CR.RA/406/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 406 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAJPUT MAHESHBHAI RAMPRASAD - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR RAJESH K SHAH for Applicant(s) : 1,MS RASHMI R JOHRI for Applicant(s) : 1, MR KC SHAH APP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, MR AMIT N PATEL for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 16/01/2008 ORAL JUDGMENT : 1. Rule. Learned A.P.P. K.C. Shah waives service of notice of Rule on behalf of the respondent No. 1 – State and leaned advocate Mr. CR.RA/406/2007 2/6 JUDGMENT Amit N. Patel waives service of notice of Rule on behalf of the respondent No. 2. 2. In the facts and circumstances of the case with the consent of the learned advocates for the parties, this criminal revision application is taken up for final hearing today. 3. Petitioner has filed this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr. P.C.”)and challenged the judgment and order passed by learned 5th Addl. Civil Judge and J.M.F.C., Gandhinagar on 16-4-2007 in Criminal Misc. Application No. 183 of 2006. 4. The parties are husband and wife. The respondent – wife filed proceedings u/s 125 of the Cr. P.C. and claimed allowance for her maintenance from the petitioner. According to the petitioner, he appeared in the proceedings filed by the respondent – wife and filed his reply. The respondent – wife had filed affidavit in the form of examination-in-chief but his advocate did not inform about the date of adjournment of the proceedings and therefore he could not remain present before the court and CR.RA/406/2007 3/6 JUDGMENT trial Court without affording opportunity to cross-examine the respondent – wife passed the impugned judgment. According to him, the matter proceeded ex-parte on account of negligence of his advocate and amount of maintenance at the rate of Rs.1,500/- p.m. was awarded to the respondent – wife from the date of the application. Being aggrieved by the said decision, the present criminal revision application is filed. 5. Heard learned advocate Mr. R.K. Shah for the petitioner, learned A.P.P. Mr. K.C. Shah for the respondent No. 1 – State and learned advocate Mr. Amit N. Patel for respondent No.2 – wife. 6. The respondent – wife filed proceedings u/s 125 of the Cr. P.C. claiming maintenance from the petitioner – husband. The petitioner appeared in court and filed reply resisting the application. It appears that the respondent – wife filed her affidavit Exh. 6 dated 26-9-2006 in the form of examination-in-chief. It appears that when the affidavit was filed neither the petitioner nor his advocate was present and therefore right of cross- examination was closed but thereafter advocate for the petitioner appeared and made an application to reopen his right to cross-examine CR.RA/406/2007 4/6 JUDGMENT the respondent – wife. Therefore, application was granted and right of cross-examination was reopened and the matter was adjourned for cross- examination of the witness. Thereafter on 15-2- 2007 neither the petitioner nor his advocate appeared in the Court and therefore the right of cross-examination was closed. Thereafter the impugned judgment was pronounced on 16-4-2007. According to the petitioner – husband, he was not informed by his advocate about the date of adjournment of the matter and therefore he could not appear in the Court to cross-examine the witness. It is settled proposition that a matter has to be decided on merits of the case and every opportunity should be afforded to a party in the proceeding. It appears that the advocate did not inform the petitioner about the date of hearing and therefore he could not remain present to cross-examine the witness. Therefore, it was negligence of the advocate and a party cannot be penalised for negligence of his advocate. The respondent - wife filed application claiming maintenance alleging negligence and refusal to maintain by the petitioner. A maintenance proceedings contained in Chapter IX of the Code is essentially a civil proceeding. Therefore, it would be in the interest of justice to set aside the judgment and permit the petitioner - husband to cross-examine witness and permit CR.RA/406/2007 5/6 JUDGMENT him to adduce evidence in support of his defence by awarding costs. Therefore, the impugned judgment is required to be set aside. However, in view of the fact that the respondent – wife had to incur expenses for defending this proceeding on account of no fault on her part, the petitioner is required to be directed to pay costs. 7. In the result, this criminal revision application is allowed. The impugned judgment dated 16-4-2007 passed in Criminal Misc. Application No. 183 of 2006 by learned 5th Additional Senior Civil Judge and JMFC, Gandhinagar is quashed and set aside and the matter is remanded to the trial Court with direction to permit the petitioner husband to cross-examine the respondent – wife and decide the same in accordance with law after affording opportunity of hearing to the parties on the condition that the petitioner shall pay to the respondent wife Rs.3,500/- towards costs. It is expected that trial Court shall decide the matter as expeditiously as possible preferably within a period of six months from the date of receipt of writ of this order. 8. It is made clear that the amount deposited by the petitioner - husband and withdrawn by the CR.RA/406/2007 6/6 JUDGMENT respondent – wife shall be subject to the outcome of the proceedings pending before the trial Court. The petitioner shall deposit the amount of costs awarded by this Court in the trial court. Rule is made absolute to the aforesaid extent. D.S. is permitted. (Bankim N. Mehta, J.) /JVSatwara/