Kalawati Ravindra Malewar vs Ravindra Vishwanath Malewar

A.A. Desai, J.—This application raises an intricate, but important question relating to jurisdiction of this Court u/s 482 of Code of Criminal Procedure.

Original applicant Kalawati filed proceedings u/s 125 of the Code for grant of maintenance. On 1-9-1987, Magistrate allowed her application and directed original non-applicant/husband Ravindra to pay maintenance at the rate of rupees three hundred per month. The non-applicant/husband presented a revision against the said order before this Court. However, it was withdrawn. Subsequently, he applied u/s 127 of the Code for altering maintenance in view of change in circumstances. It was rejected by the Magistrate. The non-applicant/husband, therefore, presented Criminal Revision Application No. 147/93.

On 13-10-1993, the matter was admitted and notice was issued to applicant/wife. The matter was heard on 25-11-1993. However, applicant/wife was not represented. The application of original non-applicant/husband was allowed and order granting maintenance in favour of applicant/wife was set aside.

The applicant/wife, therefore, initiated the instant proceedings purported to be u/s 482 of the Code. According to her, she filed Vakalatnama well in time. However, name of her counsel did not appear in the cause list and as such, she could not be represented. Moreover, the matter in revision was heard before expiry of period stipulated in the notice.

Appreciating the grievance, this Court, on 15-4-1994, directed re-hearing of the matter. The original non-applicant/husband questioned correctness of the order by presenting criminal writ petition. However, the same was allowed to be withdrawn.

The matter was listed before me. For quite sometime, parties with intervention of Court, tried to settle the matter. However, it resulted in utter failure and, therefore, I have heard the matter today.

Shri Vyawahare, the learned counsel for original non-applicant/husband, strenuously opposed the application mainly on the ground that there is no provision under the Code for re-hearing. Even otherwise, it is analogous to review the matter, which is expressly prohibited by section 362 of the Code. He further reiterated before me the settled proposition that what is prohibited or expressly precluded by the Code, cannot be resorted to by invoking section 482 of the Code. In view of this, the applicant/wife is not entitled to any re-hearing. It is not disputed that �

(A) the case was heard even before expiry of period stipulated in the notice, and

(B) when the case was taken up for final hearing, the name of counsel representing applicant/wife did not appear in the cause list though Vakalatnama was filed well in advance.

Sub-section (2) of section 401 of the Code casts a mandatory obligation on the revisional Court to issue notice and hear the opponent. Undisputedly, applicant/wife did not get any hearing because of error on the part of Administration.

The applicant has styled her application for grant of re-hearing. It would virtually be for grant of hearing for the first instance since initial hearing was not granted to her. Having regard to circumstances, it would not be granting of re-hearing to applicant/wife. As such, granting hearing for the first instance would not be analogous to review envisaged by section 362 of the Code.

For all practical purposes, applicant/wife is claiming hearing to which she is entitled under sub-section (2) of section 401 of the Code. Non-compliance thereof, as it is apparent and undisputed, entails, a consequence to render the impugned order as non est. Moreover, it could hardly .be debated that passing such order without granting an opportunity to other side or opponent would be substantial failure of justice and would also result in miscarriage.

Section 482 of the Code empowers the High Court to prevent abuse of process and also to secure ends of justice. Obviously in the instant case, there has been utter failure of justice. The order impugned is absolutely bad in law and, therefore, is liable to be set aside.

At this stage, Shri Vyawahare made a submission that even if it is a mistake patent or inherent committed by High Court, section 482 of the Code cannot be resorted to for correcting the same. In the submission of the learned counsel, only Appellate Authority or Supreme Court can look into the matter. In view of the reasoning, I do not propose to deal with the general submission as made.

In result, the application is allowed. The impugned order dated 25-11-1993 is hereby set aside.

Put up the matter for hearing on merit before regular Bench.