Delhi District Court
Bijender vs (1) Babli on 20 August, 2009
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IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT
Criminal Appeal No. 127/09
Bijender
S/o Sh. Shanker Lal
R/o 16-A/612, Authority Colony
Mahipal Pur, New Delhi ................. Petitioner
Vs.
(1) Babli
w/o Sh.Bijender
R/o Near Sec-1, Bus Stop
Building of Tea Vendor
Juggi of Mohhamad Pur Vllage
New Delhi
(2) The State (NCT of Delhi) ................... Respondents
Date of Institution 25/05/2009
Date when arguments
were heard 20/08/09
Date of Judgment 20/08/09
JUDGMENT
This appeal is directed against the order dated 17.4.09 passed by Ld. Metropolitan Magistrate whereby the application dated 26.6.08 under Section 25 of Protection of Women from Domestic Violence Act (in short 2 Act) for revocation of ex parte order dated 13.6.08 is dismissed by Ld. Metropolitan Magistrate.
The brief facts giving rise to the present appeal are that respondent No.1 has filed the petition under Section 12 of the Act claiming several relief mentioned therein against the appellant. The appellant was proceeded with ex parte on 5.6.08 as he failed to appear despite service. By ex parte order dated 13.6.08 the Ld. Metropolitan Magistrate directed the appellant to pay Rs.4,000/- per month as maintenance pendentelite from the date of filing of application by way of cheque or in any other appropriate manner on or before 7th days of each month and the payment was to be made from July, 08.
The appellant filed an application dated 26.6.08 for revocation of ex parte order dated 13.6.08 granting interim maintenance to the respondent which was dismissed by impugned order dated 26.6.08.
The contention on behalf of the appellant is that the application filed before Ld. Metropolitan Magistrate is maintainable under Section 25 of the Act. The reliance is placed upon Amit Sundra & Others Vs. Sheetal Khanna I (2008) DMC 58, Delhi where in the petition under Section 482 3 Cr.PC, it was held that Section 25 of the Act on the application of the aggrieved person the alteration, modification or revocation in the order of Ld. Metropolitan Magistrate on account of the change of circumstance can be done. It was also explained that Section 29 of the Act gives right to appeal against order passed by Ld. Metropolitan Magistrate. The reliance is also placed upon Chithrangathan Vs. Seema I (2008) DMC 365, Kerala wherein it was held that right to appeal under Section 29 of the Act is not hedged in by any statutory restriction either expressly or by necessary implication.
It is argued that the application should have been allowed by Ld. Metropolitan Magistrate as interest of justice required that opportunity of being heard should be given to appellant before Ld. Metropolitan Magistrate in the proceedings pending against him under the provisions. It is argued that the appellant could not appear before Ld. Metropolitan Magistrate on either 5.6.08 or 23.6.08 due to illness and copy of medical certificate was filed alongwith application so the application ought to have been allowed by the Ld. Metropolitan Magistrate.
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The contention on behalf of the respondent wife is that appellant is living with his second wife and respondent is starving. It is argued that the appellant has sought adjournment after adjournment and no specific prayer for setting aside order dated 5.6.08 is made. It is argued that the application was rightly dismissed by Ld. Metropolitan Magistrate and appeal is not maintainable.
I have heard ld. Counsel for parties and have gone through trial court record and the authorities cited on behalf of the appellant. The two fold reasons given by the Ld. Metropolitan Magistrate in dismissing the application under Section 25 of the Act of the appellant are that Section 25 is attracted to an order passed under Section 18 of the Act so the application is not maintainable. Another reason is that no prayer is made for setting aside proceedings dated 5.6.08 in the absence of which the application under Section 25 of the Act was not maintainable.
It is true that Sub-Section (1) of Section 25 of the Act pertains to under Section 18 of the Act but Sub-Section (2) of Section 25 is so liberally worded that revocation, modification or alteration of any order passed under the Act is covered in it. Therefore, the application dated 26.6.08 of the 5 appellant filed before Ld. Metropolitan Magistrate cannot be said to be not maintainable. Although, Amit Sundra & Others Vs. Sheetal Khanna case supra and Chithrangathan Vs. Seema case supra are distinguishable on facts but the fact remains that the application dated 26.6.08 filed before Ld. Metropolitan Magistrate by appellant was maintainable under Section 25 (2) of the Act.
The interest of justice demands that the fair and proper opportunity should be given to both parties to contest the case so that the decision on merit, after full contest, is given by the court. Therefore, it is also in the interest of justice that the facts pertaining to setting aside of ex parte proceedings or order alleged by the present appellant who was proceeded with ex parte should be liberally interpreted by the court. It is true that there is no specific prayer in the application dated 26.6.08 of the appellant filed before Ld. Metropolitan Magistrate for setting aside the order dated 5.6.08, when he was initially proceeded with ex parte, but it is also equally true that in the application dated 26.6.08 the appellant has specifically stated that he was unable to attend the court on 5.6.08, on account of illness and he also could not attend the office from 2.6.08 to 6 10.6.08 and has filed copy of medical certificate. Therefore, the application dated 26.6.08 as a whole though there is no specific prayer for setting aside order dated 5.6.08 but reasonable explanation for absence of the appellant before Ld. Trial Court on 5.6.08 is given in the application supported by copy of medical certificate. Therefore, the application dated 26.6.08 could be treated for setting aside of ex parte proceedings dated 5.6.08 also, more so, when the respondent can be adequately compensate the cost.
In view of the above, the appeal is allowed the impugned order dated 5.6.08 proceeding the appellant as ex parte and subsequent ex parte order dated 13.6.08 granting maintenance to the respondent is set aside with the following conditions:-
(1)The appellant shall pay a cost of Rs.4,000/- to the respondent. (2)The appellant shall appear before Ld. Trial Court and file reply to the petition under Section 12 of the Act and the Ld. Trial Court shall fix one date for filing replication, if any, documents, if any, by parties and arguments on the interim relief claimed by the respondent.
Parties be appeared before Ld. Trial Court on 2.9.09 at 10 am. The Trial Court Record be returned alongwith the copy of this 7 judgment.The judgment be sent to the server (www.delhidistrictcourts.nic.in).
Appeal file be consigned to record room.
Announced in the open court on day of 20st August ,2009 (S. K. SARVARIA) Additional Sessions Judge New Delhi