Delhi District Court
Mayank Gupta & Another vs . Divya Gupta on 17 November, 2020
IN THE COURT OF MS. NEENA BANSAL KRISHNA:
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH - EAST, SAKET COURTS, NEW DELHI
CR No. 118/2020
MAYANK GUPTA & ANOTHER VS. DIVYA GUPTA
1. Sh. Mayank Gupta, Aged 35 years
S/o Sh. Giriraj Kishore Gupta
R/o: House No. F-6, SFS
7th B Cross Yelahanka, Bengaluru,
Karnataka - 560064
(Mobile No. 9591452363) .......... Revisionist/Respondent No. 1
2. Sh. Giriraj Kishore Gupta
S/o Late Sh. Lakshmi Narayan Gupta
R/o: House No. F-6, SFS
7th B Cross Yelahanka, Bengaluru,
Karnataka - 560064 .......... Revisionist/Respondent No. 2
VERSUS
Ms. Divya Gupta W/o Sh. Mayank Gupta
D/o Sh. Pradeep Gupta
R/o: B-46, Flat No. 207,
Lal Kuan, Vishwakarma Colony,
M. B. Road, Badarpur, Jaitpur,
New Delhi - 110044 .......... Respondent/Complainant
Date of filing : 07.03.2020
Arguments heard : 11.11.2020
Order pronounced : 17.11.2020
ORDER:
1. The present Criminal Revision Petition under Section 397 Cr. P. C. has been filed by the Revisionists/Respondents against the Order dated CR No. 118/2020 MAYANK GUPTA & ANOTHER VS. DIVYA GUPTA Page No. 1 of 6 07.02.2020 vide which Ld. Metropolitan Magistrate declined to waive the cost of Rs. 2,000/- and Rs. 5,000/-, which were imposed vide orders dated 01.07.2019 and 26.09.2019.
2. It is submitted in the Revision Petition that the Respondent/Complainant had filed a complaint under Section 12 alongwith an application under Section 23 of the Domestic Violence Act (hereinafter referred as D. V. Act) on 26.09.2018. The summons were received by the Revisionists/ Respondents and they appeared before Ld. Metropolitan Magistrate on 15.02.2019 through counsel. The Revisionists/Respondents were directed on 15.02.2019 to file written statement within 30 days failing which cost of Rs. 2,000/- on each of the Revisionists/Respondents was payable and the matter was adjourned for 01.07.2019. On 01.07.2019 neither the written statement nor the affidavit of income was filed by the Revisionists/Respondents; rather a plea was taken that translation of Page No. 3 & 4 were not provided to them by the Respondent/ Complainant. The Ld. Metropolitan Magistrate accepted the explanation and granted time to the Revisionists/Respondents to file the written statement, but imposed a cost of Rs. 2,000/- on Revisionist/Respondent No. 1 on the ground of non-filing of the Income Affidavit (IA) with the directions to file affidavit within 30 days and the matter was adjourned to 26.09.2019. Again on the said date i.e. 26.09.2019, the Revisionists/ Respondents failed to file the Income Affidavit because of which the arguments on interim maintenance could not be heard and Ld. Metropolitan Magistrate imposed additional cost of Rs. 5,000/- on the Revisionists/Respondents. It is submitted that Revisionists/ CR No. 118/2020 MAYANK GUPTA & ANOTHER VS. DIVYA GUPTA Page No. 2 of 6 Respondents have been making every possible efforts to complete the proceedings, but it is the Respondent/Complainant who has been delaying the filing of Income Affidavit and consequently disposal to interim maintenance. The imposition of cost of Rs. 5,000/- by the Ld. Metropolitan Magistrate on 26.09.2019 on account of delay in filing of Income Affidavit by the Revisionists/Respondents is highly illogical since cost is not on account of non-filing of Income Affidavit but on account of delayed filing of the Income Affidavit.
3. It is submitted that an application was moved on behalf of the Revisionists/ Respondents for waiver of the cost imposed on them on three dates. The Ld. Metropolitan Magistrate vide the impugned order dated 07.02.2020 had waived off the cost of Rs. 2,000/- that was imposed on 15.02.2019, but has refused to waive the cost of Rs. 2,000/- that was imposed on 01.07.2019 and cost of Rs. 5,000/- that was imposed on 26.09.2019. It is prayed that the impugned order may be set- aside and the costs imposed by the Ld. Metropolitan Magistrate may be waived.
