Crl.Misc.No.M-17838 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-17838 of 2009 Date of Decision:- 07.07.2009 Mohsin ....Petitioner(s) vs. Mumtaj ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Rajinder Singh Rana, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. (Oral) The present petition under Section 482 Cr.P.C. has been filed praying for quashing of the order dated 27.4.2009 (Annexure P-1) passed by the Additional Sessions Judge, Yamuna Nagar and the orders dated 27.1.2009 and 17.4.2006 (Annexures P-2 and P-3) passed by the Judicial Magistrate, Ist Class, Jagadhri and order dated 27.7.2006 (Annexure P-4) passed by the Chief Judicial Magistrate, Jagadhri. Counsel for the petitioner contends that the petitioner had challenged the order dated 27.1.2009 passed by the Judicial Magistrate, Ist Class, Jagadhri, by way of revision petition before the learned Additional Sessions Judge, Yamuna Nagar which was dismissed on 27.4.2009. He submits that the order has primarily been passed by the learned Additional Sessions Judge on the ground that the order impugned in the revision petition was preferred by the petitioner beyond the period of limitation. Crl.Misc.No.M-17838 of 2009 -2- Counsel for the petitioner had also argued that even on merits, the order impugned dated 27.1.2009 passed by the Judicial Magistrate, Ist Class, Jagadhri, in the revision petition before the learned Additional Sessions Judge, Yamuna Nagar, was not in accordance with law. I have heard counsel for the petitioner and have gone through the records of the case. Respondent herein is the wife of the petitioner and had filed an application under Section 125 Cr.P.C. for grant of maintenance on 20.9.2004. In response to the notice thereof, the petitioner appeared before the Court and filed reply to the said application. An interim maintenance was directed to be paid by the petitioner at the rate of Rs.1500/- per month to his wife Mumtaz. The case was adjourned to 17.4.2006, on which date no one appeared on behalf of the petitioner and he was proceeded against ex parte. A revision petition was preferred by the petitioner challenging the order dated 17.4.2006 vide which the respondent was granted interim maintenance by the trial Court. On 10.10.2006, when the revision petition came up for hearing, the same was dismissed as having been rendered infructuous as in the light of the ex parte proceedings, an ex parte judgment stood passed against the petitioner wherein the wife was granted the maintenance of Rs.4,000/- per month under Section 125 Cr.P.C. The petitioner filed an application on 30.1.2007 under Section 126 Cr.P.C. for setting aside the ex parte order dated 17.4.2006 and the ex parte judgment dated 27.4.2006. The learned trial Court dismissed the said application vide order dated 27.1.2009. It is this order which was challenged by the petitioner before the revisional Court. Counsel for the revision-petitioner has submitted that the Crl.Misc.No.M-17838 of 2009 -3- petitioner did not appear before the trial Court as he was conveyed by his counsel that in the revision petition preferred by the petitioner against the interim maintenance granted to the wife, the revisional Court had stayed the proceedings before the trial Court. He further submits that for this reason, the petitioner could not appear before the trial Court and was not aware of the ex parte proceedings initiated against him. It was further submitted that the petitioner only came to know about the said order of ex parte proceedings when warrants were issued against him. The petitioner was very much interested in contesting the application of the wife under Section 125 Cr.P.C. and had approached the trial Court immediately on his coming to know about the ex parte proceedings. On the other hand, counsel for the respondent-wife had submitted that firstly the application for setting aside the ex parte proceedings under Section 126 Cr.P.C. was barred by limitation and there was no provision for condonation of delay in filing the application. It was further submitted that it was only when the revision petition was dismissed as infructuous on 10.10.2006, the petitioner came to know that ex parte proceedings have been initiated and an ex parte judgment has been passed against him. The petitioner could have at that stage itself filed an application for setting aside the ex parte proceedings. Apart from that, the petitioner had been appearing along with his family members before the Criminal Court at Jagadhari in the criminal proceedings. The dates fixed before the Criminal Court were 8.3.2006, 2.6.2006 and 6.6.2006 where again the petitioner would have come to know about the ex parte order and ex parte judgment passed against him. Considering the rival contentions of the parties, the learned Crl.Misc.No.M-17838 of 2009 -4- revisional Court has proceeded to come to a conclusion that despite of being well aware of the ex parte proceedings and the ex parte judgment having been passed against the petitioner in view of the above-mentioned facts, the petitioner had failed to take necessary steps in accordance with law within the time stipulated by the Statute. The reasons which have been given by the petitioner for not approaching the Court under Section 126 Cr.P.C. are not sustainable on the facts of the case and in any case, the application under Section 126 Cr.P.C. was filed after a delay of one year and nine months after the passing of the ex parte order passed against him. The limitation prescribed under Section 126 Cr.P.C. for setting aside the order passed under Section 125 Cr.P.C. having expired and there being no reasonable and justifiable explanation for the petitioner in approaching the Court within the time stipulated nor any explanation forthcoming for the delay in filing the application and further that the explanation given was factually not sustainable as per the records, the revision petition preferred by the petitioner was dismissed. The order passed by the Court below is fully justified and is in accordance with law and, therefore, does not call for any interference by this Court. Accordingly, the present petition stands dismissed. July 07, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE