Delhi District Court
Sh. Amit Goel vs Smt. Vandana Gupta on 5 December, 2020
IN THE COURT OF MS. SWARANA KANTA SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE (NORTH)
ROHINI COURTS, DELHI
Criminal Appeal No. 93/2020
Sh. Amit Goel
S/o late Sh. Prem Chand
R/o D49, First Floor,
Prashant Vihar, Delhi85 ...Appellant
Versus
Smt. Vandana Gupta
D/o Sh. Dinesh Kumar Gupta
W/o Sh. Amit Goel
R/o A29, Welcome Apartments,
Sector9, Rohini, Delhi ...Respondent
Date of institution : 12.10.2020
Arguments heard on : 28.11.2020
Date of pronouncement : 05.12.2020
Appearance through video conferencing:
Sh. Sudhir K. Saneja, Ld. Counsel for the appellant/husband.
Sh. Nitin Sehgal, Ld. Counsel for the respondent/wife.
ORDER
By this order, I shall dispose of the appeal filed by the appellant/husband (respondent before Ld. Trial Court) under provisions of Section 29 of Domestic Violence Act assailing the impugned order dated 20.01.2020 passed by the Court of Ms. Neha Mittal, Ld. MM, CA No. 93/20 Amit Goel v. Vandana Gupta Page 1 of 7 Mahila Court01, North District, Rohini Courts, Delhi, in complaint case no. 395/3/13 (1591/2016) titled as Vandana Goel v. Amit Goel, whereby Ld. Trial Court has dismissed the application of the appellant for reviewing order dated 25.10.2019.
2. Notice of the appeal was issued to the respondent. Trial Court record was summoned.
3. Brief facts of the case are that vide order dated 29.06.2019, Ld. Trial Court had struck off the defence of the appellant since he had failed to argue on interim maintenance application of the complainant (respondent herein) despite being granted last and final opportunity. Thereafter, the appellant had moved a criminal appeal bearing no. 170/19 titled as Amit Goel v. Vandana Gupta before the Appellate Court of Sh. Chandra Bose, Ld. ASJ (North)03, Rohini Courts, Delhi.
4. Vide order dated 23.10.2019, the Ld. Appellate Court / Ld. ASJ03 had set aside the order dated 29.06.2019 and 29.07.2019 of Ld. Trial Court and the appellant was given one opportunity to argue on the interim maintenance application and for crossexamination of CW1 subject to cost of Rs.1,00,000/ to be paid to respondent. However, the appellant had challenged the said order of Ld. Appellate Court before Hon'ble High Court of Delhi seeking direction to set aside/modify order dated 23.10.2019 of Ld. ASJ02, Rohini Courts, Delhi to the extent of CA No. 93/20 Amit Goel v. Vandana Gupta Page 2 of 7 waiving of cost. Vide order dated 06.02.2020, Hon'ble High Court has ordered that the petitioner (appellant herein) shall pay an amount of Rs.1,00,000/ and the same shall be adjusted in maintenance amount.
5. Vide order dated 25.10.2019, Ld. Trial Court has closed the opportunity of the appellant to crossexamine CW1 since none had appeared for the appellant on that date despite repeated calls. Vide said order, appellant was also proceeded exparte and the matter was adjourned for exparte PE / final arguments.
6. I have heard arguments on behalf of the parties and have gone through the record. I have also gone through the trial court record.
7. Ld. Counsel for the appellant/husband has argued that since Ld. Appellate Court had remanded back the matter with directions to grant one opportunity for arguments on interim application and one opportunity for crossexamination of the complainant, Ld. Trial Court was supposed to fix a date for arguments on interim application or crossexamination of the complainant on 25.10.2019. Ld. Counsel for the appellant has further argued that Ld. Trial Court has, however, passed the order dated 25.10.2019 in haste and even did not review the said order vide impugned order dated 20.01.2020 despite the fact that Ld. Trial Court is vested with the power to recall its own order because CA No. 93/20 Amit Goel v. Vandana Gupta Page 3 of 7 the provisions are predominantly civil in nature.
8. On the other hand, Ld. Counsel for the respondent/wife has argued that the appellant is deliberately delaying the case so that the interim maintenance application may not be disposed of. Ld. Counsel for the respondent/wife has also argued that the impugned order was passed correctly as per law and that the present appeal should be dismissed with heavy cost.
