IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON’BLE SMT. JUSTICE SUNITA YADAV ON THE 15th OF JUNE, 2022
CRIMINAL REVISION No. 1654 of 2021
MANISH GAUR S/O SUBHASH GAUR , AGED ABOUT 33 YEARS, OCCUPATION: SERVICE SOMALBADA TEH SEONI MALWA (MADHYA PRADESH)
(BY SHRI MAHESH GOYAL – ADVOCATE)
SMT LAKSHMI D/O MAHESH GAUR W/O MANISH GAUR , AGED ABOUT 28 YEARS, 58 GLOBAL PARK COLONY NEAR ROYAL VATIKA HARDA ROAD BY PASS HOSHANGABAD AT PRESENT 768 GOLE KA MANDIR BAGIYA RESIDENCY ROAD HANUMAN COLONY GWALIOR (MADHYA PRADESH)
(BY SHRI RANJEET KHANVILKAR – ADVOCATE)
This revision coming on for admission this day, the court passed the following:
Present revision under Section 19 (4) of the Family Courts Act has been filed being aggrieved by the order dated 03/4/2021 passed by Additional Principal Judge, Family Court, Gwalior in case No. 97/2020 (Misc. Cri.). The facts in brief to decide the present revision are that on 24/8/2020, present respondent filed an application under Section 125 of CrPC asserting that on 06/5/2018, marriage was solemnized between the petitioner and the respondent. It was further alleged that father of the respondent gave certain articles and cash on account of dowry on the demand of the petitioner. After marriage, the behaviour of the petitioner was not appropriate. The respondent was subjected to cruelty and was demanded a car in dowry. Upon filing the application under Section 125 of CrPC by the respondent, a case bearing No. 97/2020 (Misc. Cri.) has been registered and summons were issued to the petitioner. The petitioner appeared before the Court below on 18/3/2021 through his counsel, however, on 23/3/2021, the petitioner as well as his counsel remained absent. The Court below proceeded ex-parte against the petitioner on the same day and recorded ex-parte evidence of the respondent and fixed the case for orders on 03/4/2021. On 03/4/2021, petitioner filed an application under Order 9 Rule 7 of CPC to set aside the ex-parte order passed against him, which was dismissed by the order impugned. Learned counsel for the petitioner argued that the impugned order is perverse and is contrary to the settled principle of law. He has further argued that the petitioner had engaged a counsel to represent him before the Court below, however, his counsel did not appear before the Court for which the petitioner cannot be punished. On the other hand, learned counsel for the respondent argued that the conduct of the petitioner was not bonafide and he did not appear before the Court below despite having the knowledge about the pendency of the case to avoid his responsibility to pay maintenance and, therefore, this revision is liable to be dismissed. Heard rival contentions and perused the materials available on record. Perusal of the order-sheets reveal that the petitioner appeared on 18/3/2021 through his counsel. On the same day, counsel for the petitioner was directed to keep the petitioner present on the next date of hearing i.e. on 23/3/2021. However, on 23/3/2021, petitioner as well as his counsel remained absent and on the same day, ex-parte evidence of the respondent was recorded and the case was fixed for order on 03/4/2021. On 03/4/2021, at the time of passing of order, an application under Order 9 Rule 7 of CPC read with Section 13 of Family Courts Act was filed by the petitioner, which was rejected. In view of the above, it is apparent that on account of negligence of the advocate of the petitioner, ex-parte order was passed against him. It is well settled that litigant or party should not be punished for the mistake of his counsel. It is also apparent that an application under Order 9 Rule 7 of CPC read with Section 13 of Family Courts Act was also filed by the petitioner which ought to have been decided after giving an opportunity to the petitioner so as to explain the reasons for his absence on 23/3/2021. Since, it is the matter between the husband and wife, the fair opportunity ought to have been given before passing the order. In view of the above discussion, present revision is allowed and the impugned order dated 03/4/2021 is hereby set aside. The case is remanded back to the Court below.
Parties are hereby directed to remain present before the Court below on 25th July, 2022. The Court below is directed to give an opportunity of hearing to the petitioner and thereafter decide the matter afresh. It is also made clear that petitioner shall not take unnecessary adjournments or opportunities before the Court below. A copy of this order be sent to the Court below for information and necessary compliance.
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