4. The Respondent/Complainant has given the detailed reply wherein it is submitted that Ld. Metropolitan Magistrate has rightly observed that on account of non-filing of the written statement and Income Affidavit by the Revisionists/Respondents, arguments on the application of interim maintenance, filed by the Respondent/Complainant has been delayed and has rightly imposed the cost. Moreover, it has been wrongly claimed that the Income Affidavit has not been filed by the Revisionists/Respondents till 07.02.2020, whilst the Income Affidavit of the Revisionists/ CR No. 118/2020 MAYANK GUPTA & ANOTHER VS. DIVYA GUPTA Page No. 3 of 6 Respondents had been filed in the year 2019 itself. It is further submitted that there is no illegality in the impugned order and the present Revision Petition is liable to be dismissed.
5. I have heard the arguments and perused the record. My observations are as under:
6. The Petition under Section 12 alongwith an application for interim maintenance under Section 23 of the D. V. Act was filed in the Court on 26.09.2018 and the Revisionists/Respondents were summoned. Both the Revisionists/Respondents put their appearance through their counsel and vide order dated 15.02.2019 30 days time was given for filing the written statement and Income Affidavit, failing which cost of Rs. 2,000/- would be imposed on the Revisionists/Respondents. Ld. Metropolitan Magistrate vide the impugned order dated 07.02.2020 had waived off the cost of Rs. 2,000/- imposed vide order dated 15.02.2019 on account of non-filing of the written statement and Income Affidavit within 30 days by the Revisionists/Respondents.
7. On the next date i.e. 01.07.2019 the written submission was given for non-filing of the Income Affidavit and the written statement, but the Court considered the submissions that translation Page No. 3 & 4, which was not provided. Even though it formed part of list of documents as on Page No. 5 & 6, but the same was not specified and hence further time was granted for filing of written statement and no cost was imposed on account of non-filing of the written statement and further time of 30 days was given for filing of written statement. However, it was noted that the Income Affidavit was also not filed by the Revisionist/Respondent No. 1 CR No. 118/2020 MAYANK GUPTA & ANOTHER VS. DIVYA GUPTA Page No. 4 of 6 for which there was no explanation and thus, cost of Rs. 2,000/- was imposed upon the Revisionist/Respondent No. 1 on account of non-filing of the Income Affidavit. The reason for imposing cost was on account of non-filing of the Income Affidavit, the interim application for maintenance was getting delayed. However, once time was granted for filing the written statement on the said date, the Ld. Metropolitan Magistrate could not have heard the arguments on the interim maintenance application. More so, the Income Affidavit of the Respondent/Complainant was also not filed till the said date and it was filed only on 05.12.2019. The imposition of cost of Rs. 2,000/- on 01.07.2019 on account of non-filing of Income Affidavit by the Revisionist/Respondent No. 1 was thus, not justified. Hence, the cost of Rs. 2,000/- as imposed on 01.07.2019 is hereby waived.
8. Ld. Metropolitan Magistrate had again imposed cost of Rs. 5,000/- on 26.09.2019 on the Revisionist/Respondent No. 1 on account of delay in filing of written statement and the Income Affidavit.
9. The perusal of record shows that reply to the main petition under Section 12 and to the interim maintenance application under Section 23 of the D. V. Act dated 16.09.2019 had been filed on record. However, what is pertinent to mention that the affidavit filed on behalf of the Revisionist/ Respondent No. 1 are merely in support of reply to the Petition under Section 12 and reply to interim maintenance application under Section 23 of the D. V. Act. The Income Affidavit, as mandated by law, has not been filed on behalf of the Revisionist/Respondent No. 1 till date. Ld. Metropolitan Magistrate has observed that the cost of Rs. 5,000/-
CR No. 118/2020MAYANK GUPTA & ANOTHER VS. DIVYA GUPTA Page No. 5 of 6 was imposed on account of delay in filing the written statement and interim maintenance application, but infact no Income Affidavit of Revisionist/ Respondent No. 1 Mayank Gupta has been filed till date in terms of case FAO No. 369/1996 & CM No. 15083/2014, titled Kusum Sharma vs. Mahender, decided by Hon'ble High Court of Delhi on 06.12.2017. In these circumstances, the imposition of cost of Rs. 5,000/- vide order dated 26.09.2019 does not merit any waiver.
10.In view of above, the cost of Rs. 2,000/- imposed on 01.07.2019 is hereby waived, whereas of cost of Rs. 5,000/- imposed vide order dated 26.09.2019 does not merit any waiver. The present Revision Petition is partly allowed.
11.Trial Court Record be sent back alongwith a copy of this order.
12.Revision Petition be consigned to Record Room.
Digitally signed by NEENA NEENA BANSAL BANSAL KRISHNA
KRISHNA Date: 2020.11.18 15:31:51
+0530
Announced in the open Court (Neena Bansal Krishna)
on 17.11.2020 Principal District & Sessions Judge
(KSR) South East, Saket Courts, New Delhi
CR No. 118/2020
MAYANK GUPTA & ANOTHER VS. DIVYA GUPTA Page No. 6 of 6