Pawan Kumar Jain vs Smt. Sunita Jain

This petition has been filed under Section 482 of Cr.P.C. against the order dated 12.01.2007 passed by Second Additional Sessions Judge, Sagar in

Criminal Revision No.7/2007 whereby learned ASJ rejected the applicant’s revision and affirmed the order dated 06.12.2006 passed by learned

JMFC, Sagar in M.J.C.No.17/2005 (Smt. Sunita Jain v. Pawan Kumar Jain) whereby learned JMFC rejected the applicant’s application to set-

aside the ex-parte proceedings.

Brief facts of the case which are relevant for the disposal of this petition are that non-applicant No.1/wife filed an application under Section 125 of

Cr.P.C. for getting maintenance from the applicant/husband which was registered as M.J.C. No.17/2005 and was tried by the JMFC, Sagar. During

trial of the case, on 06.12.2006, at the stage of applicant’s evidence (non-applicant’s in this petition), witness Sheel Chandra Jain was present

but applicant (non applicant of that case) and his counsel did not appear before trial court during hearing of the case for cross examining the witness.

So, learned JMFC closed the applicant’s opportunity of cross examining the witness and directed to proceed ex parte against the applicant and

fixed the case for final arguments. Thereafter on the same day learned counsel of applicant filed an application for setting aside the ex parte order

which again was rejected by the trial court. Against that order, applicant filed Criminal Revision No.7/2007 which was also dismissed by the Second

Additional Sessions Judge, Sagar. Being aggrieved from that order applicant has preferred this petition.

Learned counsel for the applicant submitted that during trial of the case applicant filed an application under Order 6 Rule 17 of CPC for permitting the

applicant to incorporate the proposed amendment in his reply. Learned JMFC rejected that application vide order dated 19.09.2006. Being aggrieved

from that order, applicant filed Criminal Revision No.234/2006. On 06.12.2006 that revision was also fixed for hearing and revisional court called for

the record of the case from the trial court. That being so, ex parte proceedings should not have been done by the trial court on said date and

opportunity of cross examining the non applicants’ witness Sheel Chandra Jain should have been given to applicant by the learned JMFC since

applicant cooperated in the trial throughout and the amount of interim maintenance was also being regularly paid by the applicant to the non applicant.

No delay was occasioned on behalf of the applicant. At Least one opportunity should have been afforded by the court below and without affording

adequate opportunity of hearing, passing of an exparte order contravenes the provisions of law as well as principles of natural justice. Learned trial

court without appreciating these facts wrongly rejected the applicant’s application. The revisional court also did not properly appreciate the

procedure engrafted under Section 126 of CrPC and mechanically rejected the applicant's revision. So, the order passed by the trial court proceeding

ex parte against the applicant deserves to be quashed and opportunity of cross examination of witness and for giving evidence be given.

Learned counsel for the non-applicant No.1 opposed the prayer and submitted that from the record, it is evident that non-applicant filed application

under Section 125 of Cr.P.C. in the year 1996 and due to delaying tactics of the applicant, case remained pending for a long time. At the stage of

statement of non-applicant, applicant took long time. Thereafter, at the time of recording the statement of non-applicant’s witness namely Sheel

Chandra Jain, father of the non-applicant, applicant also took time. Before 06.12.2006 earlier also on two occasions applicant had also taken time for

his cross-examination. On 06.12.2006 applicant again sought time for cross-examination of this witness without assigning any proper reason. So

learned trial court did not commit any mistake in rejecting the applicant’s application.

This Court has gone through the record and the arguments put forth by the counsels of both the parties. It appears from the record that non-applicant

No.1 filed the application in the year 1996 and her examination-in-chief was also completed on 04.11.1997 while her cross-examination was finally

completed by the applicant on 03.08.2006 after taking several opportunities for her cross-examination. Thereafter on 11.10.2006 non-applicant’s

witness Sheel Chandra Jain appeared before the trial court for giving the statement. On that day his cross-examination could not be completed then

case was fixed for his remaining cross-examination on 08.11.2006. On that day, applicant again sought adjournment for his cross-examination.

Learned trial court on the payment of cost of Rs.2000/- gave last opportunity to applicant to cross-examine this witness and fixed the case on

09.12.2006. On that day, again applicant and his counsel did not appear before trial court to crossexamine this witness which shows that applicant was

negligent and the reason assigned by the applicant for not appearing before the trial court on the day fixed for cross examining the witness also does

not appear to be proper but it also appears from the record that other cases are also pending between the applicant and non-applicant No.1 in District

Court Sagar including the divorce application filed by the applicant.

So looking to the fact that the applicant gets an appropriate opportunity to defend the case, in the interest of justice, the petition is allowed and the

impugned order dated 06.12.2006 is set aside, subject to payment of cost of Rs.11,000/-. The Trial Court is directed to grant him one opportunity to

cross-examine the non-applicant’s witness Sheel Chandra Jain. It is made clear that if the applicant does not cross-examine Sheel Chandra Jain

on the date so fixed by the trial Court in this regard, the trial Court shall not be bound to give any further adjournment without any sufficient reason for

further cross-examination of this witness and then opportunity also be given to non-applicant No.1 to produce remaining witness if she wants to

produce them. Thereafter, fix the case for applicant’s evidence and dispose of the case as early as possible preferably within six months from the

date of receiving the order, because case is pending since 1996. Both the parties shall cooperate with the trial Court to get the matter disposed of if

necessary by leading evidence day by day.

Both the parties are directed to appear before the trial Court on 20/03/18. The non-applicant No.1 (applicant of the case) is entitled to get interim

maintenance @ Rs.2000/- P.M. as she would have got if the case were pending before the trial court from the date of order i.e, 06.12.2006. The

amount which the applicant has paid in lieu of order of maintenance, should be adjusted from this amount.

Office is directed to send the record to trial Court before the said date.

With the aforesaid, the petition is disposed of. C.C. as per rules.