Delhi District Court
Aftab Alam vs State (Nct Of Delhi) on 14 September, 2015
Criminal Appeal No.24/15
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 24/2015
Under Section : 12 of The Protection of Women From
Domestic Violence Act, 2005.
Police Station : Jafrabad
Case No. : V-325/10/12
Unique I.D. No. : 02402R0271182015
In the matter of :-
AFTAB ALAM
S/o. Late Ansar Hasan Ansari,
R/o. H.No.185, Jayantipur, Meena Nagar,
Street No.4, Majhoula, Moradabad, U.P.
..............Appellant
VERSUS
1. STATE (NCT OF DELHI)
2. Smt. TABASSUM
W/o. Sh. Aftab Alam,
D/o. Sh. Abdul Salam,
R/o. H.No.12-A/26, Street No.11,
Vijay Mohalla, Moujpur, Delhi.
..............Respondents
Date of Institution : 04.08.2015
Date of receiving the case in this court : 05.08.2015
Date of reserving order : 07.09.2015
Date of pronouncement : 14.09.2015
Decision : Appeal is dismissed.
JUDGMENT
1. This is an appeal preferred against the order dated 24.07.2015, passed by trial court in a case titled as Tabassum v. Aftab Alam etc., bearing case no.V-325/10/12, under Section 12 of The Protection of Women from Domestic Violence Act, 2005. Vide the impugned order, the trial court dismissed the application for setting aside the ex-parte order dated 25.09.2013, which was moved on behalf of appellant herein.
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2. Briefly stated, the relevant facts giving rise to this appeal are that respondent no.2 herein had filed an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) against her husband (appellant herein) and other in- laws. Notice of this application was sent to the appellant vide registered post at his given address of Maqbara Road, Mali Wali Gali, near Pathar Wali Masjid, PS Mughalpura, District Muradabad, U.P. The registered post was received back in the court with endorsement of not claimed. The trial court assumed service upon the appellant on the basis of aforesaid report and for want of appearance of the appellant proceeded ex-parte against him vide order dated 20.01.2011. The other respondents were deleted by the trial court on the basis of statement given by applicant (respondent no. 2 herein) and thereafter, vide impugned order/judgment dated 25.09.2013 the case was decided against the appellant.
3. Appellant moved an application dated 11.02.2014 for setting aside of the final judgment, which was passed on 25.09.2013 in absence of the appellant. Respondent no.2 was given notice of this application and she contested this application.
4. Appellant pleaded in his aforesaid application that he came to know about this case, when he was approached by police official on 01.02.2014 telephonically. He was called at the given address by the police and was given copy of execution no.230/13 and then he came to know about ex- parte judgment. Thereafter, he appointed his counsel, who inspected the record and applied for certified copy. His non appearance was unintentional. In his affidavit, appellant had given his different address i.e. Jaintipur, Meena Bazar, Street No.4, Moradabad, U.P.
5. On the other hand, respondent no.2 challenged the application of appellant submitting that appellant had been residing at his given address and had procured documents to show his different address in frivolous manner. The trial court decided the application against the appellant.
6. Being aggrieved of the impugned order, appellant has preferred this appeal Page 2 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.24/15 on the following grounds :-
● That the appellant had already left his previous address i.e. Maqbara Road, Mali Wali Gali, near Pathar Wali Masjid, PS Mughal Pura, District Moradabad, U.P and he had shifted to H.No.185, Jayantipur, Meena Nagar, Street No.4, PS. Majhoula, Moradabad, U.P and in this regards, the appellant filed 4 documents with the said application in support of his plea. Appellant was never served with any summons or notice of this petition of the respondent no.2 nor had he knowledge of said petition or execution on or before 01.02.2014.
7. Respondent no.2 contested this appeal taking plea that the appellant has falsely alleged about change of his address at the time of his service with notice of application under Section 12 of the Act. Respondent filed several documents including copy of the chargesheet, application given under Section 156 (3) Cr.P.C by appellant against respondent no.2 and marriage card of appellant, to support her plea that appellant had been residing at his given address, on which the notice was sent through registered post, but was not claimed by the appellant.
FINDINGS :-
8. The issue involved in this appeal is limited to the extent that whether the appellant had explained sufficient reasons before the trial court to set aside the ex-parte judgment dated 25.09.2013? Neither the trial court nor this court are concerned with the merit of the allegations made in the application under Section 12 of the Act. In his application before the trial court, the appellant did not explain that why he was unaware of the notice sent by the trial court. He simply claimed that he came to know about pendency of this case only when a notice of execution petition was served upon him by the police official by making a telephone call to him on 01.02.2014. However, from the impugned order, it appears that the appellant took plea that he never resided at the address furnished by respondent no.2 in her application under Section 12 of the Act and therefore, he could not come to know about this proceeding.
