Delhi District Court
Sanjay Jain vs Smt. Neeru Jain on 22 August, 2013
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA COURTS, DELHI
Crl. (R) No. 67/13
1. Sanjay Jain
S/o. Sh. J.P.Jain
R/o. 457A, Mantola
Paharganj,
New Delhi110057. ............ Revisionist
Versus
1. Smt. Neeru Jain
W/o. Sh. Sanjay Jain
R/o. 622A, Guru Ramdass Nagar
(Laxmi Nagar), Delhi92.
2. Master Akshat Jain
3. Master Shrey Jain
Both through their mother and natural guardian
S/o. Sh. Sanjay Jain
R/o. 622A, Guru Ramdass Nagar
(Laxmi Nagar), Delhi92. ............ Respondents
ORDER
CR No. 6713 Page 1 of 5 Sanjay Jain Vs. Neeru Jain & Ors.
1. By this order I shall dispose off the revision petition filed by the petitioner seeking setting aside of the order of Ld. Trial Court dt. 02.05.13, whereby Ld. Trial Court had dismissed the application of petitioner filed u/s.126 (2) Cr.P.C seeking setting aside of exparte judgment dt. 08.01.10.
2. Brief facts of the case are that a complaint u/s. 125 Cr.P.C was made by the respondent on 18.05.05. Notice was issued to the petitioner (respondent therein). On 26.10.06 the notice was received back unserved as respondent was found not residing at the given address. The summons sent through Regd. Post, however was received back with the report 'intimation delivered to the mother'. On this date Ld. Trial Court observed that respondent was avoiding the summons and proceeded Ex parte against him.
3. Petitioner claims that he never received the summons. The service, if any, by way of Regd. Post was against the provisions of Cr.P.C. The presence of the petitioner on 02.03.07 has wrongly been mentioned as he never appeared before the Ld. Trial Court. He came to know about the pendency of case u/s. 125 Cr.P.C during the hearing of the divorce petition filed by him.
4. Ld. Counsel for the respondent on the other hand argued that there is no error in the order of Ld. Trial Court. The respondent had appeared before the Trial Court on 02.03.07 and stopped appearing thereafter. He as such, was aware of the CR No. 6713 Page 2 of 5 Sanjay Jain Vs. Neeru Jain & Ors.
fact that the matter was pending against him. It was also argued that petitioner had come to know about the pendency of the present proceedings in the year 2011 as per his own admission when he appeared before the court of Ms. Ila Rawat, Ld. ADJ, where the divorce case between the parties is going on, yet he chose not to file the application u/s. 126 (2) Cr.P.C within three months thereafter, and the application filed before Ld. Trial Court was highly belated.
5. The order of Ld. Trial Court says that the petitioner was aware of the pendency of this case and he appeared in the Court and therefore, it was safe to presume that he had the knowledge of the case and he did not appear deliberately in the court.
6. Ld. Counsel for the petitioner has relied upon certain judgments, wherein the service effected by way of Regd.Post was not acknowledged by the concerned Hon'ble High Courts (Bhimappa Gangappa Vs. Indira Bai) 1980 Law Suit (Kar.) 267 & 1993 CRI. L.J 418 (V.P.Shivanna Vs Smt. Bhadramma).
7. The facts of the present case are different from the facts of the cited judgments in as much as the petitioner appeared personally in the court and therefore, it can be presumed that he somehow acquired the knowledge about the matter being pending in the court. A party once he appears in the court, the purpose of getting him served by way of summons is achieved since the purpose of the summons is only CR No. 6713 Page 3 of 5 Sanjay Jain Vs. Neeru Jain & Ors.
to intimate the party that he is required to appear in the court.
In the present case respondent did appear in the court on 02.03.07 and therefore the purpose of serving summons on him was achieved. It is after his appearance on this date that the matter was adjourned for compromise and not before that. The petitioner, however, stopped appearing thereafter. Further, the respondent himself admits that he came to know that this case is pending when he was appearing in the court of MS. Ila Rawat Ld. ADJ, on 29.11.11. The order of Ld. ADJ Court is categoric that respondent did submit before the court on 29.11.11 that an amount of Rs.6,000/ p.m has been fixed by the court, where the proceedings u/s. 125 Cr.P.C was pending and execution petition was also pending. Thus, on 29.11.11 the petitioner became aware of the fact that proceedings u/s. 125 Cr.P.C were pending against him, though as per record he was aware of this fact in 2007 itself, as per the order sheet of Ld. Trial Court. There is no justification for why the application to get the order set aside was not filed within time. Knowledge of pendency of a case that too through judicial proceedings is one of the best ways of making a person aware of the case pending against him.
The petitioner thus was specifically made aware of the pending case twice, once on 02.03.07 when he appeared before the Trial Court and the matter was adjourned for compromise and thereafter, on 29.11.11 before Ld. ADJ Court. Application u/s. 126 (2) Cr.P.C filed by the petitioner on 06.09.12 is highly belated from either date. No justification for the delay has been assigned.
CR No. 6713 Page 4 of 5 Sanjay Jain Vs. Neeru Jain & Ors.
8. Under these circumstances, I find no error in the order of Ld. Trial Court. Accordingly, revision petition is dismissed. Trial Court record be sent back with a copy of this order. Revision file be consigned to record room. Announced in the open court on 22.08.13 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) SPL. JUDGE (NDPS) KKD COURTS, DELHI/22.08.13 CR No. 6713 Page 5 of 5 Sanjay Jain Vs. Neeru Jain & Ors.