with the various contentions raised on behalf of the petitioner herein and have come to the just and reasonable conclusions on the basis of the material available on record . In the instant case the perusal of the record reveals that all the litigations by or against the petitioner are being prosecuted or defended by his mother/attorney Smt. Karnail Kaur and even the present revision petition have been filed on behalf of the petitioner by his said attorney/ mother Smt. Karnail Kaur, who is admittedly the resident of E-61, Arjun Nagar, Safdarjung Enclave New Delhi at which address the notice of the petition u/s 125 Cr. PC was sent by the ld.Trial Court. It has been submitted on behalf of the petitioner that he should have been served of the summons of the petition u/s 125 Cr. PC at his address in USA, however the perusal of the record shows that he has chosen not to disclose his USA address in any of the litigation pending between the parties prior to the filing of the application u/s 9 rule 7 CPC before the ld. Trial Court. It is being argued on behalf of the petitioner that he is working and residing in USA and as such he 13 should have been served at his address in USA, whereas it has been submitted on behalf of the respondent that she has received a notice of divorce petition from the Court at Ontario, Canada, which implies that the petitioner is residing at Canada and is not residing in USA , although he has harping that he should have been served at his address of USA. This means that the petitioner is not willing to disclose his correct whereabouts as even in the present revision- petition he has mentioned the address of USA in addition to his Delhi address, although he is residing at Ontario, Canada as is evident from the notice of divorce petition received by the respondent from the Court at Ontario, Canada. In addition to this, the perusal of the record reveals that the applicant/accused also moved an application for anticipatory bail before the court of ld. ASJ, Delhi and even in the said proceedings, he played hide and seek with the court and absconded from India without complying with the directions given by the ld. ASJ, who was constrained to observe that the petitioner in active connivance with other people was out of defeat the due process of law and as such was not entitled to any relief and accordingly his application for anticipatory bail was dismissed. Further, it has also been submitted on behalf of the respondent that the petitioner has been evading arrest and has absconded in 14 the case bearing FIR No. 302/02 u/s 406/498A/34 IPC, P.S Shalimar Bagh, wherein he is reported to have been declared "Proclaimed Offender". In these circumstances, it has been rightly observed by the ld. Trial Court that the plea of the applicant/JD ( petitioner herein) that service of the summons upon him at his Delhi address and not at USA address is not valid service is devoid of any merits as in the various litigations between the parties, the applicant/JD has mentioned his address as E-61, Arjun Nagar, Safdarjung Enclave, New Delhi where the summons of the proceedings u/s 125 Cr. PC were sent and the service was effected upon him through his mother/attorney Smt. Karnail Kaur, who has been prosecuting/defending all the litigation for and against the petitioner and as such it has been rightly held by the ld.Trial Court that the applicant/JD (petitioner herein ) could not be allowed to plead ignorance with regard to the pendency of the maintenance proceedings, wherein the service have been duly effected upon him through his mother/attorney.
Ld. Counsel for the petitioner has relied upon the case law cited as 1985 (2) HLR 669, 1994 (2) HLR 412, 2007 (NOC) 991 (All), 1992 Cr. L.J 2003, 1978 MLR 315, 1972 Cr. L.J 93, 1993 Cr. L.J 1892, AIR 2002 SC 2370, AIR 2005 SC 3353, AIR 2006 ( J & K) 54, AIHC 2005 199, 2004 DRJ 15 (VOL.75) 39 and 2003 ( VOL.I) DMC 731, however the said case law is not applicable in the present case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed in the said case law and in my considered opinion, the aforesaid case law is not of any help to the petitioner as in the present case, from the material on record, it is clear that the service was duly effected upon the petitioner ( respondent therein) through his mother/attorney in the petition u/s-125 Cr. PC and despite sufficient service, the petitioner has been negligent and callous in defending the petition u/s-125 Cr. PC filed on behalf of the respondent herein before the ld. Trial Court. The callousness on the part of petitioner is also evident from the fact that even his application u/o - 9 rule-7 CPC for setting aside exparte order was dismissed in default, although he was expected to be extra vigilant in the prosecution of the said application in the fact and circumstances of the instant case.
10. It has been further submitted on behalf of the petitioner that application u/o 9 rule 7 CPC moved by the petitioner was dismissed on account of negligence of his earlier counsel, who failed to appear before the Ld. Trial 16 Court on the relevant date (s). It is submitted that the petitioner was under the impression that his counsel will appear and look after the matter before the Ld. Trial Court. It is further submitted that the petitioner should not be made to suffer on account of negligence on the part of his earlier counsel, however the said submissions made on behalf of the petitioner are devoid of any merits and are contrary to the record as from the material on record, it is clear that the petitioner has not exercised due diligence in pursuing his case before the ld. Trial Court. In this regard, it has been rightly observed by the ld. Trial Court that after becoming aware of the exparte order dated 05.7. 2002, it was expected of the petitioner to be more vigilant to keep a track of the application u/o 9 rule 7 CPC moved by him for setting aside the exparte order.