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9. Almost same set of documents were filed by both the parties, which were relied upon by them before the trial court. The trial court came to a conclusion that the appellant was residing at his given address, on which the notice was sent through post and the documents furnished by the appellant to show change of his address purported to be of a subsequent time period, which were not relevant for the purpose of decision on the application of the accused.
10. During course of the argument, ld. counsel for appellant submitted that the copy of electoral role filed by respondent no.2 is insignificant because the address of a voter is not immediately changed in the electoral role. However, at the same time, ld. counsel did not challenge the copy of chargesheet filed by police of PS Mughal Road, Moradabad in a case instituted on the basis of application moved by appellant under Section 156 (3) Cr.P.C. Ld. counsel also did not challenge the copy of complaint made by appellant under Section 156 (3) Cr.P.C against respondent no.2 as well as the copy of marriage card pertaining to marriage between appellant and Phool Jahan. The complaint under Section 156 (3) Cr.P.C was given by appellant on 13.10.2010 and he had mentioned same address, on which the notice of application under Section 12 of the Act was sent through registered post. Same address of appellant is mentioned in the chargesheet filed by the police on 20.11.2010 and the same address of appellant is mentioned in the marriage card of marriage between appellant and Phool Jahan, scheduled for 24.05.2014.
11. Ld. counsel for appellant submitted that this marriage card was not printed at the instance of appellant and therefore, he is not responsible for his given address in the same. However, I am unable to concur with such submission of ld. counsel for simple reason that in the year 2014, the family of bride could not have given any other address of the appellant in the marriage card, until unless they would have come to know about such address of appellant from appellant itself. Furthermore, there is no explanation regarding the address mentioned by appellant himself in his Page 4 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.24/15 complaint under Section 156 (3) Cr.P.C. The notice of the application was sent to the appellant for 20.01.2011. The trial court rightly observed that the documents furnished by appellant thereby mentioning a different address are purportedly issued at a later point of time, which could not be given any attention. Thus, I find that the trial court rightly concluded that the appellant was residing at his given address, on which notice was sent to him.
12. Notice through registered post was sent by the trial court keeping in view the fact that appellant was residing beyond the territory of Delhi. Rule 12 (2) of the Protection of Women from Domestic Violence Act Rules 2006, empowered the trial court to send the notice for the purpose of service upon the opposite party as per provision under Order 5 of CPC or the provision under chapter 6 of Cr.P.C. Sub Clause 2 (d) of this Rule further provides that the court may direct any other step necessary with a view to expediting the proceedings to adhere to the time limit provided in the Act. The proceedings under the Act are to be conducted in expeditious manner as contemplated in Section 12 (4) and (5) of the Act. Hence, service upon the appellant through normal mode of service i.e. through Protection Officer or any other officer of the local court could not have been a viable option. Therefore, if the registered post with correct address of the appellant was sent for service of the notice, a presumption under Section 27 of General Clauses Act comes into operation, in order to conclude, if the notice was deemed to be served upon the appellant or not.
13. Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr, AIR 1999 SC 3762 approved raising a presumption of due service upon the other party, in a case where the registered post was received back unclaimed, by making following observations :-
"The principle incorporated in Section 27 (General Clauses Act) can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not Page 5 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Appeal No.24/15 really served and that he was not responsible for such non- service.
Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in Clause (c) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address."
14. In the present case, the appellant has not raised any such plea so as to show that despite residing at the given address, he was not given information about the post containing the notice. Rather he took a frivolous plea that he was not residing at the given address. Therefore, the presumption of due service upon the appellant, as raised by the trial court cannot be termed illegal or improper. The plea taken by appellant that the police official served notice of execution petition, which was also sent at the same address, by calling him through telephone, does not discharge the burden cast on him to rebut the presumption of due service of notice at the same address in the year 2010. His marriage invitation card shows that even in the year 2014, appellant was having the same address. Therefore, the appellant cannot be allowed to disassociate himself from the given address, in order to wriggle out of presumption of due service upon him.
15. In view of my foregoing discussions, I do not find any illegality or infirmity in the decision taken by the trial court, so as to reject the application of appellant for setting aside ex-parte judgment dated 25.09.2013. Hence, the appeal is dismissed.
16. Copy of this judgment be sent to the trial court with TCR.
File be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA)
today on 14.09.2015 Additional Sessions Judge (Shahdara)
(This order contains 6 pages) Karkardooma Courts, Delhi
Page 6 of 6 (Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Karkardooma Courts, Delhi