Karnataka High Court
Smt A Kavitha vs Sri Rajesh Venugopal on 27 November, 2012
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE C.R. KUMARASWAMY
RPFC No.121/2012
BETWEEN:
SMT. A. KAVITHA,
W/O RAJESH,
AGED ABOUT 29 YEARS,
R/AT NO. 217, 13TH MAIN,
WEST OF CHORD ROAD,
MANJUNATHANAGAR,
BANGALORE-10.
...PETITIONER.
(BY SRI. VIVEK S REDDY, ADV. FOR
SRI. K.N. SUBBA REDDY ADVS.)
AND:
SRI. RAJESH VENUGOPAL,
S/O VENUGOPAL SWAMY,
AGED ABOUT 36 YEARS,
R/AT NO.2589, 5TH B MAIN,
RPC LAYOUT,
VIJAYANAGAR EAST,
BANGALORE-40.
...RESPONDENT
(SRI. C.R. RAGHAVENDRA REDDY, ADVOCATE)
THIS RPFC IS FILED UNDER SECTION 19(4) OF
FAMILY COURT ACT, AGAINST THE ORDER DATED
29.06.2012 PASSED IN C.MISC. NO.397/2009 ON THE
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FILE OF THE PRL. JUDGE, FAMILY COURT,
BANGALORE DISMISSING THE PETITION FILED
UNDER SECTION 125 OF CR.P.C
THIS RPFC IS COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This RPFC is filed under Section 19(4) of Family Court Act, Order dated 29.06.2012 passed in C.Misc.No.397/2009 on the file of the Prl. Judge, Family Court, Bangalore, dismissing the petition filed under Section 125 of Cr.P.C.
2. With the consent of the learned counsel for revision petitioner as well as learned counsel for revision respondent, this matter was taken up for final disposal. Records of the trial Court has already been received and I have perused the same.
3. Learned counsel for the petitioner invited the attention of this Court to the order dated 07.04.2012 of 3 the trial Court. The order dated 07.04.2012 reads as under:
"Petitioner present. Respondent absent. Petitioner files an application under Section 311 of Cr.P.C to recall RW1 for cross examination.
Heard both sides. Considered the oral objections of the counsel for the respondent who has strongly opposed the application contending that twice RW1 has tendered for cross-examination and the petitioner has intentionally sent the witness back to exasperate and browbeat the witness.
It is seen from the order sheet, RW1 was examined on 23.01.2012. On that day, on the request of the counsel for the petitioner the cross-examination was deferred to 12.03.2012 subject to the condition that the petitioner shall cross-examine RW1 without seeking any adjournment since the witness had to come from Australia only for the purpose of facing cross-examination. Accordingly, on 12.03.2012 RW1 tendered himself for cross-examination, but the petitioner sought time for cross- examination on the ground that her counsel was not attending the court. Though the reason 4 assigned in the petition was not acceptable, yet to grant another opportunity to the petitioner, cross-examination of RW1 was deferred as last chance to 13.03.2012. On 13.03.2012 once again RW1 tendered for cross-examination but the petitioner once again sought time for cross- examination on the ground that her counsel was not attending the court. Since, the petitioner failed to avail the opportunity to cross-examine the witness, having no other alternative, the cross-examination of RW1 was taken as nil and the witness was discharged. On the next dated i.e.17.03.2012 the counsel for the respondent addressed his argument, but the petitioner absent. Hence, the matter was posted for orders on 21.03.2012 and again on 07.04.2012.
In the affidavit filed in support of the application it is stated that on 12.03.2012 the petitioner appeared before the court and sought time to cross-examine DW1 but the court was pleased to reject her prayer and discharge DW1. There is absolutely no reason much less any acceptable reason to recall RW1. The respondent having appeared before the court twice, the petitioner sent the witness back on 5 the purported ground that his counsel was not appearing before the court. If so proper remedy is available to the petitioner to claim the cost or damages if any from her counsel who failed to represent her on the dates of hearing. The respondent having come all the way from Australia to face the cross-examination on 2 occasion cannot be recalled at the whims and fancies of the petitioner. The petitioner appears to have adopted vindictive and dilatory tactics knowing fully well that the respondent has to come all the way from Australia. She having sent back the respondent without cross- examining on 2 occasions, cannot seek indulgence of court alleging denial of opportunity. The conduct of the petitioner is highly despicable. However to grant another opportunity to the petitioner to cross-examine RW1, the application is allowed subject to the condition that the petitioner shall pay the entire air fare of the respondent (RW1) together with a cost of Rs.5,000/- on deposit of the said amount within 7 days, the further date will be fixed for the cross-examination of the respondent, failing which the matter shall go for orders as scheduled reserving liberty to the 6 petitioner to address his arguments if any on 16.04.2012. Application stands allowed accordingly. Call on 16.04.2012".
4. Subsequently, an application under Section 91 of Cr.P.C was filed by the petitioner before the court below. The said application was perused by the court below. That on 29.06.2012, order on main matter was pronounced and the petition in Crl. Misc.No.397/2009 filed under Section 125 of Cr.P.C was dismissed.
5. Feeling aggrieved by the same, the petitioner has preferred this RPFC. One of the main contentions of the learned counsel for petitioner is that no opportunity was given to cross-examine the respondent-husband. Therefore, on this ground the impugned order is liable to be set aside.
6. Learned counsel for petitioner submits that he has no objection to set aside the impugned order dated 29.06.2012 and remand the matter to the trial Court. 7 He further submits that matter may be remitted back to the trial Court for the purpose of cross-examination of the respondent-husband. In this case, the matter has not been decided on merits. No proper opportunity was given to the parties to adduce their evidence effectively. Since, there was no opportunity was given to the wife to cross-examine her husband, in my view there is denial of opportunity. In order to do substantial justice and also to give proper opportunity to the parties to adduce their evidence, I feel it is a fit case to set aside the order passed by the trial Court in C. Misc.No.397/2009 filed under section 125 of Cr.P.C. Accordingly, the matter is remitted back to the trial Court.
7. In the result, I pass the following:
ORDER
1) This RPFC is allowed.
2) Revision petitioner-wife is permitted to cross-
examine the respondent-husband in the Court below.
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3) Learned counsel for revision respondent submits that respondent-husband may be directed to appear before the trial Court on 25.01.2013 and the revision petitioner-wife shall cross-examine him with regard to all aspects of the case.
Since the main matter is disposed of, I.A. 1/2012 filed for production of additional documents does not survive for consideration.
SD/-
JUDGE JTR