In the case titled as "Ishraul Haque Ansari Vs. M.C.D. & Ors"
(cited as 140 (2007) DLT 133), it has been laid down by the Hon'ble High Court of Delhi that :
" While it is not denied that the workman should not suffer for the non-appearance of his Counsel, it can also not be overlooked that while recalling the order for setting aside an exparte award, the 17 conduct of both, the petitioner as also his Counsel, has to be seen. Merely because the petitioner engaged a Counsel to conduct his matter is not a sufficient ground for him to sit back complacently without following up his case diligently. To simply blame the Counsel and claim that it was only on account of his negligence that the petitioner could not prosecute his matter properly is not a sufficient ground to seek relief, as claimed in the present petition. A party is expected to pursue the case diligently once it has been filed in the Court".
Further in the case titled as "Badri Bhagat Jhandewalan Temple Society & Ors. Vs. DDA" (cited as AIR 2003 Delhi 351), it has been laid down by the Hon'ble High Court of Delhi that :
"Instant case is wholly on sticky wicket. Negligence of a lawyer in not appearing on one or two date (s) of hearing is understandable and aggrieved party can 18 take advantage of such a negligence. But where the negligence and conduct of the party is of highest magnitude and is writ large, the party cannot take shelter behind its Advocate. If a party does not care to know about the status of its case or proceedings in the suit for the years together when in the past hearing were fixed after a month, two month or so, such a party has to be shown the door and denied the discretion to set aside the exparte proceedings or judgment passed against it."
In the case titled as "Gobind Parshad Jagdish Parshad Vs. Hari Shankar & Ors." (cited as 89 (2001) DLT 675), it has been held by the Hon'ble High Court of Delhi that :
"It has become epidemic for parties to cast the blame on their lawyer since in some cases relief has been granted on this ground. No complaint against the previous Counsel appears to have been 19 filed before the Bar Council. The Court must assume, in the absence of such a complaint, that the default ascribed to the Advocate is a make-belief. The negligence of the respondents, whether intended or accidental, is writ large in the present case".
In view of the above, it is clear that merely because petitioner has engaged a counsel to conduct his matter is not a sufficient ground for him to sit back complacently without following up his case diligently. In the instant case, negligence in conduct of the petitioner is of high magnitude and the same is apparent from the record itself and as such the petitioner cannot take shelter behind his advocate. Further, no complaint against the previous counsel appears to have filed by the petitioner and in the absence of such a complaint, the default attributed to the Advocate has to be assumed as make belief and the petitioner cannot escape his responsibility by simply putting the blame upon his earlier counsel.
Ld. counsel for the petitioner has relied upon the case law cited as 20 1989 RLR (NSC) 41, 2008 RLR 124 and 2004 Crl. L.J 4330, however the said case law is not applicable as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed therein and in my considered opinion, the aforesaid case law is not of any use to the petitioner in the present case in view of the law laid down in the aforesaid cases cited as 140 (2007) DLT 133 , AIR 2003 Delhi 351 & 89 (2001) DLT 675.
11. It has been submitted on behalf of the petitioner that the order dated 10.11.2008 passed by the Ld. Trial Court is patently illegal, against the law, facts and material on record. It is further submitted that the impugned order passed by the Ld. Trial Court is based on conjecture and surmises and is not sustainable in law, however the said contentions put forward on behalf of the petitioner are devoid of any merits and are contrary to the record as perusal of the impugned order reveals that it has been passed on the basis of the proper appreciation of the material on record and is based upon the sound, cogent and just reasoning.
12. Thus, in view of the above discussion and observations and having 21 regard to the fact and circumstances of the present case, I am of the considered opinion that there is no illegality or infirmity in the impugned order dated 10.11.2008 passed by the Ld. Trial Court in case bearing CC No.1362/1/06 titled as 'Virender Singh Jhandi Vs. Mandeep Kaur,' Accordingly, the present revision- petition filed on behalf of the petitioner against the aforesaid impugned order dated 10.11.2008 is hereby dismissed.
TCR alongwith copy of this order be sent back to the ld. Trial Court.
Revision file be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 24.04.2009) Addl. Session Judge
(North-West)-04
Rohini/Delhi
22
CR No. : 79/08
24.04.2009
Present: None.
Vide separate order, announced in the open court, the present revision-petition filed on behalf of the petitioner against the impugned order dated 10.11.2008 passed by the ld. Trial Court has been dismissed.
TCR alongwith copy of this order be sent back to the ld. Trial Court.
Revision file be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 24.04.2009) Addl. Session Judge
(North-West)-04
Rohini/Delhi
23