Mohammad Mahmood vs State of U.P. and Others

S.C. Chaurasia, J.—Heard Sri S. Saifullah, learned counsel for the revisionist, Sri Akhilesh Kumar Dwivedi holding brief of Sri S.K. Upadhyaya, learned counsel for the opposite parties no. 2 & 3, learned A.G.A. and perused the record.

This revision has been preferred against the impugned order dated 20-08-2011 passed by learned Civil Judge(J.D.)/Judicial Magistrate, Deoband, District-Saharanpur, in Miscellaneous Case No. 70 of 2010, Smt. Gufrana Versus Mohammad Mahmood, impugned order dated 23-04-2010 passed by the Judicial Magistrate, Court No. 2, Deoband, District-Saharanpur in Case No. 157 of 2008, Smt. Gufrana Versus Mohammad Mahmood and the impugned order dated 09-05-2011, passed in Case No. 14 of 2011,Smt. Gufrana Versus Mohammad Mahmood, whereby the application u/s 125 Cr.P.C., was allowed ex-parte and the application for recall of the order was rejected and the recovery warrant for realisation of maintenance allowance was ordered to be issued.

From perusal of the record, it transpires that the application u/s 125 Cr.P.C., was moved on behalf of the applicants/opposite parties no. 2 & 3 for grant of maintenance allowance against the revisionist, Mohammad Mahmood, and the revisionist appeared in the said case, but, did not file any Written Statement inspite of time provided to him and hence, the case proceeded ex-parte against him.

On the basis of evidence produced by the applicants, the application was allowed ex-parte vide impugned Judgment & order dated 23-04-2010 and the revisionist was directed to pay a sum of Rs. 700/- to his wife, Smt. Gufrana and a sum of Rs. 300/- to his son, Belal, as maintenance allowance from the date of the judgment/order. The revisionist moved application u/s 126(2) Cr.P.C. for setting aside the ex-parte judgment/order, but, the said application was also rejected on 28-03-2011 in his absence. Thereafter, he moved another application to recall the said order and the said application was rejected on merits vide order dated 20-08-2011. Thereafter, the warrant for recovery of maintenance allowance was ordered to be issued against him.

Learned counsel for the revisionist has submitted that the revisionist is suffering from Tuberculosis and on account of it, he could not participate in the proceedings of the case. He has further submitted that the revisionist is ready to pay the arrears of maintenance allowance in easy instalments and is also ready to pay the said amount as interim maintenance allowance till disposal of the said application on merits, if the opportunity to contest the case on merits, is provided to him.

Learned counsel for the opposite parties no. 2 & 3 has no objection to the offer made on behalf of the revisionist.

In view of offer made on behalf of the revisionist, the interest of the opposite parties no. 2 & 3 would be protected.

The impugned ex-parte judgment and order dated 23-04-2010, impugned order dated 20-08-2011 and the impugned order dated 09-05-2011 are set aside and the Case No. 157 of 2008, Smt. Gufrana & another Versus Mohammad Mahmood, is restored to its original number and the case is remanded back to the concerned court for disposal afresh, in accordance with law, provided that the revisionist, Mohamammd Mahmood, shall pay arrears of maintenance allowance, as directed by the learned Civil Judge(J.D)/Judicial Magistrate, Deoband, District-Saharanpur vide order dated 23-04-2010, within a period of six months in three equal instalments. The first instalment shall be paid on or before 10th February, 2012. It is further directed that the revisionist shall pay a sum of Rs. 700/- to the opposite party no. 2 and a sum of Rs. 300/- to the opposite party no. 3 regularly, as interim maintenance allowance, which shall be payable by 10th of each month till disposal of the application u/s 125 Cr.P.C. on merits.

In case of breach of any of the conditions by the revisionist, he shall not be entitled to get the benefit of this order and the remaining arrears of maintenance allowance as well as the amount of interim maintenance allowance, shall be realised from him in accordance with law.

With these observations/directions, the revision stands disposed of finally.