Deepak Jaiswal vs State of U.P. and Another

S.C. Agarwal, J.—This revision u/s 397/401 Code of Criminal Procedure is directed against the order dated 5.11.2009 passed by the Principal Judge, Family Court, Bareilly in Criminal Case No. 961 of 2009, Deepak Jaiswal v. Anchal Sexena whereby the application for condonation of delay u/s 5 of the Limitation Act in moving an application u/s 126(2) Code of Criminal Procedure was rejected.

In brief, the admitted facts are that opposite party No. 2 Smt. Anchal Saxena claiming herself to be the wife of the revisionist-Deepak Jaiswal filed an application u/s 125 Code of Criminal Procedure on her behalf and on behalf of her minor daughter Akansha on 13.11.2003 against the revisionist in the Family Court, Bareilly, which was registered as Case Crime No. 1463 of 2003. The revisionist filed written statement but subsequently, absented and the application u/s 125 Code of Criminal Procedure was allowed vide Judgment and order dated 16.8.2005 and the revisionist was directed to pay maintenance allowance to his wife and minor daughter @ Rs. 4000/- per month and 2000/- per month respectively.

Feeling aggrieved, the revisionist filed a Criminal Revision No. 4308 of 2005, Deepak Jaiswal v. State of U.P. and Anr. in the High Court, which was ultimately dismissed on 27.5.2009 by this Court as not pressed on the ground that the revisionist would press his application u/s 126 Code of Criminal Procedure before the court concerned. In the meantime, an application u/s 126(2) Code of Criminal Procedure for setting aside ex-parte judgment and order dated 16.8.2005 alongwith an application u/s 5 of the Limitation Act was moved before the Principal Judge, Family Court, Bareilly. Opposite party No. 2 filed objections. Learned Principal Judge, Family Court, Bareilly, vide order dated 5.11.2009 rejected the application u/s 5 of the Limitation Act on the ground that opposite party No. 2 was fully aware of the proceeding. The application was moved on the ground that he was suffering from illness and was busy in business out of the city and could not enquire about the case from his counsel. The application was dismissed on the ground that the revisionist had full knowledge about the case. He challenged the ex-parte order dated 16.8.2005 in the High Court by means of Criminal Revision No. 4308 of 2005 but till the year 2009, he did not move any application u/s 126 Code of Criminal Procedure for setting aside ex-parte order, though he had knowledge about the judgment in the year 2005 itself. It was also found that the revisionist has not given any details about his illness or remaining busy in business out of the city. Consequently, application u/s 5 of the Limitation Act was dismissed. The aforesaid order is under challenge in this revision.

I have heard Sri Shailesh Pandey, learned Counsel for the revisionist, learned AGA and Sri Sunil Kumar Srivastava, learned Counsel for opposite party No. 2.

Counter affidavit, supplementary counter affidavit and rejoinder affidavit have been exchanged between the parties.

Learned Counsel for the revisionist submitted that order dated 16.8.2005 was passed by the Family Court in an arbitrary manner and when the police came to arrest the revisionist, he came to know about the order dated 16.8.2005. Out of arrear amount of Rs. 3, 20,000/-, the revisionist has already paid a sum of Rs. 2, 10,000/- to the opposite party No. 2. The revisionist is running Tent House business and his annual income is about Rs. 54,000/- and he is unable to pay maintenance allowance at the rate of Rs. 6000/- per month to opposite party No. 2 and her minor daughter and opportunity should be granted to the revisionist to contest the application u/s 125 Code of Criminal Procedure on merits and his application u/s 5 of the Limitation Act ought not to have been rejected by the Family Court.

Learned Counsel for opposite party No. 2 submits that the applicant had full knowledge about the case u/s 125 Code of Criminal Procedure The revisionist filed written statement in the case denying even the factum of marriage whereas in para 5 of the affidavit filed in support of the revision, the revisionist has now admitted that he had re-married with opposite party No. 2 on 29th January, 1998. He further submits that even after passing of the ex-parte order dated 16.8.2005, he challenged the same before the High Court by means of criminal revision, which clearly shows that the revisionist had full knowledge about the ex-parte judgment but upto the year 2009, he did not care to file any application u/s 126(2) Code of Criminal Procedure and u/s 5 of the Limitation Act. The next contention is that after dismissal of the revision against the order dated 16.8.2005, it is not open to the revisionist to move an application u/s 126(2) Code of Criminal Procedure for setting aside the same.

I have heard learned Counsel for the parties at length. The revisionist has not come before this Court with clean hands. He has challenged the order rejecting his application u/s 5 of the Limitation Act but copy of the application u/s 5 of the Limitation Act has not been filed by him, though the revisionist has filed the copy of the application u/s 126(2) Code of Criminal Procedure.

From perusal of the impugned order, it is revealed that the application u/s 5 of the Limitation Act was filed on the ground that he was ill and remained out of city due to his business and could not enquire the case from his counsel. The revisionist has not explained the delay from 16.8.2005 to 16.3.2009 satisfactorily. Obviously, the revisionist came to know about the ex-parte order dated 16.8.2005 in the year 2005 itself as is evident from the fact that he challenged the said order before the High Court by means of Criminal Revision No. 4308 of 2005 but now the revisionist claimed before the Family Court that he had no knowledge about the ex-parte order. Another ground of illness was equally false. The revisionist had enough time and he was healthy enough to come to Allahabad to file the revision but he wanted the Court to believe that he was ill enough for the purpose of moving an application u/s 126(2) Code of Criminal Procedure before the Family Court. Similarly, the third ground that the revisionist remained busy in his business out side the city is also not worthy of any reliance. For condonation of delay, the revisionist has to show his due diligence and bonafides and has to explain the delay convincingly. It is an establish fact that the revisionist knew about the exparte judgment dated 16.8.2005 in the year 2005 itself, there was no justification for not filing the application u/s 126(2) Code of Criminal Procedure within prescribed period or even in the year 2005.

After hearing learned Counsel for the parties, this Court is of the opinion that the revisionist has not explained delay in filing the application u/s 126(2) Code of Criminal Procedure and his application u/s 5 of the Limitation Act for condonation of delay in filing the application u/s 126(2) Code of Criminal Procedure was rightly rejected by learned Principal Judge, Family Court, Bareilly.

The conduct of revisionist has also not been worthy of any indulgence by this Court. In the trial court, he even denied the factum of his marriage to opposite party No. 2 and even denied the birth of her daughter, though these facts have now been admitted by him in the affidavit filed in support of the revision. The revisionist is a businessman and admittedly is running a Tent House. On his own admission, he remains busy outside the city in connection with his business and if the revisionist is to be believed, he remain so busy that he could not even find time to move an application u/s 126(2) Code of Criminal Procedure before the Family Court. If the revisionist is such a busy person, he could not have any difficulty in paying maintenance allowance to his wife and minor daughter at the rate of Rs. 4000/- per month and Rs. 2000/- per month respectively.

In view of the aforesaid, this Court is of the opinion that the application u/s 5 of the Limitation Act filed by the revisionist alongwith the application u/s 126(2) Code of Criminal Procedure for setting aside the ex-parte judgment and order dated 16.8.2005 was rightly rejected by the Principal Judge, Family Court as the delay in filing the restoration application was not explained satisfactorily. The order passed by the learned Principal Judge, Family Court, Bareilly is fully justified and does not suffer from any error or illegality and does not warrant any interference by this Court.

The revision is devoid of merit and is accordingly dismissed. Interim order stands vacated.