After giving anxious consideration to the submissions
made by both the parties and particularly perusing the application at
Exh.29 made by the petitioner, there is all the substance against the
submissions canvassed that the same miserably suffer
from the
defect of vagueness. The learned counsel for the respondent no.1
was very much right in submitting that considering the averments
therein, no fault can be found out with the lower Court in coming to
the conclusion of the petitioner was not diligent in proceeding with
the matter and being interested in prolonging the same. However,
merely because of defective pleadings, the cause cannot be
permitted to be suffer.
The record undoubtedly reveals that the
petitioner had cross-examined the respondent no.1. It also reveals
that the petitioner was contesting the matter on merits. Similarly
de hors the material regarding the dates on which matter was fixed
for cross-examination of respondent no.1 or regarding the dates on
which petitioner attended for depositing interim maintenance, no
legitimate inference of petitioner avoiding to attend the proceeding,
as erroneously drawn by trial Court is permissible.
In the said
circumstances, the interest of justice demands giving an opportunity
to petitioner as justice is not only to be made but must appear to
have been made.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No.604/2012
Bhimrao s/o Hariman Jamnik,
v
Sau. Kavita Bhimrao Jamnik,
CORAM : P.D.KODE, J.
DATED : JULY 03, 2013
Heard.
Rule. Rule made returnable forthwith. Heard by consent
2.
3.
The petitioner-husband/respondent no.1 in an application
under Section 12 of the Protection of Women from Domestic
Violence Act,2005 preferred by wife/respondent no.1 herein, has
challenged the order dated 04.08.2012 passed in said proceeding
upon Application Exh.66 rejecting his prayer for setting aside the
order of no-cross order passed in the original proceeding and
confirmed by the appellate Court by rejecting an appeal preferred by
him against said order.
Mr. Mahesh Rai, learned counsel for the petitioner
4.
submitted that the petitioner since his appearance was contesting
said proceeding taken by his wife/respondent no.1 and the same is
It is submitted
evident from her cross-examination made by him.
that unfortunately the petitioner was not able to remain present in
the said proceeding when the matter was listed for further cross-
examination of respondent no.1 and the order of no-cross came to
be passed against him. The petitioner submitted an application Exh.
66 for setting aside the said order.
However,
the trial Court
rejected the same mainly on the count that he is delaying the
proceedings.
from
the
It is urged that the trial Court drew such inference
fact
of
meanwhile
himself
maintenance amount in the Court.
having
deposited
the
It is urged that the said order
The learned counsel submitted that act of petitioner in
5.
was maintained by the Appellate Court.
cross-examining the respondent no.1 is indicative that he was
interested in contesting the matter on merits. It is urged that the
same is also clear from the earlier application Exh.29 made by him.
It is submitted that in the said circumstances the matter would be
It is urged that even assuming that
contest merits of the matter.
decided against him in spite of himself not getting full opportunity to
there were some laches or non-diligence on his part, still allowing
the matter to be decided without himself getting the full opportunity,
would be
injustice on him.
It is urged that on the contrary no
prejudice would be caused to the respondent no.1 if he is given an
opportunity to contest the matter on merits on terms and conditions
as deemed fit and proper by the Court. It is urged that question of
prejudice being caused to the respondent no.1 can be avoided by
imposing certain condition on him. It is submitted that the petitioner
on his part undertakes this Court to clear all the arrears of interim
maintenance up-till a date as stipulated by this Court and
undertakes to co-operate for expeditious disposal of the proceeding
before the trial Court.
6.
It is submitted that the trial Court is fully empowered to
exercise powers under Section 311 of the Code of Criminal
Procedure for meeting the situation by recalling the respondent no.1
for further cross-examination, for giving an opportunity to the
evidence for the just decision of the case.
7.
petitioner for serving the ends of justice by having the necessary
The learned counsel for the respondent no.1 opposed the
aforesaid submissions by submitting that non-diligence on the part
of the petitioner is spelt out from the reasons recorded in the orders
by
drawing
the
attention
counsel
passed by the appellate Court as well as the trial Court. The learned
to the
application
Exh.66
submitted that the vagueness of the averments in the said
application itself gives an impression regarding the real intent of the
petitioner being to prolong the proceedings.
It is submitted that
hardly any case is made for interfering the concurrent findings
recorded by the trial Court and the appellate Court against the
petitioner and if the Court is inclined to entertain the petition, then
heavy costs and the necessary
the petitioner be saddled with
direction be given for ensuring that the proceedings before the trial
Court are expeditiously disposed of.
8.
After giving anxious consideration to the submissions
made by both the parties and particularly perusing the application at
Exh.29 made by the petitioner, there is all the substance against the
submissions canvassed that the same miserably suffer
from the
defect of vagueness. The learned counsel for the respondent no.1
was very much right in submitting that considering the averments
therein, no fault can be found out with the lower Court in coming to
the conclusion of the petitioner was not diligent in proceeding with
the matter and being interested in prolonging the same. However,
merely because of defective pleadings, the cause cannot be
permitted to be suffer.
The record undoubtedly reveals that the
petitioner had cross-examined the respondent no.1. It also reveals
that the petitioner was contesting the matter on merits. Similarly
de hors the material regarding the dates on which matter was fixed
for cross-examination of respondent no.1 or regarding the dates on
which petitioner attended for depositing interim maintenance, no
legitimate inference of petitioner avoiding to attend the proceeding,
as erroneously drawn by trial Court is permissible.
In the said
circumstances, the interest of justice demands giving an opportunity
to petitioner as justice is not only to be made but must appear to
have been made.
9.
Resultantly, the petition is allowed. The orders rejecting
the application for permitting the petitioner to cross-examine
respondent no.1 is hereby quashed and set aside and said
application is allowed subject to the petitioner clearing all the
arrears of maintenance on or before 31st of July, 2013 and
additionally paying costs of Rs.2000/- to the respondent no.1. Upon
such a compliance, the trial Court to permit the petitioner to cross-
examine respondent no.1 and thereafter to decide the proceeding
as expeditiously as possible
in accordance with law preferably
shall
proceeding.
cooperate
for
expeditious
disposal
of
the
said
On failure to make the compliance regarding the
parties
within a period of three months from the date of this order. Both the
arrears of maintenance and the payment of costs, the application
Exh.66 shall stand dismissed.
Rule made absolute in the aforesaid terms.
JUDGE
No comments:
Post a Comment