9. After hearing arguments and going through the record, I am of the opinion that a perusal of the record shows that vide order dated 23.10.2019, Ld. Appellate Court / Ld. ASJ (North)03 had agreed with the submissions of Ld. Counsel for the appellant that since the case was adjourned for hearing arguments on interim application for maintenance for 29.06.2019, Ld. Trial Court could have disposed of the said application after hearing arguments of Ld. Counsel for respondent and the defence of the appellant should not have been struck off and that the case should have been adjourned further for evidence of complainant for 29.07.2019, so that crossexamination of CW1 could have been conducted on behalf of appellant by his counsel who was present on 29.07.2019.
10. Perusal of trial court record reveals that vide order dated 25.09.2018, Ld. Trial Court had already heard arguments on interim CA No. 93/20 Amit Goel v. Vandana Gupta Page 4 of 7 maintenance application and the matter was adjourned for order on the said application. However, later on since certain clarifications were required by Ld. Trial Court from the parties, the matter was again fixed for arguments on interim maintenance application.
11. Vide order dated 23.10.2019, Ld. Appellate Court / Ld. ASJ (North)03 had set aside the orders dated 29.06.2019 and 29.07.2019 and only one opportunity was given for arguments on interim maintenance application and one opportunity was given for cross examination of CW1 subject to cost of Rs.1,00,000/. While allowing the said appeal, Ld. Appellate Court / Ld. ASJ (North)03 had also directed that the appellant would not try to delay the proceedings.
12. In my considered opinion, since only one opportunity was granted by Ld. Appellate Court / Ld. ASJ (North)03 for arguments on interim maintenance application, Ld. Trial Court could have disposed of the said interim application on 25.10.2019 itself and then, Ld. Trial Court could have given one opportunity for crossexamination of CW1 as per the directions of Ld. Appellate Court / Ld. ASJ (North)03. The order dated 23.10.2019 of Ld. Appellate Court / Ld. ASJ03 is clear and selfexplanatory.
13. The order of Ld. MM was challenged by the appellant himself before Ld. ASJ03 and the order was passed in favour of the appellant CA No. 93/20 Amit Goel v. Vandana Gupta Page 5 of 7 by Ld. ASJ03 in his presence. It is, therefore, clear that there could not have been any confusion in the mind of the appellant regarding he being given only one single opportunity to address arguments on the interim maintenance application before the Ld. MM. It is clear from the conduct of the appellant that he is trying to delay the proceedings that too grant of interim maintenance.
14. As I have already mentioned above that arguments were already heard in this case on maintenance and the single opportunity granted for addressing fresh arguments by the Ld. ASJ03 was not availed again by the appellant, I therefore, do not find it a fit case where he should be again accorded an opportunity to address arguments on interim maintenance as it will further delay the matter and will be making mockery of the judicial process where again and again same order is challenged and despite being accorded opportunity, the opportunity is not availed by due diligence by the appellant.
15. In view of the above, impugned orders dated 25.10.2019 and 20.01.2020 of Ld. Trial Court are partially set aside. Ld. Trial Court shall pass order on interim maintenance application of the complainant on the basis of material available on record without further hearing arguments on behalf of appellant/husband. The appellant is directed to crossexamine CW1 on the next date of hearing, which has already been fixed by Ld. Trial Court subject to deposit of amount of CA No. 93/20 Amit Goel v. Vandana Gupta Page 6 of 7 Rs.1,00,000/. In case, the appellant fails to crossexamine CW1 on the next date of hearing already fixed by Ld. Trial Court, his defence shall be struck off. The appeal is accordingly disposed of.
16. Nothing expressed herein shall tantamount to any expression on the merits of the case and the Ld. Judge will hear the matter as per law without being guided by any observations made in this order.
17. Trial court record be sent back to Ld. Trial Court alongwith copy of this order and the appeal file be consigned to the Record Room.
Announced through video conferencing today i.e. 5th December, 2020 (Swarana Kanta Sharma) Principal District & Sessions Judge (North) Rohini Courts, Delhi (sb) CA No. 93/20 Amit Goel v. Vandana Gupta Page 7 of 7